The object of this Bill, which had its origin with the late Mr. Justice Casey when he was Attorney-General, is to consolidate and amend the Fatal Accidents Acts of 1846, 1864 and 1908. When the original Act of 1846 was framed, the spread of the railways had caused a substantial increase in the number of deaths from accidents. Prior to 1846, the law was that a personal action died with the person. To this there was an exception in this country. Under the Grand Jury Act of 1836, the personal representative of a peace officer, a magistrate or an ordinary person killed as a result of activity in the maintenance of the peace could recover compensation in the old county court, the amount awarded being raised from local rates.
Since the first Fatal Accidents Act — (known as Lord Campbell's Act) — was passed in 1846, the members of the family of a deceased person may, through the personal representative or by themselves, bring an action against any person who by his wrongful act has caused the death of the deceased, irrespective of the circumstances of the death. It is proposed in the Bill that that position continue to be the law, subject to important changes for the benefit of the family. I shall refer to these changes in discussing the various sections.
The new legislation is, under Section 1, designed to come into operation on 1st January next, and it will not apply to any death before that date.
In Section 2 of the Bill are defined the dependents and they are to be the members of the family who suffer loss. We are adding in the brothers and sisters of the deceased and the half-brothers and half-sisters. Adopted persons, illegitimate persons, and persons to whom the deceased stood in the position of a parent, or who stood in the position of a parent to the deceased, are also covered.
The question of the limit of dependency for the purposes of the Bill received long and careful consideration. We examined the law in Britain, in the Six Counties and in the various provinces of Canada. We took account of the provisions in the Workmen's Compensation Act, 1934, the Air Act of 1936, the Garda Compensation Act of 1941, and we went back to the old Grand Jury Act of 1836. There are provisions in all these Acts dealing with fatal cases. The provision about persons in the position of parents and vice versa was introduced on Committee Stage in the Dáil. We do not think we should go any further. It was argued in the Dáil that we have gone too far. Uncles and aunts are not covered where there is no question of being in the position of a parent.
In coming to the conclusion we have come to, we were influenced by, among others, two considerations. First of all, if the range of dependents were extended, insurance companies might be tempted to raise their premiums. Secondly, juries could easily tend to award the same amount in damages, irrespective of the number of dependents, with the result that the sums for the major sufferers, say, the wife and children, would be smaller. Though the limitation to close relatives may not be in theory ideal in all cases, it is, we maintain, sound practically, as otherwise it would be difficult to decide where and how to draw the line. There must be a definite and clear limitation.
Section 3 re-enacts the existing law. A tortfeasor who causes death is made liable in damages. Only one action may be brought, and the period of limitation for bringing it is being extended from one year to three years.
Section 4 provides for damages. The section caused us much thought. We tried to get a wider definition of damages. We were well aware that many people consider that awards in fatal cases are too small. We eventually abandoned the proposed definition, however, because we were of opinion that it might only lead to a lot of litigation to settle finally what it actually meant, and because we were satisfied that in the eventual result it would place the dependents in no better position. Sub-section (1) of the section, accordingly, follows the wording of the 1846 Act.
Sub-section (2), which is new to the law, allows damages to be awarded in respect of expenses actually incurred by the dependents or by the deceased by reason of the tort. This provision was inserted to cover funeral and medical expenses, which cannot at the moment be recovered. Sentimental damages may not be awarded at present and we do not propose they should. Nothing is given for bereavement, or for pain and suffering, or for loss of the society of the deceased. It is, to our way of thinking, impractical to introduce the type of speculation which would be inherent in trying to assess in money the sentimental loss of a relative, and we are convinced that it should not be attempted.
Even so, we do realise that there is a strong case to be made for the view that awards in fatal cases should be higher. This can only be brought about if, in time, the courts are persuaded to be more liberal. The persuasion is for the members of the legal profession, and I am afraid there is nothing the Legislature can do to help. It should be remembered that, though the amount awarded for a very serious personal injury is often much greater than what would be awarded for a death, the question of the pain and suffering a seriously injured person has to undergo for the rest of his life must, in a non-fatal case, be taken into account, in addition to the loss of earnings. In a death case, there is only the question of loss of earnings: the sentimental loss is not capable of estimation. This is not to say, however, that there is little to be said for the argument that the difference in amounts is in many cases far too great, but I cannot see how that can be remedied, except, as I have pointed out, by the arguments of legal practitioners before the courts.
Section 5 is concerned with the sums which are not to be taken into account in assessing damages. Under paragraph (a), insurance payable on death is to be excluded; this has been the law since 1908. Paragraph (b) goes much further than the existing law by providing that pensions, gratuities and other like benefits are not to be taken into account. This is a very important and beneficial provision. At present, in a death case, where the widow and children become entitled to a gratuity or pension, other than a social welfare benefit, the payments to which they are entitled must be taken into account in assessing damages. This is not alone the law here bat it is the law in England and the Six Counties, and it is the law in Canada.
Our proposal is that no amounts, except, of course, workmen's compensation, payable under statute or otherwise on the death are to be taken into account in assessing damages. This means that the members of the family of a deceased person will be entitled to the pension or gratuity payable as a result of the death and also full damages, calculated as if no pension or gratuity were payable. Statutory pensions and gratuities are payable under the various enactments covering the superannuation of members of the Civil Service, the local government service, the Gardaí and the Defence Forces. Payments are in addition made on death under the Ministers and Parliamentary Offices Acts. Companies like the E.S.B. have pension schemes for the widows and children of their officers, and payments under these schemes will be excluded in calculating damages, as also will payments made by an ordinary public or private company.
An example will illustrate the effect of the proposed provision. If a serving civil servant dies, his wife is entitled to a gratuity equal to a year's salary. Let us suppose that the gratuity comes to £500 and that the widow has a good cause of action by reason of the fact that her husband's death was caused by the negligence of another person while driving a motor-car.
In assessing damages under the existing legislation, the court must take into account the fact that the widow is entitled to £500 gratuity from the Minister for Finance, and the damages will be reduced accordingly. Where, if there had been no question of a gratuity, she would have been awarded £2,000, she will, under the existing law, only get £1,500. Under the Bill, however, she will be entitled to the full award of £2,000 from the court, and she will get the £500 gratuity as well from the Minister for Finance. Accordingly, she will be £500 better off.
I should mention that there is another side to a case like this. It is possible to prevent a widow reaping the benefit of the proposal in the Bill by a provision in the pension legislation or scheme that the gratuity is to be subject to deduction on account of compensation received in respect of death. There were provisions to this effect in the Garda Síochána Pensions Orders but they were repealed in the 1955 Order.
Section 6 of the Bill provides for the survival of causes of action against the estate of a deceased wrongdoer. The section follows the principle to be found in Section 171 of the Road Traffic Act, 1933, which covers proceedings against the estate of a deceased person who has been liable for the negligent driving or management of a mechnically propelled vehicle.
Section 7 deals with death caused by the negligent driving of a State-owned vehicle and also follows a provision in the 1933 Road Traffic Act. Here I should like to refer to a question which may be raised by Senators and which was in fact raised by an amendment ruled out of order in the Dáil. This amendment was put down by Deputy Vivion de Valera and was ruled out of order as placing a prospective charge on public funds. The Deputy sought to make the State liable in so far as the Bill was concerned, first in respect of the torts of its servants; secondly, in respect of the breach of any duty which a person owes to his servants; and, thirdly, in respect of the breach of any duty attaching at common law to the ownership, occupation, possession or control of property. What the amendment sought to do was to provide that the legal relationship of master and servant shall apply to a State servant in the same way as it applies to an ordinary servant, that is, of course, for the purpose of making the State liable for the acts of its servants committed in the course of their employment.
We did consider a provision on the lines suggested in the amendment, but we decided to leave the matter over for consideration in connection with a State Proceedings Bill. Such a Bill would deal with the liability of the State for the acts of its servants, the position of independent contractors, the procedure to be followed in suing the State and other related matters. The whole question is a complicated one, and it is not as easy to provide the right solution as might at first glance appear.
The State already accepts liability in the case of State-owned vehicles, and the relationship of master and servant applies under the Workmen's Compensation Acts in the case of a State workman. The amendment put down in the Dáil followed the wording of Section 2 of the British Crown Proceedings Act, 1947, which was applied to the Six Counties in 1949. This section is, however, to be read in conjunction with the whole British Act.
For instance, the defence forces in Britain are excluded from that Act in cases where a member thereof is injured or killed in circumstances which entitle him or his dependents to a pension from the State. I should like to remind Senators that, where persons are injured or killed by the actions of State servants in this country, ex-gratia payments are made by the Minister for Finance in practically all cases. We realise that this type of payment is not a proper substitute for a legal right to damages. We think, however, that the whole subject of the State's liability is one for separate legislation, and we are examining the position. I have dealt at some length with this subject in order to show that we were quite alive to what was involved.
Section 8 adapts any references in existing legislation to the Fatal Accidents Acts.
Section 9 is the repeals section and Section 10 is the short title section.
I trust I have given the House a sufficient outline of the objects of the Bill. We feel that this is a piece of law reform which is necessary and desirable.
