Dáil Éireann díospóireacht -
Thursday, 24 Nov 1955

Vol. 153 No. 8

Committee on Finance. - Fatal Injuries Bill, 1954—Committee and Final Stages.

Section 1 agreed to.

SECTION 2.

Mr. Everett

I move amendment No. 1:—

In sub-section (2), paragraph (a), line 26, to delete "and"; and to add a new paragraph as follows:—

(c) a person in loco parentis to another shall be considered the parent of that other.

The purpose of this amendment is to cover the case of a person to whom the deceased stood at the time of his death in the position of a parent and the case of a person who stood in the position of a parent of the deceased when he died. The amendment will cover informally adopted children and nephews and nieces living with, say, an uncle or aunt and being reared and maintained by that uncle or aunt. We reconsidered the whole question of extending the range of dependents and decided that the present amendment represents the furthest we ought to go. Uncless and aunts who are dependents are not covered where there is no question of being in the position of a parent. The danger, as I pointed out on the Second Stage, is that if we make the provision wider it is difficulty to know where to stop. Insurance companies might be tempted to increase their premiums. Also juries could easily tend to award the same sum irrespective of the number of dependents so that the real sufferers, like the wife and children, would lose.

A further point is that where a man contributes to the support of his relatives the amount of his contribution is peculiarly within the knowledge of those relatives when he dies, and it would be extremely difficult for a defendant in a fatal case to disprove the allegation of, say, a distant relative that he was, in fact, getting a substantial allowance from the deceased. Apart from this, a man is only bound to answer for the probable and reasonable consequences of his act and there is a very strong case to be made against forcing him to pay very large damages because the person he killed was, out of the goodness of his heart, contributing to a large and non-defined number of people. We are confining the provision to what is normally considered the family. We are adding brother and sisters, adopted persons, illegitimate persons and those who are treated as children.

To put it shortly, we think that only those people a man has to support by reason of a legal obligation existing normally or assumed by him in a particular case and those people that he supports because of close blood kinship should be covered. If you take in aunts and unless it is difficult to justify excluding cousins.

Mr. Moran

I have an open mind on this matter, with certain reservations, and what I say to the Minister is said sincerely out of my experience. I quite agree that under Lord Campbell's Act only the wife, husband, parent or child could sue. I have come across very unjust cases where the brother and the sister were precluded from suing although the brother or the sister might be the main dependents of the deceased. If I were in the Minister's shoes, I would be very slow to go outside Lord Campbell's Act. Brother and sister could be included, but I would be slow to go outside these relationships. I agree with the Minister's suggestion that "child" should include an illegitimate child if he is a dependent, but if you go outside these categories I think you would see no end to this matter.

I can assure the Minister that it is not beyond the ingenuity of the people of Ireland, particularly in the rural districts, to attempt to prove dependency to the extent of the 31st cousin if they can get away with it.

There is no doubt at all but that insurance premiums will go sky high as a result of this Bill. I would ask the Minister or his colleagues to keep an eye on this aspect of the matter. Theoretically, they will say, that there is a new liability being imposed on them, whereas, in fact, it is only the ordinary cases that will come in under this measure. Insurance companies will lay down as a proposition that they have so many of these mythical claims to cover up all the people the Minister proposes to bring in under the Bill. In fact their liability in the main—in 95 per cent. of the cases—will be the same. In fact, they will be the same people who formerly could sue who will be suing under this measure.

You will have the odd man out. Approximately 5 per cent. might come in under this measure. I have no doubt that insurance companies are going to put up their rates under this Bill just the same as they did under the Workmen's Compensation Act. I do not say that under that Act they were not entitled to increase them to a certain extent, but I have grave doubts whether they were entitled to increase their rates to 25 per cent. on top of the existing rate as they did under the Workmen's Compensation Act. This is an important matter. This is, in fact, the nigger in the woodpile in this legislation because these people outside the insurance companies are going to take advantage of this Bill as an excuse to cover what they will say are potential liabilities.

The Bill might deal with certain increases in damages but in 95 per cent. of the cases the Bill will not apply. It is only in the odd cases that it will apply. I would like an assurance from the Minister that before any further increase in premiums under this Bill is allowed the matter will be investigated by the Government if this measure is going to be used as an excuse for increasing premiums.

As far as the ministerial amendment is concerned, I am prepared to let it go. However, my view in this matter is rather conservative. I know the ingenuity of the people outside the main people concerned, namely, the wife, husband, parent and child and, I suppose, brother and sister. I know how ingenious people can be in endeavouring to prove dependency claims. I would not go quite so far as the Minister. I would confine it to wife, husband, parent and child, adding in brother and sister, if the Government feel they should go that far.

I did not think I would have an opportunity of making the point I put to the Taoiseach a couple of moments ago, but I feel particularly the possibility of the main loser being lost sight of with all those people out on the wings. I would be much happier about this legislation if it were written on the Statute Book that the jury would be directed to give 80 per cent. of the damages to the widow and let the other dependents share the remaining 20 per cent. between them. I would feel a lot happier if that were done.

Rightly or wrongly, I am convinced that when this Bill is passed, juries will be confused with all the people concerned. I can envisage a case which I am sure the Taoiseach can envisage also. You might have a wage earner who was killed. He may have a widow and some children. He has an old mother-in-law or a grandmother somewhere who says that she got £5 from him at Christmas. The deceased wage earner may have a couple of other relatives on the outskirts who may say that once or twice a year they got some money from him. The whole lot will take part in this action and the jury will be left to assess the damages and the judge will have to direct them under this measure. All these people from the mother-in-law, the grandmother, the illegitimate child and the 31st cousin will come in. The 12 good men on the jury——

The Taoiseach

The mother-in-law does not figure in this Bill.

Mr. Moran

Everybody is in this Bill except the mother-in-law.

The Taoiseach

The sisters are in but the cousins and aunts are not.

Mr. Moran

At all events, the Taoiseach and possibly the Minister understand the matter. The 12 good men on the jury are left to assess damages in the situation which I envisage. In Dublin at the present time an extraordinary development has grown up. You may have three men on a jury who consider the plaintiff should get only £200. You will have five others who consider he should get £2,000, and then there are a few in the middle. They are in the main busy and unpaid men. They are left in the jury-room until they reach a verdict. What is happening is that each man writes down what he would give himself. That is put into a hat, totalled up and divided by 12. The Taoiseach knows and we all know that that is happening, but it certainly is an extraordinary performance. I want the Minister to visualise a jury assessing damages in a case where you would have a widow, a child and the other people brought in under this Bill. They must be told by the judge that they are all entitled to claim. I wonder in all this wilderness just how these 12 men will deal with the widow.

My suggestion may not be the best in the world but in the case of a widow there should be some provision whereby the jury would be directed that a certain amount should be given to the widow. I should write into the Statute Book that they be directed that, whatever they found in damages, the widow would get at least 80 per cent. If you leave the matter the way it is, I am afraid juries will get confused and the main loser, the widow, will be shot down under this Bill. Whilst I accept the amendment, I think that the Taoiseach and the Minister should take second thoughts about the matter.

Mr. Everett

It was in an endeavour to meet reasonably the wishes of all sides of the House that we decided to bring in the extra dependents. Deputy de Valera suggested a much larger number of dependents.

Mr. Moran

I do not agree.

Mr. Everett

It is not a question of all types of loss. Damages are only allowed for pecuniary loss. Nothing is allowed for sentimental loss.

Amendment put and agreed to.

Section 2, as amended, agreed to.

SECTION 3.

Mr. Everett

I move amendment No. 2:—

To delete sub-section (2) and substitute the following new subsections:—

(2) Only one action may be brought in respect of the death.

(3) The action may be brought by the personal representative of the deceased or if, at the expiration of six months from the death, there is no personal representative or no action has been brought by the personal representative, by all or any of the dependents.

(4) The action, by whomsoever brought, shall be for the benefit of all the dependents.

(5) The plaintiff shall furnish the defendant with particulars of the person or persons for and on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered.

The object of this amendment is to make it quite clear, firstly, that only one action may be brought in respect of the death. Secondly, the action if not brought by the personal representative within six months may be brought by all or any of the dependents. Thirdly, the action is to be for the benefit of all the dependents, no matter who brings it. Finally, the plaintiff must supply particulars of the dependents and the nature of their claim to the defendant. The amendment is declaratory of the existing statutory law in which it makes no change. The provisions in the amendment were omitted from the Bill because it was thought at the time that there was no need for them. On reconsideration, however, following the Second Stage debate we decided to write in the existing provisions in the Fatal Accidents Acts so as to remove any doubt and to avoid the danger of an argument being used to suggest that we were deliberately changing the existing law in this matter.

Mr. Moran

I am sure the Minister appreciates that there are difficulties in this matter. If somebody brings an action it is presumed under the Minister's amendment that it is being brought for all parties. I put it to the Minister that everybody else is ruled out except the person who brings the action. Take the case of a person from Achill Island, where people are usually away over the other side for ten or 11 months of the year. If, shall we say, A brings an action within the six months, what is the position of, say, B, who, although having a financial interest in the matter and being a dependent, is not there at the time? As far as I can understand from the amendment, he is precluded. I would like to know if A brings the action, has B any rights against him? It appears from the Minister's amendment that A can bring the action to the exclusion of the others. Does it mean that other persons who may have an action are barred or have they any rights against the person who brings the action?

The Taoiseach

The position as set out in this amendment is as the Minister has stated. The existing law and the precise problem that Deputy Moran has posed here have been the subject of judicial decision. It is clear beyond all doubt that if, in the case put by Deputy Moran, A brings an action about which B knows nothing but is a dependent, B cannot bring another action. He is not ruled out, however, because it is mandatory on A to set forth in his pleadings or to give particulars otherwise to the defendant of all the dependents. The action is brought and is bound under law to be brought not merely on behalf of A but on behalf of all the dependents. It is the duty of the defendant, who knows he is going to be stuck, to make absolutely certain that by some method, either on the pleadings or by the necessary notice requiring particulars and the answer to particulars, all the dependents are before the court. If the particular dependent, B, in the case put by Deputy Moran is not satisfied with the action, he can come in himself and apply to be added to the action; or, if the court does not take that course, he can attend the hearing and see that his rights are properly put forward by the particular plaintiff. That is the existing law. If that were not the law and if there were ten dependents, you might have ten actions with inevitable confusion and increased costs.

Mr. MacBride

That applies to an actions at present under Lord Campbell's Act and also under the Workmen's Compensation Acts.

Mr. Moran

That is all right so far as the Taoiseach's statements goes. It is all very well for the Taoiseach to say that the dependent B can apply to be joined. I am posing the case of a person who is not there when proceedings are brought within six months of the death. What happens to him once the action is brought? I want to know is there any comeback for him against the party that gets damages? In my view, he is out in the cold no matter what dependency he may prove and as far as I can see from the Minister's amendment, he has no redress afterwards.

It does happen, particularly in the West of Ireland, that you have many people who are away for the greater part of the year. I have often discovered that people with an interest in a case were not there at the time and only discovered that an action had been brought when they came home, six, eight or 12 months afterwards. Once an action is brought and the person concerned does not get time to come back to somebody like myself to be joined as a plaintiff in the proceedings, he is debarred and ruled out.

The Taoiseach

I do not think he will. The case put by Deputy Moran is one that might conceivably occur but if a man is a dependent he will know very well that the person on whom he was depending has been killed, and that he is cut off his dependency. He is very well aware of that and if he is working in England, as in the case put by Deputy Moran, he will very quickly run back if he hears there is an action.

Mr. Moran

The answer to the Taoiseach is in his own Bill. The limit under Lord Campbell's Act was 12 months. It has been extended to three years. Why the extension if the Taoiseach's argument is correct? You are now giving him three years to run back.

Mr. Blowick

Is that not better than shortening it?

The Taoiseach

Supposing a man is injured—I think it actually happened— and he lives for 13 months and then dies as a result of his injuries. Under the law as it stood, before we repealed the Public Authorities Protection Act, his dependents might get nothing in certain cases. That was one of the reasons originally for the three years, not because a fellow is over in England earning money. Anyway if he is earning money he is not a dependent usually. The Deputy took a very bad example.

Amendment agreed to.

Section, as amended, put and agreed to.

SECTION 4.

Mr. Everett

I move amendment No. 3:—

In sub-section (2), lines 6 and 7, to delete "and, if the action is brought by the personal representative, by" and substitute "or".

This amendment is designed to ensure that whether the dependents or the deceased incurred the expenses, damages in respect of them may be recovered. As the section stands at the moment, expenses incurred by the deceased can be recovered only where the personal representative brings the action. As, however, the personal representative acts for the dependents it is only right that, where there is no personal representative, the dependents can recover damages in respect of expenses in the same way as if there was a personal representative. Where there is a personal representative, expenses incurred by the deceased and recovered by the personal representative go to the dependents. The section is designed to cover funeral and medical expenses.

Mr. Moran

I entirely agree with this amendment.

Amendment agreed to.

Section 4, as amended, agreed to.

Sections 5 and 6 agreed to.

An Leas-Cheann Comhairle

Amendment No. 4 has been ruled out of order as tending to impose a charge on State funds by extending the liability of the State in the payment of compensation.

Sections 7 to 10, inclusive, and Title agreed to.

Bill reported with amendments.

Mr. Everett

Would Deputy Moran agree to take all stages now?

Mr. Moran

I will agree to take all stages if the Minister, in his wisdom, and, particularly, the Taoiseach, think that we should let the Bill go on the Statute Book in its present form. They are the people who have to take responsibility for this matter. I want to assure the Minister that I genuinely feel that what I have said about juries is a danger in this Bill. If the Taoiseach or the Minister cannot think of any safeguard that we in this House might apply, it is a matter for them.

The Bill, as a whole, is a Bill that I welcome. I might not go as far as the Minister has gone in this Bill but I am afraid that this question of damages is left too much in the air in the Bill. If the Minister and the Taoiseach are satisfied that it should go through the House in its present form I am prepared to give it to them. If, on the other hand, they would consider that some provision should be made against the dangers I foresee, then they may leave the matter over until next week. I leave it entirely to the Minister and the Taoiseach.

The Taoiseach

I can assure Deputy Moran that the question of damages and the apportionment and assessment of damages gave the Minister and his officials and the Attorney-General and, to some extent, myself, very considerable concern and thought. I am not as happy about the position under this Bill as I would like to be. I would like a greater measure of damages to be given to the dependents on the death than is measured by merely pecuniary loss. We endeavoured to find some other measure of damages but we did not succeed because any other measure of damages appeared to lead to all sorts of difficulties. I would have liked if some Deputy or body interested in this matter had helped us in any way. But the Deputy and the House can be assured that the Minister and his officials gave this matter the deepest consideration and read everything possible that was to be got on it.

On the question of the real matter that is worrying the Deputy, about assessment by juries, that gives me least concern of all the matters that affected me on this Bill, because juries in deciding on the measure of damages in these cases of fatal accidents have before them something which they have not got in ordinary running-down cases of personal injuries to a person who survives, who is injured as a result of the negligence of another party. They have a rule: it is the pecuniary loss. Definite evidence must be given most clearly and specifically to the juries from actuaries of the amount of the pecuniary loss and they measure the amount of the damages on the pecuniary loss. Juries have not to resort and, in my view, do not resort— and if they did and it was known that they did their verdict would be set aside in the Supreme Court—to the device which is popularly believed to happen in the jury room, that is, that each one gives his own opinion as to the amount of the damages, that the total is divided by 12. That does not happen and cannot happen in the case of Lord Campbell's Act.

As regards the widow, I am all in favour of the widow getting all the can, provided she is dependent but, while Deputy Moran can give one hard case, I can give one that would not be a hard case in the same sense. Supposing the widow has a private income of her own and has more money than her husband had?

Mr. Moran

There are no such widows in County Mayo.

The Taoiseach

I would not be a bit surprised if there were a few farmers' wives who had a little in the stocking that perhaps some poor old relative of the deceased coming within the scope of this Bill might not have and there might be conceivably cases where the widow might not be as badly off as a result of the death as some of these poor people whom the Deputy so eloquently described earlier in his speech to-day.

Agreed to take the remaining stages now.

Bill received for final consideration and passed.