CLAUSE 13.—(Limitation of liability for certain damage caused by aircraft.) (Hansard, 25 June 1936)

§ The SOLICITOR-GENERAL
I bog to move, in page 11, line 19, to leave out Sub-section (1), and to insert: (1) Subject to the provisions of this Part of this Act, where a person or his estate is liable to pay damages by reason of loss or damage which, after the commencement of this Part of this Act, is caused on any one occasion to persons or property on land or water by, or by a person in, or an article or person falling from, an aircraft while in flight, taking off or landing, then, if the loss or damage was caused without his actual fault or privity, his or, as the case may be, his estate's total liability to pay 2084 damages by reason of the loss or damage shall be limited in accordance with the provisions of the Second Schedule to this Act. Any reference in this Act to the total limit of liability appropriate to an aircraft shall be construed as a reference to the total amount to which a person could, in the circumstances mentioned in this Sub-section, limit his liability to pay damages in respect of loss or damage caused on any one occasion by that aircraft, whether to persons or to property; and any reference in this Act to the limit of liability for property claims appropriate to an aircraft shall be construed as a reference to the amount to which a person could, in such circumstances, limit his liability to pay damages in respect of loss or damage caused on any one occasion by that aircraft, if that loss or damage were only loss of, or damage to, property. In order to explain to the House the purpose of this Amendment, it is necessary for me to travel outside what would 2085 strictly be the bounds of order, because the Amendment is not comprehensible without reference to the amended Schedule which appears on page 1110 of the Order Paper. The Amendments of which this is the preface, the whole series of them culminating in the Schedule, are designed to carry out what was felt to be the general opinion of the House at the time of the Committee stage in respect of the Clause which limits liability for damage in certain circumstances. From all sides it was felt that if possible the limits of liability in respect of personal injury should be raised and I desire to pay a tribute to my hon. and gallant Friend the Member for Thorn-bury (Captain Gunston), who was, I think, mainly instrumental in raising the point. An undertaking was given by my hon. and learned Friend the Attorney-General that the matter would be looked into before the Report stage and that if it proved possible to do so without, of course, ca using great increases of premium, which would be contrary to policy, he would do what could be done to improve the limits of liability in respect of personal injury.
The effect of this first Amendment is to make a fundamental alteration in the structure, but in nothing else, of Clause 13 as it is in the Bill. Instead of having, as there, the limits of liability in the Clause, we have transferred them into the Schedule, and the total effect of the Amendments will be this, that there is no alteration in the position of airships, where the limit of liability remains at £25,000, and there is no alteration in respect of balloons which have been left at £5,000. In respect of gliders, which are the poor man's aeroplanes, and it is very important to keep the insurance down, we propose to double the limit of liability. It was £1,000 under the Bill, and it is proposed that it should be £2,000, but so that only one-half of that could be available in respect of loss of, or damage to, property, which means that there is a complete £1,000 in any case available for injury to the person and possibly another £1,000, ranking, of course, with the claims of property.
Then, in respect of other aircraft, no change is made in respect of aircraft over 10,000 lb. in weight, in respect of which the limit remains at £1 for each pound of weight, as it was in the Bill, 2086 and the maximum of £25,000 remains what it was before; but in respect of the intermediate classes of aircraft, where they do not exceed 5,000 lbs. we have increased the limit of liability to £10,000; where it, used to be £5,000; that is, an increase of £5,000, and there again there is a provision that only £5,000 of that shall be payable in respect of loss of, or damage to, property, so that the whole of the extra £5,000 is available for injury to the person. In the case of aeroplanes between 5,000 and 10,000 lbs. in weight, the limit is again £10,000, and the limit in respect of loss of, or damage to, property is £1 per pound of weight. I do not propose to go in detail into the way in which this works out, because that was very fully gone into in the Committee stage, and hon. Members who took an interest in this Clause will be familiar with the working that was provided in the Bill as originally framed, which is retained under the present proposal, but the net effect is to make, in respect of those two classes of aeroplanes, a further £5,000 available for personal injury, and in respect of gliders an increased amount available of £1,000, and to leave it at the other figures in respect of the remaining classes.
Inquiries have been made, and it has been ascertained that these increases can be made without any very substantial increase of premium, which is a very important consideration. That could not be said if an increased risk to property were covered, because that immediately attracts a very much higher premium. It may be said by some of my hon. Friends—I apprehend that it is more likely to be said from this side of the House—that we ought perhaps to have increased the limit of liability as regards property. The answer that I make to that is that the provision of £5,000 for property losses covers at any rate any pretty substantial house and contents, and, in the case of a mansion or very substantial house, it is open to the owner to insure himself at a comparatively small rate of premium. I understand that something between 1s. 6d. and 1s. 9d. will cover all risks, including fire. In any case, the proposals are very much more generous than in the Convention and than in the Bill, and they are a genuine attempt to meet what was felt to be a widespread feeling in the House. 2087 I hope that, with that explanation, the House will allow us to have the Amendments, the first of which I am now moving.

§ Mr. DINGLE FOOT
On a point of Order. Do I understand that it is open to the House to discuss together these Amendments to which the Solicitor-General referred?

§ Mr. SPEAKER
I understand that there is a series of Amendments, and it would be convenient to discuss them together.

§ Sir S. CRIPPS
This first Sub-section as on the Paper is so incredibly drafted—I know that it follows almost the wording of the other Clause, but it was not worth while discussing the draftsmanship of that Clause when the principle was still under discussion—that it can only be hailed as a paradise for the lawyers. First of all, it does not make English at all. If the hon. and learned Gentleman will look at the third line, he will see that it says: … is caused on any one occasion to persons or property on land or water by, or by a person in, or an article or person falling from … What does that mean? It means absolutely nothing. Whether there is a "by" omitted after the second "or" I do not know, but, if so, it would then read: … by, or by a person in, or by an article or person falling from, an aircraft while in flight … It would then have some meaning. I imagine, therefore, that there must be some error in the form in which this appears on the Paper. There are some other more serious matters about the meaning of which I should like to ask the hon. and learned Gentleman. What is the meaning of "any one occasion"? Does that mean one flight? Suppose an aeroplane is flying over my house and drops something on somebody in my garden, and then drops something on somebody in the next garden. Is that two occasions or one occasion? This matter is very important because if one occasion means one flight, then damage done when taking off and landing would be the same accident for the purposes of this Amendment, and that might extend 2088 from Land's End to John o'Groats. It seems to me that "any one occasion" is a very unhappy phrase. It apparently contemplates a single accident, and that all the damage will be done simultaneously.
Take the unhappy case of an aeroplane disintegrating in the air, as one did a year or two ago over the south of England, where one of the wings came off first, then the engine detached itself from the aeroplane, and they fell scattered over a large area. Would the damage in that case be on one occasion, or would there be different occasions, namely, the occasion on which the wing fell to earth, the occasion on which the engine fell to earth, and the occasion on which the rest of the aeroplane fell to earth? It strikes me that unless something is done to clarify this provision, it will possibly lead to a great deal of litigation as to whether, when there is an accident, the occasion on which several persons have been injured is the same occasion, or whether each person or bit of property injured is a separate occasion. I suggest to the hon. and learned Gentleman that something must be done as regards that. In regard to injury to persons or property, I notice that it says "on land or water." Is there any particular reason why persons in water should not be protected? Take the case of an aeroplane passing over a bathing pool where many people are bathing. The people in the water are apparently not included. The people on the land will be, and anybody who is in a boat on the water will be, but anybody who is in the water will not be included at all.
One next comes to the extraordinary expression, if the loss or damage was caused without his actual fault or privity. Will the hon. and learned Gentleman tell us what is the criterion of "privity"? Suppose an hon. Member owns, as some hon. Members do own, a private aeroplane and it is being driven by a private pilot to whom a salary is paid, and some accident occurs. Is that an accident which is with the privity of the person who owns the aeroplane? It clearly would not be his fault. Suppose, to take another case, there is an aeroplane taking a party to some race meeting and some member of the party is so unwise as to throw an empty champagne bottle out of the aero- 2089 plane. Would that be with the privity of the owner, or would it be necessary to show that the owner has either drunk some of the champagne or handed the bottle to the person who threw it out; or would the mere fact of being in the aeroplane with the person be sufficient to make him privy to the throwing of the bottle out of the aeroplane? I am not aware—perhaps the hon. and learned Gentleman is—that this phrase has been used before or has any particular legal significance as regards responsibility for accident. The use of a vague word of this sort seems to be well calculated to stimulate activities not in the air, but in the law courts, which, presumably, is not the main objective of the hon. and learned Gentleman in proposing this Amendment. Therefore, I suggest to him that before this provision becomes law, he should get someone to tidy it up and make it intelligible, which it is not at present, and to see that there are as few uncertainties in it as possible, and therefore as few opportunities for himself and myself and others to make money out of it.

§ Captain GUNSTON
I should like to thank the Solicitor-General for having so kindly adopted the suggestion which I put forward the other night. I must say that when I listened to the speech of the hon. and learned Member for East Bristol (Sir S. Cripps), I thought, "What wonderful people lawyers are!" None of the suggestions he made ever entered my mind when I made my suggestion the other night. My suggestion, when the House was in a difficulty, was that the value of life was more than the value of property. No doubt the mind of the hon. and learned Member for East Bristol does not run on those lines. I feel that if it is necessary in order to get compulsory insurance to limit liability, we ought to try to get greater compensation for the loss of life than for the loss of property. It is on those grounds that I thank the Solicitor-General. May I ask him one or two points arising out of the Amendment? As he pointed out, if a man who owns a glider crashes and kills anybody, the total limit is £2,000. If there is damage to property not more than £1,000 will be paid for it. Suppose a glider kills a man and the damage to property is only £200, may we take it that the balance of £1,800 will be paid in respect of the life?

§ The SOLICITOR-GENERAL
indicated assent.

§ Captain GUNSTON
With regard to a machine weighing 5,000 lbs., I suppose the same thing will apply. If eight people were killed and only £200 damage was done to property, I take it that £9,800 would go in compensation for the loss of life?

§ The SOLICITOR-GENERAL
indicated assent.

§ Sir JOSEPH NALL
Will my hon. and learned Friend further explain the point, because, although the Amendment is a distinct advance on what was proposed on the Committee stage, I do not understand the intention of the Government in this limitation. I appreciate that it is better to have a certain limit for which insurance can be effected than to have no limit which cannot be covered by insurance, but why limit the total liability? One can understand the limit being placed on the total sum for which compulsory insurance can be effected, but I cannot see any reason why, in limiting the total sum which must be compulsorily covered by insurance, that figure should be taken as the extreme limit of liability. Why should a person who suffers damage have his ordinary rights under Common Law restricted in this way? I am sure that the Government even at this stage will review the matter. It is right to limit the total amount for which insurance must be compulsory, but it is wholly wrong to limit the liability in the case of a person who may have ample means although not insured beyond the figures in the Bill.

§ Mr. PRITT
The hon. Member opposite, in his references to the speech of the hon. and learned Member for East Bristol (Sir S. Cripps), treated his criticisms of the wording of this Clause rather as if they were an attack on the principle which he supports, and he claimed that lawyers are wonderful people. So, in a very limited sense, they are. They are wonderful because people rely on them to do their best for their clients, and if a client is an insurance company it does involve lawyers arguing with solemnity that a, person in the water is not on the water and that therefore all his dependants must starve until 2091 they can find a job. Therefore, it is absolutely vital that the Government should somehow get into this Measure the correct wording to ensure that it will do whatever it is that they want to do, and therefore I think that in criticising the words we are not in the least attacking the principles put forward by the hon. Member. As to the principle of the limitation of liability, or torts, in some way, like the hon. Member for Hulme (Sir J. Nall) I do not like it, but under the present system it may be necessary, to enable commerce to be carried on, to introduce some such principle, and, of course, it has been operated under the Merchant Shipping Act for a good many years. I have no doubt that while the present system lasts it will continue to be applied in the interests of any great group of industrialists who have sufficient influence in this House to protect their pockets in this way. But so far as the wording goes we are not being meticulous; we are only trying to protect the public from ourselves in fighting for a better wording of these Statutes.

§ Mr. FOOT
I share the apprehensions of the hon. Member for Hulme (Sir J. Nall). I do not see why there should be any limit of liability at all in the case of personal injury, in particular where death results and an action is brought by the dependants of the deceased. I am not, however, going to labour that point, and I want only to put to my hon. and learned Friend the Solicitor-General one question which concerns the last part of the second Amendment. It deals with an application made to the court under the last preceding Sub-section and says: the court may stay any proceedings pending in any other court in relation to the same matter and may give such directions as the court thinks proper for the joining of persons interested as parties to the proceedings, for the exclusion of claims which are not brought before the court within a certain time, and". I should be grateful if the Solicitor-General would say why it is necessary to have that power to limit the time. In cases where the accident has resulted in death a number of the actions will be 2092 brought under Lord Campbell's Act, and already there is a limit of time, a limit of six months in which the executors of the deceased or the administrators can bring proceedings, and a limit of 12 months within which the widow can bring proceedings. Why should there be any further limitation of time in cases of fatal accidents?

§ The SOLICITOR-GENERAL
If I may speak again by the leave of the House I would like to say that I do not wish to follow the hon. and learned Member for East Bristol (Sir S. Cripps), who was perhaps unfortunate in the adjectives he used about me when he accused me of lack of candour. But I think I am entitled to say that he was present during the Committee stage, and these exact words were before us then, and he did not then think they were worthy of either comment or amendment. Also, it might have been suitable if he had thought fit to put down some Amendment on the Report stage indicating what he desired. I am afraid that one must look upon his intervention as being extemporaneous and unconsidered. Nevertheless, it is worthy of attention, and, being worthy of attention, I think I may say that in one respect at any rate he is right. I think the Clause would be better with the word "by," which is a drafting Amendment which I shall move if the House will permit me to do so. The other Amendment which is suggested I do not think is necessary. If the hon. and learned Member would like it he can have "in" as well as "on" in regard to water, but I have no doubt whatsoever that the circumstances he referred to would be included in the phrase "on the water." I do not think it is necessary, but if he would like it in the case of a glider landing on a bathing party, he can have it. As to "privity," I am not prepared to agree with him about that. It is a word which has a construction. I think he has overlooked the Merchant Shipping Act, from which this Clause is taken and in which that word appears.

§ Sir S. CRIPPS
Will the hon. and learned Gentleman be good enough to tell me what "on one occasion" is intended to mean?

§ The SOLICITOR-GENERAL
If the loss or damage occurs on one occasion, that is in respect of one accident to the persons who are making their claim, or to the property in respect of which the claim is made. That is simple enough.

§ Sir S. CRIPPS
But if there is a row of six houses and each one of them is damaged by the fall of an aeroplane, is that six occasions under which the six people are injured and has each one of them a claim as "on one occasion."?

§ The SOLICITOR - GENERAL
No, certainly not. Quite clearly the one occasion is the occasion of one accident occurring to the aeroplane. It is that occasion that I am taking as an instance. The single occasion is the accident of the fall. Let me deal with another incident which I apprehend would be more than one occasion. Supposing that in the course of a flight over a distance of two or three miles a pilot were carelessly to jettison spanners at intervals. That would be more than one occasion, and in respect of each of those occasions the damage would only be limited in accordance with the Clause. I do not think there ought to be any difficulties in any court in interpreting those words. With regard to the point made by the hon. Member for Hulme (Sir J. Nall), and I think also by the hon. Member for Dundee (Mr. Foot), that there was no reason to limit the liability, at any rate where personal injuries were concerned, to the amount by which the insurance is affected, that again, is a point which has never been raised before. The Clause in its present shape has been remodelled so as to meet every reasonable criticism that was made against it on the Committee stage, and that point is one which has not been raised before. I do not know whether it be the case that it would involve an increased premium or not, but that might be one of the reasons why it has not been considered. All I can say is that it has not been considered, and that nobody up to this moment has suggested that it should be. Therefore we have pursued the error of our ways.

§ Mr. OLIVER
I followed the observations of the hon. and learned Gentleman very carefully, and there seems to be some confusion between two of his statements. If I understand him aright, if an aero- 2094 plane fall upon a row of houses and four or five people are thereby injured, that would be regarded as one occasion. His other statement, in regard to a bag of tools being thrown overboard—

§ The SOLICITOR-GENERAL
No. Not a bag of tools, but the tools one by one. Suppose there were a trap door open, and the airman dropped a spanner in Surrey and a winch somewhere else; that would be more than one occasion, and in respect of each occasion there would be a right to a claim, and a claim to limit the liability under the Act.

§ Mr. OLIVER
I appreciate the distinction which the Solicitor-General has now drawn, but surely there must be a limit to one occasion. May I give an illustration, which is quite a likely thing to happen, in reference to the fall of tools, showing the unsuitability of the words "one occasion"? If a bag of tools fell on to the floor of an aeroplane and dropped out at intervals, a second or two between each separate tool, could that possibly be described as one occasion? Which would be the one occasion, the five separate tools being one group, a sequence of five, or would each tool be regarded as one occasion? I put this case only because it illustrates the unsuitability of the words which are used, and which are not adequately defined. I hope the Solicitor-General will not think it is too late to make an Amendment in this regard.

§ Mr. PETHICK-LAWRENCE
Will the Solicitor-General undertake to give further consideration to this matter?

§ The SOLICITOR-GENERAL
The point will be looked into, between now and the time when the Measure reaches another place, and if it is found that there is any substance in it I will certainly suggest that alterations should be made.

§ Mr. BELLENGER
Do I understand that the Amendments which the Solicitor-General would accept are to be taken in now?

§ Mr. SPEAKER
The hon. and learned Gentleman said they will be considered.

§ The SOLICITOR-GENERAL
As I understand that the hon. and learned Member for East Bristol (Sir S. Cripps) 2095 would like, as I would myself, one at least of these Amendments to be made, may I move, in line 4—

§ Mr. SPEAKER
We have already inserted those words in the Bill. I understood that the words are to be considered, and if necessary, amended in another place.

§ The SOLICITOR-GENERAL
rose—

§ Mr. SPEAKER
We must proceed to the next Amendment.
Further Amendments made: In page 12, line 27, after "claims," insert "for damages."
In line 30, leave out from the second "court," to the end of the Sub-section, and insert: may assess the liability to pay damages, and determine whether, and, if so, to what amount, it can be limited under this Section, dealing separately, if need be, with such of the claims as are in respect of loss of or damage to property, and, if the liability can be so limited, may distribute the amount thereof among the several claims on the following principles:

(a) if the claims are solely in respect of loss of life or personal injury or solely in respect of loss of or damage to property, the amount of the liability shall be distributed rateably;

(b) if there are claims both in respect of loss of life or personal injury and in respect of loss of or damage to property, one-half of the total limit of liability appropriate to the aircraft concerned shall be appropriated, so far as necessary, to meeting claims for loss of life or personal injury and shall be distributed rateably among them, and the other half shall be distributed rateably among all the claims, including claims in respect of loss of life or personal injury if and so far as they exceed the aforesaid appropriation.
(4) Where an application is made to the court under the last preceding Sub-section the court may stay any proceedings pending n any other court in relation to the same matter, and may give such directions as the court thinks proper for the joining of persons interested as parties to the proceedings, for the exclusion of claims which are not brought before the court within a certain time, and for requiring security from the person by whom the application to the court was made."—[The Solicitor-General.]