Committee on Finance. - Civil Liability Bill, 1960— Second Stage.

I move that the Bill be now read a Second Time.

This Bill is designed to reform the law as to civil liability and the long title of the Bill so indicates. Three important branches of private law are dealt with. Firstly, it is proposed to consolidate and amend the law with regard to the survival of causes of action on death. Secondly, the law as to what the Bill calls "concurrent fault" is being amended and codified. Thirdly, the existing statutory law as to fatal accidents is being re-enacted in the light of the earlier provisions of the Bill. As the Bill is accompanied by a long and comprehensive Explanatory Memorandum, I do not propose to go into detail on the various sections and shall confine myself to a general elaboration of the principles involved.

Part II of the Bill is concerned with the rule that a personal action dies with the person. This rule is a rule of the common law. It finds no place in Scots law. The legal maxim actio personalis moritur cum persona is a very old one and its exact meaning is far from certain. It is inaccurate in that there are many personal actions such as actions in contract, by reason of the common law itself, and actions for wrongs to specific personal property, because of statute, that do not die with the person. Indeed, the existing rule has been said to be one that has been made at all tolerable for a civilised country only by a series of exceptions. At present the special sphere of the rule is the law of tort and it applies on the death of either party to claims for unliquidated damages for personal injuries, fraudulent misrepresentations, defamation and trespass to goods or land. The rule has no application in cases coming within the Fatal Injuries Act, 1956. The dependants of a deceased person killed by the negligence of another have, since Lord Campbell's Act of 1846, been able to recover damages in respect of the financial loss caused to each of them by the death. The range of dependants was enlarged by the 1956 Act to include brothers and sisters, adopted and illegitimate children and also persons in the relationship of in loco parentis.

Sections 6 to 10 of the Bill will allow for the survival of causes of action vested in or subsisting against a deceased person and the Schedule lists for repeal a number of enactments dealing with the matter and dating back to 1285. Certain causes of action which are regarded as purely personal, such as breach of promise and defamation, are being excepted. In these actions the presence of the plaintiff or the defendant may be of the greatest importance.

Section 7 (2) of the Bill will prevent the recovery for the benefit of a deceased person's estate of damages for pain or suffering or personal injury or loss or diminution of expectation of life or happiness. Damages of this type are recoverable in England and in the North under legislation enacted in England in 1934 and followed in Belfast in 1937. It appears that the Law Revision Committee whose report was responsible for the 1934 Act were not alive to the fact that the implementation of their recommendations would have had any such result. In fact some members of the Committee expressed dismay at the development that occurred.

What can in fairness, be described as chaos followed the legislation in England until finally an attempt was made to clarify the law in a decision of the British House of Lords in 1941. This was the case of Benham v. Gambling referred to at paragraph 10 of the Explanatory Memorandum. The result was to restrict considerably damages for loss of expectation of life or happiness.

The English law as laid down in 1941 may be summed up under five heads. Firstly, whether in the case of child or an adult, very moderate figures must be chosen. Secondly, the sum awarded is not to be determined by applying a statistical or actuarial test as to the number of days or years of life of which the individual has been deprived. Thirdly, the test is objective and not subjective. Fourthly, the appropriate figure should be reduced in the case of a very young child. Fifthly, the social position of the deceased, his prospects of worldly possessions and the financial losses or gains that he might have expected are to be excluded. These rules make for a large amount of impossibility and unreality. "In putting a money value on the prospective balance of happiness in years that the deceased might otherwise have lived, the jury or judge in fact is," said Lord Simon in Benham's Case“attempting to equate incommensurables”. It seems that “the thing to be valued is not the prospect of length of days, but the prospect of a predominantly happy life”. In the same case, Lord Simon made the following statement in reference to the social and financial position of the deceased: “Lawyers and judges may here join hands with the moralists and philosophers and declare that the degree of happiness to be attained by a human being does not depend on wealth or status.”

Benham v. Gambling has been subjected to strong criticism in England, and it has been called “the most notable example of judicial legislation in recent years.” Though the underlying motive may have been to prevent the award of substantial damages to the executors of a deceased person for injuries suffered when he was alive, the decision ought logically apply to cases where the injured person survives. However, in the case of a living plaintiff, the difficulty can presumably be overcome by awarding large damages under the head of pain and suffering. The result will still be that it may often be cheaper to kill a man than to main him, but the real solution of this must be to allow for sufficient damages to be awarded to those who suffer loss by the death. The dependants and not the estate are the people who are injured by the death. Where the deceased has willed his property to a stranger there is no strong case for allowing the stranger to obtain, in addition, damages for loss of expectation of life. It should be noted that funeral expenses may be recovered under subsection (4) of Section 7.

The whole problem is a difficult one, especially when one considers that the person who has lost his expectation of life or happiness is dead and that damages are being awarded not to him but to his personal representative on behalf of his estate. In the Bill of the English 1934 Act damages for pain and suffering were excluded, but the relevant provision was omitted in the House of Lords at the private suggestion of Lord Wright who was a member of the Law Revision Committee. Why this was done is not clear nor why, once it was done, exemplary damages were retained.

Be all this as it may, we had to take a decision one way or another. The Government, having carefully considered the various aspects, were satisfied that it would be better to exclude damages for pain and suffering and loss of expectation of life. Though speculation as to what figure can properly be placed subjectively—or objectively—on the shortened expectation of life and the prospective happiness of a deceased person may be very interesting in theory, we are of opinion that it should in practice be avoided and that our Courts should not be asked in particular cases to do the impossible. If our Courts were to follow the English decision, the amount to be awarded must be small. It has been said in England that the maximum figure should be £500. Generally it would seem that the loss of a measure of prospective happiness has been substituted for the shortening of life; and in a case in 1952 a low award was made where the deceased was living apart from his wife who, as a Catholic, would not divorce him. In a case in 1950, £5,249 was awarded to the dependants under the Fatal Accidents Acts and £1 under the 1934 Act. These cases show the absurdities that emerged. In assessing damages under the Fatal Accidents Acts, account must be taken of any damages payable under the 1954 Act to the dependants as beneficiaries in the estate. Similarly, the Court that is assessing damages under the Act of 1934 must take into account the fact that damages under the Fatal Accidents Act have been or may be given. Although the two claims are independent and may accrue for the benefit of different persons, nevertheless, if the provision for the dependants is made good under the Fatal Accidents Acts, the loss consequent on the shortening of life is to be deemed to be pro tanto reduced. There can be no duplication of damages. In England, it is better to claim under the Fatal Accidents Acts because the damages recoverable under the 1934 Law Reform Act are subject to death duties and also subject to the claims of creditors. Before I leave this subject and the peculiarities of awards under the 1934 Act, let me quote from the conclusion of an article, with the title: “Is life a Boon?”, that appeared in the Law Quarterly Review in 1941.

"It is clear," wrote Sir Carleton Allen, "that we need another statute and it is to be hoped that it will not, in the ingenious and diverting manner of so many of our statutes, produce exactly the opposite effect of that which was intended."

Part III of the Bill deals with concurrent fault and embraces the liability of concurrent wrongdoers, contribution between concurrent wrongdoers and contributory negligence. It is proposed not alone to amend the existing law but also to declare it in statutory form. This represents, as the Explanatory Memorandum points out, the first attempt at codification in the realm of tort in any of the common-law jurisdictions. Part III follows the measure suggested by Dr. Glanville Williams of the University of Cambridge in his Joint Torts and Contributory Negligence published in London in 1951. As Dr. Williams himself mentions, his proposals are based on a study of the law in Britain, Canada and this country and also on the work of the United States authority, Professor Gregory, whose Legislative Loss Distribution in Negligence Actions was published in Chicago in 1936. Lawyers and students will be familiar with Dr. Williams's work, which is constantly referred to in the leading textbooks on the law of torts and which was cited with approval by counsel in the High Court case of Moloney v. Llewellyn decided last year and mentioned at paragraph 25 of the Explanatory Memorandum.

Sections 11 to 33 provide for the liability of concurrent wrongdoers and also for contribution between such wrongdoers. The sections will replace the Tortfeasors Act, 1951, which has been found unsatisfactory in practice, and also the common law. "Wrongdoers" will include persons who commit an ordinary civil wrong (tortfeasors), persons who commit a breach of trust and persons who commit a breach of contract. By reason of Section 12, a concurrent wrongdoer will, as in general under existing law, be liable for the whole damage except where the plaintiff is guilty of contributory negligence or in the case of proprietary damage resulting from a collision at sea. Concurrent wrongdoers will be liable to have judgment issued against them together or separately and special provision is being made for cases of insolvency in Section 14.

Sections 21 and 27 will enable a concurrent wrongdoer who is sued by an injured party to recover contribution from a fellow-wrongdoer, as under the 1951 Act; but he must make his claim for contribution in the same action. This is not possible under the Tortfeasors Act, 1951, where all the wrongdoers are not sued together. This was the case in Lee v. Dublin Corporation, decided by the Supreme Court a few years ago and reported in the 1956 Irish Reports. The proposals in the Bill are designed to avoid as far as possible multiplicity of actions in respect of the same set of facts and to ensure that, except in unusual cases, all matters of liability, whether between the injured party and a wrongdoer or between the wrongdoer and fellow-wrongdoers, will be heard and determined in the one action.

Sections 34 to 42 are concerned with contributory negligence. The main provision is that contained in Section 34 (1). It is proposed to provide that in every case of negligence, where both the plaintiff and the defendant are at fault, each party will pay for his own share in the responsibility for the damage. Under existing law, a plaintiff fails in a negligence action if he has himself been guilty of contributory negligence, unless he can prove "last opportunity" of the defendant. Apportionment for common fault was introduced in the Continental legal systems during the last century. It also prevailed in maritime cases, the original Admiralty rule being equal division of loss. In the common law jurisdictions for causes of actions arising on land, the first step was taken in Canada in 1924. As a result of a recommendation of the Law Revision Committee in 1939, the British Parliament enacted the Law Reform (Contributory Negligence) Act, 1945. This legislation was followed in New Zealand and Western Australia by legislation passed in 1947 and in Belfast by legislation passed in 1948. In South Africa an Apportionment of Damages Act was enacted in 1956.

Apportionment legislation has met with almost universal approval. There has, however, been in certain jurisdictions a movement away from the notion of common fault towards that of absolute liability in the case of motor accidents. In French law, liability for such accidents is strict and the presumption of responsibility is rebuttable only on proof of what is known as force majeure or cas fortuit, or some outside cause not imputable to the defendant. The Cour de Cassation or final French Court of Appeal has held that where two motorists collide, each party must pay for the damage done to the other car and its driver and passengers. This is the opposite of the idea that once a dangerous thing is moved by a human agency, and becomes dangerous only when so moved, the damage is caused by the human being and not by the thing.

The French concept of applying to car accidents what we know as the rule in Rylands v. Fletcher may appear illogical, unless it is understood that, insurance against third-party risks being much commoner than insurance of oneself and one's own car, the whole of the loss is far more likely to fall on insurance companies than if any other solution had been adopted. The practical result of collisions between motor cars is very much the same with us. As Deputies will be aware, where two insurance companies are involved they apply the “knock-for-knock” arrangement, under which each company shoulders the loss suffered by the party it has insured. Though in France each company bears the loss of the party it has not insured—in other words, the other way round—the end result as far as insurance companies are concerned is the same, because what a company loses on the swings in some cases it gains on the round-abouts in others.

In Quebec and Ontario, there is a presumption of responsibility in every car accident where one part is a motorist and the other is not; and the onus of disproving negligence is upon the owner or driver. In Saskatchewan, there is a state insurance scheme and compensation is paid from a central fund irrespective of the driver's fault. All owners and drivers contribute to the fund by paying premiums. This goes much further than the French system or our "knock-for-knock" system in that it operates whether or not each party is a motorist. The first Saskatchewan legislation was passed in 1946 following the report of an inter-departmental committee. The idea of extending to car accidents what is the principle of workmen's compensation had been propounded in New York in 1932 by the Columbia University Committee on Compensation for Automobile Accidents.

So much for the comparative aspect of the negligence problem. Let me now give an example of what apportionment of responsibility as proposed in Section 34 of the Bill will mean in practice. Two motorists A and B are involved in an accident through the negligence of each, so that A suffers damage to the extent of £500 and B to the extent of £100. It is held that A's responsibility amounts to four-fifths of the total responsibility and B's to one-fifth; that is to say, the proportion of responsibility is 4/1. A will recover from B one-fifth of his damages or £100 and B will recover from A four-fifths of his damages or £80. Thus, on balance B will owe A £20. A will suffer his original damage (£500) less £20, or £480, and B will suffer his original damage (£100) plus £20, or £120. This is a fair and reasonable approach and accords with distributive justice.

Though there is no need for a last opportunity rule in a system of apportionment, it is not quite clear whether and to what extent the rule has survived the 1945 Act in England. Moreover, something approaching very close to "last opportunity" has been introduced into Admiralty cases. As a Canadian authority points out the appellate courts in England, after the Judicature Act of 1873 had allowed appeals from the Admiralty Division of the High Court, "failed to realise that last clear chance was fashioned to alleviate the harshness of another common-law rule unknown to Admiralty." This was the common-law rule of "all or nothing." I was rather surprised to discover that "last opportunity" has even crept into French law to some extent and a case decided by the Cour de Cassation in 1928 has been referred to as the French Davies v. Mann. I do not propose to go into the complexities of “last opportunity” which, I am afraid even the most skilled lawyers find difficult fully to comprehend and expound. Suffice for me to point out that, in order to avoid any doubt in the matter, it is proposed in section 34 (2) (b) specifically to abolish the rule in its particular applications. This will obviate the confusion which has arisen in England by differing statements of judges as to the effect of the 1945 Act. In addition, we are following the precedent set by South Africa in her Apportionment of Damages Act, 1956, of which I have already spoken.

Sections 43 to 49 of the Bill contain general provisions dealing with the law of concurrent fault. The principal section is Section 47, which covers collisions at sea. The section proposes to re-enact, subject to certain desirable amendments, the existing law as contained in the Maritime Conventions Act, 1911. That Act replaced the old Admiralty rule and was designed to implement the Brussels Convention of 1910. This it did not fully do, and the omission is being remedied in Section 47.

Parts IV and VI of the Bill propose to re-enact the Fatal Injuries Act, 1956, and to amend Section 18 of the Air Navigation and Transport Act, 1936. Part V makes certain changes in the Workmen's Compensation Acts, 1934 and 1953. These changes are purely consequential and are being made solely to keep the relevant provisions of these Acts in line with the amendment of the law of contributory negligence proposed in Section 34 (1).

I trust that the Explanatory Memorandum has been of assistance to Deputies in studying the proposals in this Bill. This is in very many respects a technical and difficult Bill and, for that reason, it was decided to accompany it with a longer and more detailed commentary than is usually called for in the case of Bills that come before the House. As I said earlier and as the Memorandum explains, Part III of the Bill is based on the measure suggested by Dr. Glanville Williams, at present in the University of Cambridge and formerly Quain Professor of Juris-prudence in the University of London. Dr. Williams at an early stage was kind enough to offer us every help. He was as good as his word; and I should like to express to him our thanks for his invaluable assistance and for his readiness at all times to place at our disposal the results of his scholarship and research not alone in regard to concurrent fault with which his book, Joint Torts and Contributory Negligence, is concerned but also in regard to problems that we had to consider in connection with the survival of causes of action on death. We are extremely grateful to him.

Copies of the Bill and of the Explanatory Memorandum have been forwarded to the members of the Judiciary, to the Bar Council, to the Council of the Incorporated Law Society and to the law schools of the Universities. I need hardly say that we will welcome any suggestion that will lead to the Bill's improvement so that we will ultimately have the best possible measure. We are here concerned with a wide range of legal issues that are of importance not only for the lawyer but also for the community in general.

I recommend the Bill to the House.

This long-delayed Bill is very welcome. I should like to express my appreciation of the memorandum the Department produced in connection with it. It has gone into the matter not merely in great detail but in rather confusing detail. I hope it is a confusion that will be cleared up on longer reading.

I should also like to thank the Department for the statement the Parliamentary Secretary has read. It is becoming a habit for Ministers and Parliamentary Secretaries simply to read whatever the Department provide for them rather than to speak on the matter themselves. I suppose I may take it as coming from the same hands as those which produced the White Paper.

The Bill has some strange features. Part I is Preliminary and General. In greater part, it is taken from the draft statute which is to be found at the back of Dr. Glanville Williams's book Joint Torts and Contributory Negligence. I think a few extra definitions are included because there is more to be covered in this than is contained in the draft Bill in the textbook.

The second part of the Bill deals with survival of certain causes of action on death. I notice in the statement, speaking on a rather minor point, the Parliamentary Secretary referred to the case, which is also mentioned in page 3 of the White Paper, of Benham v. Gambling and to the difficulty of putting any monetary equivalent on loss or diminution of expectation of life or happiness. One of the judges in that case said it was difficult to ascertain the loss or measure of prospective happiness. They decided that social position was a loss to be considered when the matter was being determined. Why so much time should have been spent, I do not know, seeing one section of the Bill says that is not to be one of the matters which survives. Part II, which allows certain actions vested in a deceased person to survive, says nevertheless that the damages recoverable for the benefit of the estate from that person shall not include exemplary damages, or damages for pain and suffering or personal injury but what the historical references to Benham v. Gambling are meant to convey, I do not know. In the paragraph in which the reference to Benham v. Gambling is in the White Paper on page 3, the statement was made that although subsection (4) of Section 7 proposes that there are rights to be given—and the reference is that although subsection (4) proposes that the rights conferred by the section are to be in addition to the rights conferred on the dependants of the deceased—I am leaving out the air companies and so on—two sets of damages will not be recoverable in a death case. That then is followed by this amazing expression:

The intention is that in assessing damages under the Act of 1936 or under Part IV, the Courts will take account of damages which may be or have been awarded under Section 7.

There is a reference to an English case —I think a House of Lords case—of 1942. That is not a decision which is binding in our courts, although it might be followed, but if the view expressed in the memorandum is, as I read it, that it is the intention which has been given effect to in Davies v. Powell Duffryn Associated Collieries, Ltd. that is, so to speak, good enough. I just want to point out that mere expression of intention, without the matter being guaranteed by phrases in the legislation, may not have the same decision as was given by the court in the Davies v. Powell Duffryn case. For the moment, I pass over the important part of this legislation which is Part III.

Part IV in the White Paper refers to the Fatal Injuries Act and that has been simply repealed and then embodied again in this legislation. Why that has been done, I do not know. It may be that it was thought it would make for convenience to have everything under the same statute; if that is a point of view, it can be given due weight, but the other Act has not been found wanting. There may be some difficulty with regard to the commencement of the Act. That is referred to in one of the earlier sections of the legislation we are discussing, Section 4, and, I think, a saving clause in Section 5. Except for mere padding purposes, I do not know why the Fatal Injuries Act had to be repealed and then brought back in full form as Part IV. Parts V and VI are necessary. There are certain minor amendments to be made in the Workmen's Compensation Acts and in the Air Navigation and Transport Acts. The first is to allow that diminished damages may find their place in the alternative remedies for workmen and the second matter is to put a fatal air accident on the same footing as an ordinary fatal accident.

With regard to the remainder, I notice the White Paper says that Part III follows a measure suggested by Dr. Glanville Williams in his Joint Torts and Contributory Negligence. It is rather a mild way of expressing what has happened. In this book, the professor, in Chapter 22, sets out a suggested codifying and amending measure. That starts on page 498 of the book and goes on for many pages after that. I think I am right in saying that the whole of Part III is taken word for word from Professor Glanville Williams' book. I am wrong in saying “word for word,” because he had a habit of saying “provided that” here and there and the draftsman has put in the word “but” seven times, I think, instead of using “provided that”. There is no significant change——

Yes, there is.

The Parliamentary Secretary might speak so that he may be heard. If there is some significant change, I do do not know what it is. We have not heard it and we shall wait to find out what it is. As I read through the suggested codifying amending measure, I suggest that section by section, subsection by subsection, and proviso by proviso the codifying statute is followed. I do not say that is any fault; it may be very good, but it does raise this question: if we take holus-bolus a suggested draft statute put into the end of a textbook and embody it in permanent legislation, does it mean the framework of that cannot be disturbed by amendments that might be considered more appropriate to Irish conditions than what is in this measure? I suggest there is complete copying of this.

I heard the Parliamentary Secretary read an acknowledgment to Professor Glanville Williams for his aid in this matter and undoubtedly there has been tremendous aid from him. As far as my observation goes, starting on page 7 where Part III starts, that is the important bulk and I say that literally the provisions of section after section are all taken from this draft statute.

Again, I want to express my appreciation of the White Paper that has been produced. It does give one a certain amount of sign-posting to what was otherwise a very difficult matter to grasp and those who prepared the White Paper are definitely to be com-mended. There is a reference, however, to a case decided in our High Courts, that is, Moloney v. Llewellyn. I should say that the greatest measure of appreciation for this whole measure will concentrate on Section 34, the apportionment of liability in a case of contributory negligence, a provision that practitioners have desired for a long time. It is something that members of this Party tried to put into legislation some years ago. It is a great thing to have it there, even though, because of the number of sections in this, it seems to be rather hidden. The important section is Section 34. That is where liability in cases of contributory negligence has to be apportioned.

It is rather peculiar that the memorandum should have picked out for reference the case of Moloney v. Llewellyn referred to in the Irish Law Times Reports, 1960—the case was in the year 1959. In that case, the judge who decided the case said that the court must face the “almost impossible task of assessing the respective degrees of negligence and having to express that result in mathematical terms.” Then he bent himself to the consideration of the respective degrees of negligence as between the parties and in the end he made some distribution—I think eighty per cent., on the one hand, and twenty per cent. on the other—and asked himself the question: “Could this not just as well have been seventy-five per cent. and twenty-five per cent?” as it could easily have been. His comment in the end was: “The task is an impossible one to carry out perfectly.” Whether the emphasis is on the word “perfectly” or not, I cannot say, but it will be appreciated and accepted that what has been embodied in Section 34 is that if there is a jury sitting, the jury, or if it is a judge, the judge himself, will have to face what in that case was called “the impossible task” of assessing the respective measure of damages and putting them in mathematical terms.

When I got this very lengthy piece of legislation, I began to search it fortuitously to find out whether or not two matters about which I have talked for three years in succession on the Estimate for the Department of Justice had been adverted to and whether any changes had been made. I thought the appropriate place where these might find their place was in Section 45, which deals with the abolition of certain defences. The two defences that are abolished are:

(1) It shall not be a defence in an action of tort merely to show that the plantiff is in breach of the civil or criminal law.

(2) It shall not be a defence in an action for breach of statutory duty merely to show that the defendant delegated the performance of the duty to the plaintiff.

The two matters, I think, that require attention are the legal situation as it has developed over a number of years where a highway authority interferes with a highway and that interference causes an accident; that accident refers to the negligent doing of the work, or misfeasance. There is right of action. The highway authority is protected if it does not do anything and if the accident results because of a natural depression due to the passage of time in the highway. As long as the highway authority, so to speak, steers clear, nonfeasance on the part of the authority can stand as a defence. I should have thought that in these modern times we would abolish that. I should imagine that if the courts were consulted, it would be found that the vast majority of practitioners think it a most inequitable defence to have to meet. I have myself heard views expressed by members of the judiciary. They have no liking of that particular defence, either.

The second matter is one which I shall bring more immediately to the attention of the House by way of amendments on Committee Stage. It is a matter which has been the subject of discussion in legal circles and indeed anywhere that legal men gather. They cannot understand why, with all our Republican ideas, we still hang on to the defence of the Crown; the Crown can do no wrong. That association with our institutions started with Carroll and the Minister for Justice and developed to the point that one cannot sue out successfully a cause of action against a member of the Government. Why that should have persisted for so long is something I cannot understand.

I know there was considerable inertia on the part of some Government Departments because they were afraid that, if they were not allowed to shelter behind the old Crown privilege, many actions would be taken successfully against Departments of State. Whether that might mean great expense to be met on the part of the State, I do not know, but that was the objection for quite a number of years. It prevailed when efforts were made to have the doctrine of common employment abolished. It was asserted then on behalf of certain State Departments that, if that doctrine disappeared, its disappearance would mean a succession of actions in which the State had previously been successful, for example an action against the Minister for Finance in relation to a mechanically-propelled vehicle. This was secured beforehand by the doctrine of common employment and that security would be lost, if the doctrine were abolished. In a search over five or seven years a single case has not come to light in which a group, otherwise liable, had hidden behind that doctrine successfully. That objection has, therefore, disappeared. The same objection has been made in relation to the getting rid of Crown privilege, but that has been done in England. In fact, I do not know of any country which still maintains that old protection, a protection to which we still hold on.

This is, in the main, a Bill for Committee. It is in Committee that Part III can be attended to most satisfactorily. The memorandum certainly signposts the way to a great many of these sections but it is not wholly clear at times. That is not the fault of those who prepared the White Paper. It is because the matter is confused. Even between lawyers there is no definite agreement. The Bill is welcome, the more so because it has been so long delayed. I am still doubtful of the wisdom of taking an important section of an important Bill from what is a textbook reference and drafting a piece of legislation on it.

The introduction of this Bill is a matter of great personal gratification to me and I should like at the outset to congratulate those responsible for the drafting of the Bill and for the accompanying White Paper. I know from personal knowledge that there has gone into the preparation and drafting of this Bill a great deal of hard work, research, legal erudition and industry of a very high calibre. People should appreciate that they have in the service of the State officers who are competent to produce a Bill of this kind. These people have, in fact, produced other Bills of a law reform character which are the admiration of older and more experienced States than we are and which have a longer legal tradition and a more extensive legal knowledge. I think some of our measures have been copied in other countries.

It is a matter of great personal satisfaction to know that the modernisation of our legal code is coming to fruition. Legislation of this character brings about some measure of standardisation and certainty in this particularly difficult legal domain. The Parliamentary Secretary is entitled to his share of the credit in pressing forward in this sphere. I tried for many years to have law reform measures introduced, but without success. The opportunity presented itself to me at a certain period and we did some little work then in connection with law reform. We at least got it going and I think we are entitled to say now that the efforts we made have helped to bring about the present position.

This is a good Bill and one that should bring great benefit to both the legal profession and the public at large. We, who practice in the courts, know the extraordinary difficulties with which litigants are faced in any branch of the law of negligence at the moment, particularly in relation to concurrent wrongs and contributory negligence. Legal decisions on contributory negligence, on the way in which negligence actions ought to be conducted before a judge and jury, the considerations juries should be presented with by a judge, the questions that should be asked, have all been the subject of a number of legal decisions and it would take more than mere human intelligence to reconcile them or know precisely what they mean. I think I am entitled to say that we are now in a position in which it is almost impossible for a judge or a practising barrister to know precisely how to conduct a case, how to charge a jury, how to frame the questions the jury must answer.

This Bill will put an end to that very difficult position. The greatest contribution, as Deputy McGilligan has said, is in Section 34 of Chapter III in relation to the apportionment of liability in a case of contributory negligence. I should like to add to that the final pooling of the third question, or the question that we lawyers know as the third question.

It is an extraordinary philosophy among legal luminaries, both here and in England, who are pirouetting not on a legal pinpoint but on a series of philosophical pinpoints. It is a matter of satisfaction that there will be no longer any question of this contributory negligence bringing unnecessary complications into simple facts, which tend to hide the truth of a fact instead of simplifying it. Judges should always be able to ask a jury a straightforward question. There was a decision in the Supreme Court within the past fortnight on this very point—the position as regards compensation and the abolition of the third question. It is desirable that the matter of the abolition of liability in the question of contributory negligence and nonfeasance would be simplified, so that it would be easy to ascertain what was the degree of negligence and what the dependants should get.

Deputy McGilligan referred to a case decided some years ago and the difficulty which arose about doing just that. Judges and juries had real difficulties. It may have been difficult for a judge sitting without a jury, just philosophising without being able to bring in the commonsense of the jury to bear on the case. The protection of injured plaintiffs in my view, after a lifetime of experience in these matters, depends upon referring the jury simply to the issue of the question of liability. If they are simply directed, juries will have no difficulty in determining where the liability lies and in assessing damages accordingly. Juries can be relied upon to bring their commonsense, their knowledge of the world and their view of the facts to bear in each case and to assess damages accordingly.

The Parliamentary Secretary spoke of what I regard as a difficult topic and which was brought into consideration in connection with this Bill—whether there should be allowable in this country as in England damages for loss of expectation of life. There is a lot to be said for the giving of such damages, a lot to be said against it. Go back into the history of the law and consider the question in connection with judges who, in 1941, threw up their hands in horror at the difficulties attached to the assessing of damages for loss of expectation of life. Then go back to the common law where it mattered nothing to the dependants if a man lost his life. That was the common law laid down by judges and it was the same mentality which was responsible for creating and framing the rule on loss of expectation of life which efforts were made to remedy by Lord Campbell's Act and later by the Fatal Accident Act. It is a matter that might be considered again now.

My view, on balance, is that the Parliamentary Secretary's attitude is correct but I think it is worth considering again. There is one part of this matter which does require very serious examination. The Parliamentary Secretary did refer to the question of dependency and the damages for dependency. In my view that is a part of these problems that requires very much more consideration than it has been given. During my time in office we introduced a Fatal Accident Act and I recall having long consideration with very learned officials of the Attorney General's office to see if it were possible to achieve some rule other than actuarial calculation, which exists at the moment, for giving damages to dependants of persons who die as a result of negligence.

I have seen in the course of these actuarial calculations and rules of thumb grave injustices done. Say a man dies as a result of the negligence of a driver of a motor car. He leaves a widow and a number of children. You can solemnly go to the courts to prove your case, but on an actuarial basis, as to what the widow and each of the children lost as a result of the death of the breadwinner. You get an actuarially produced sum as to the value of the joint lives of the husband and the wife including a calculation of the amount lost by the widow as a result of the husband's death. That is an unreal way of calculation in cases like this but it is the only way that is possible at the moment.

The Supreme Court says you must have actuarial calculation and, by having it, you ignore completely the fact that you cannot work out in such terms what the loss of a husband means to a wife and what the loss of a father means to a child in money's worth. I would suggest there should be some further consideration of the matter of dependency compensation with a view to seeing if there is not some method that could be achieved other than rule of thumb and actuarial calculation. I have had the case of a man earning £7 a week, aged about 40, with a wife between 32 and 36 and several young children. The man was killed. Through actuarially calculated compensation the youngest child got £200. Is it not absurd to say that when a man dies leaving a widow and several children, the youngest child gets only £200?

I confess that during my term of office, though I did everything I could, within the limits of my capacity and in the time at my disposal, to try to find another method and the then Attorney-General produced for me a summary which was put into the draft of the Bill, I had to drop it because I thought there would be so much litigation over it that it would not be practicable or workable. I would advocate that, in assessing dependency compensation, no account should be taken of the assets left by the man who was killed. It used to be that even insurance policies were not taken into account until statute law amended that.

We put into that Bill a provision that widows' and orphans' pensions should not be taken into account. I do not think it is proper that when a man dies leaving some assets and that when his death was caused by the negligence of a defendant, the deceased's assets should be deducted from the compensation payable to that man's dependants, to his widow and children. That is one obvious revision that could be brought in and which I regret I did not bring in when on the other side of the House. It is a matter which can very readily be explored even more thoroughly than the question of the loss of expectation of life.

A section to which I think the Minister should give very much more consideration than has been done already—I am not saying that by way of criticism because I believe very great consideration has been given to every section of this Bill—is section 35, a very technical section dealing with identification in determining contributory negligence. There is a bad principle involved in that section and it is contrary to what Williams suggested in his book. The matter could be very usefully given further consideration. It is a matter for Committee of course but I want to draw attention to it.

There are two other sections, sections 22 and 29, which might be considered, and probably will be considered in Committee, in their relationship to each other. I shall not go into the matter in detail now. Suffice it to say the point that emerges, and which is not clear and may cause some little injustice, is where two people are sued for neglect and one of them settles with the ptaintiff. Then, if you take an ordinary case of an employee suing his employer for neglect in regard say to a system of work, or some other neglect, he is entitled to Workman's Compensation. The insurance company, who are the real defendants, work this out. In the former it is possible, or even probable, that there will be a decree and they will settle for a certain amount of compensation giving, say, £1,000 in order to get rid of the case. When the case comes to be determined as between the other defendant, having regard to the provisions of these two sections, it is not quite clear whether the second defendant can say to the first defendant: "you have settled, but I am bound by the provisions of these sections." Then they make the case that the person who settled was not liable, but the plaintiff is entitled to make the case that he ought to have got a better settlement having regard to the fact that the second defendant was liable. It is a question that might be looked into between this and the Committee stage.

There are two other matters to which I should like to draw the attention of the Parliamentary Secretary. This might be an appropriate stage of the Bill, if it is at all possible to bring it within its scope, to put right something which I feel is a grave injustice to people under 21 years of age. Deputies may not be aware of the fact that if a person who has suffered damage through the negligence of a defendant and brings an action the defendant can lodge money in court and if the plaintiff does not take that out he has to pay all the costs and will probably get very little as a result of it all and perhaps get nothing at all.

I am particularly interested in young people under the age of 21. Those of us who practise in court, appearing for infant plaintiffs, as they are called, or minors, who suffer damages, are in a very serious difficulty in settling a case for that child or in deciding a grave issue as to whether the child will take the money lodged in court or not. It is a grave responsibility for any solicitor or counsel where a child is involved. Not only have you to make a decision to take it out but you have to have the ruling of the judge that it was proper to take it out. It has happened that counsel advised the taking of the money and the judge thought it was not enough: the trial went on and the infant got less than the amount lodged in the court and had to pay all the costs. I suggest that this is an opportunity to remedy that position. I have tried to get the rule-making authority or somebody to do it and I have been speaking about it for a long time. At least in the case of an infant, there should be discretion vested in the judge where the money is not taken out of court not to make the infant pay the costs. That is a reasonable request and a reasonable reform.

There is one other matter which should be considered—the question of injury to an unborn person. There is doubt as to the law in reference to that. The mother is travelling in a motor car, receives injuries and the child is injured as a result of negligence. There is doubt whether that person can recover damages and that ought to be cleared up. These points are just on the bare outline of the case. I should like if possible in this or in some other Bill soon, to deal with the reforms that Deputy McGilligan mentioned in regard to the nonfeasance or misfeasance in the case of local authorities. If they do nothing there is no remedy but if they do something negligently damages can be got against them.

Before finishing I shall repeat what I said before that it is a matter of great personal gratification to me that this Bill has been introduced. It will be of great benefit to the public and I hope it will be of great benefit to the legal profession. It ought to take away a lot of those unnecessary complexities that have crept in over the years, particularly since the advent of the motor car. As I said before, this Bill shows evidence of great industry and great legal erudition and it is a credit to those who are responsible for bringing it in.

I should like to add my voice to what has been said about this Bill in welcoming it. I suppose I can claim, in a small and very limited way, to have encouraged the introduction of this Bill in one respect, because of the fact that I was associated with the introduction of two Private Members Bills which bore the same title as this Bill. The first Civil Liability Bill was introduced by Deputy Costello, Deputy McGilligan and myself and some other Deputies back in 1952. At this stage I think it worth recalling that the then Minister for Justice on the Second Reading of the Bill said that if we withdrew our Bill he would take steps immediately to introduce a Government measure to deal with the matter. Well, in that spirit expressed by the Minister, the Bill was withdrawn and unfortunately, so far as the Bill was concerned, the Government then got into some political difficulties and the House in which the Minister spoke as a Minister was dissolved.

Subsequently, after the general election of 1954, I and other members of the then Government continued to express an interest in the idea of some modification—not, indeed, as extensive as is proposed here—of the law relating to civil liability. It is true to say that it was the particular personal interest in this subject of the then Taoiseach, Deputy Costello, and the then Attorney General, Deputy McGilligan, that made it possible for the research that has obviously gone into this Bill to receive the necessary encouragement.

It is not possible in this House to mention either in praise or in criticism persons outside the House but everybody knows that encouraged by the interest of Deputy Costello and Deputy McGilligan, one civil servant did a tremendous amount of work in research and in thinking in relation to this measure and we all should express our appreciation of what was done.

Unfortunately, and to that extent I suppose I and perhaps Deputy Costello may have to say peccavi, we did not introduce this measure in the period of the previous Government, although it was the intention of the then Government to have it in the legislative programme for 1957. As these things will happen, in 1957, the then Government ran into some political difficulty and the Dáil found itself dissolved and this Dáil came into being. When this Dáil was elected, I reintroduced a Bill called the Civil Liability Bill—I think it was in 1957 or 1958—and again I received Ministerial assurance at the time, when the present Minister, on behalf of the Government, proposed that even leave to introduce should not be granted to my measure, for the reason that a Government measure was ready and would be introduced forthwith. I asked: “What does that mean? Does it mean that we will have it at least during the present session?” That was almost four years ago and in the past four years, from time to time, when the opportunity presented itself, not having the right to reintroduce in the present session of the House a similar Private Member's Bill, all I could do as a private Deputy was to continue to enquire when this Bill would, in fact, be brought before us.

We know that this measure was, in fact, introduced on 13th July, 1960. That is almost 12 months ago. May I express the hope that the Parliamentary Secretary or the Minister— whoever has had to fight to have this Second Reading introduced—will continue to display evidence of interest in the subject of law reform?

It certainly is a very regrettable thing that in this Parliament, in the year 1961, some 40 years after the State was established, we are only starting to do things in relation to law reform that were done by the British Parliament years ago. In so far as it applies to the defence of contributory negligence, this measure of necessary law reform was introduced and passed in the British Parliament in the middle of the last war. Although in the middle `40's, the British people were facing problems and difficulties of a very definite character, they had all the time in operation, as I have said many times in this House, a Law Reform Committee which enabled the British Parliament—the evidence is in the British statutes now—to introduce and pass a whole series of worthwhile reforms of the common law. One of them, of course, was the modification of the defence of contributory negligence which was carried out in England by a statute passed away back in 1945. In the `40's, chiefly due to the imagination and genius of Sir David Maxwell Fyffe, who was Home Secretary, they were able to go ahead, although they had other engagements, with the unglamorous but very essential work of keeping the set of conventions which we call our law, which govern and control the duties and obligations of one citizen to another, up to date and in accord with the changes of the times. We have done no such thing.

This measure here is one of the few measures of law reform that have entered this House. I am glad to say that some were introduced in the previous Dáil and probably the first measures of law reform were introduced under the first inter-Party Government. At least, the trend which was created in the last decade has grown a little bit, I am glad to see, and in this measure it has taken a very definite form.

I should like very sincerely to join in the tribute paid by Deputy Costello to the silent service, to those whom we may not criticise or praise in this House and who have undoubtedly in the back rooms contributed to a very worthwhile measure. We will have to discuss details of it later, but I believe this Bill, in its form and in what it sets out to do, will be a remarkably fine statute of civil law reform. The Parliamentary Secretary has referred to the help given by Dr. Glanville Williams. While I am sure that help was welcome and was certainly beneficial, nevertheless, were it not for the fact that there were available here a number of people to benefit from that, perhaps this measure might not see the form it has today.

Having said that in praise of the Bill, there are one or two things I should like to say in criticism and I hope my criticism will be taken as being constructive criticism. When I saw the size of this Bill, when I read the White Paper, I hoped that under a Bill to be styled the Civil Liability Bill, in due course to be an Act, we would try to do the entire job in relation to civil liability. I regret to say that under this Bill there are a few anomalies which continue to exist. Deputy Costello has referred to some of them.

I want to refer to only one in particular, that is, that under this Bill there is still to be preserved in this country something which is foreign, or which should be foreign, to our view of the law, that is, the maxim that the King can do no wrong. Under this Bill the common law principle that you may not sue for tort a Department of State, the Government or the State itself, continues to be preserved. It does not apply in England. Some years ago—I cannot remember the name of the statute but I think it was passed in 1946—the British Parliament decided that it was absurd that a subject who was injured by the tortious conduct or act of any servant of the Crown should be deprived of the right he would have if the person who did him down was not a Crown servant. There is available to a British subject the right to sue in any British court to recover damages for any tortious act that may be done by a servant of the Crown.

That cannot be done here. I want to give Deputies an example. It may be an imaginary one and perhaps it may not be. One can imagine a number of employees of the Minister for Posts and Telegraphs going out to erect a telegraph pole on an extremely wet and windy day. They dig the hole and put in the pole. They fail to put cement or some other material around it to keep the pole steady and they pad it with clay. Where they erect this pole happens to be some 18 or 20 yards from a corner. One can imagine that sometime later if the rain and wind continue the pole to which the telegraph wires have been attached starts to bend and shortly afterwards comes somebody riding a motor bicycle and that person is guillotined by the wires of the telegraph pole.

In such a set of circumstances under our law at the moment—and it is not changed by this Bill—if that person's dependants brought an action the defence, to which there is no answer, would be that no action lies against the Minister for Posts and Telegraphs. Presumably some ex-gratia payment might be made with the authorisation of the Minister for Finance and that would be an end to the matter.

It is a pity that under this Bill an effort has not been made to look at our common law and to take into consideration the change in the times with a view to abolishing this principle of the non-liability of the State for neglect or tortious acts. Under the law as it is in relation to the responsibility of the State, even the Attorney General or the Government itself would have no power to issue a fiat or to give permission for a common law action to be taken once the matter relates to a civil wrong. There is provision, as perhaps Deputies are aware, in relation to breach of contract or certain property rights and matters of that kind to permit an action to be taken against a Minister of State but that does not apply and has no reference to civil wrongs. It is my opinion that the long title of the Bill—the Chair will eventually rule on this— would permit of an amendment on Committee Stage which might cure that omission and deal with the difficulty. Perhaps that will be done later.

This is a technical Bill which refers to matters of detail of law and I do not think it can be discussed in any great detail on Second Reading. A useful discussion might develop on the Committee Stage of the Bill. I do not know whether there has been consideration given to the Committee Stage but this Bill is pre-eminently one that should be referred to a Select Committee of the House. That Select Committee might be charged by the House —I know that notice might be necessary but that could be waived—with considering in detail the provisions of the Bill, perhaps interviewing and receiving representations as a committee from various bodies, professions outside the House, so that between all of us a useful measure might emerge.

As I read the Standing Orders—I have not read them very carefully— if a Special Committee of the House were appointed the difficulty would be that the Special Committee itself would not have power to receive oral or other representations or evidence from outside bodies, while a Select Committee, if empowered by the House, could do so. This is pre-eminently a measure which should be sent to a Select Committee having power, if it thinks wise to do so, to interview the Bar of Ireland, the solicitors' profession or the representatives of insurance companies and other persons and bodies who are interested in this measure, and being in a position to entertain and receive their views. While perhaps it is not in place for me to make any suggestion, I feel that, in relation to a committee, a Select Committee would be preferable.

I welcome the Bill and hope very sincerely that this is just one of many measures that I am sure the Minister's Department recognise as being necessary to bring our law more in accordance with the facts of Irish life. We have been inclined in a silly way, from time to time—I am not referring in that connection to recent measures —to sneer at lawyers in this country. The practitioners in our courts, no matter who they may be or how they practise, can operate and practise the law only as it is. The law in this country is the common law, which came into operation here under Poynings Law away back around the year twelve hundred, and it applied to Ireland the then common law of England. We lawyers, if I may use that phrase, have always protested that the common law, which we are expected to operate, is not in accordance with the needs and requirements of this country. Lawyers cannot change the law. The only body and the only authority that has the power to change the law is this House. Certainly the records will show that from these benches over the years, when the Estimate for the Department of Justice was being discussed each year, appeals were made for a measure of the kind which has now been introduced. I should like to feel that there will be other measures of this kind, because certainly their introduction will be worthwhile.

Debate adjourned.