§ Order for Second Reading read.
§ 12.27 p.m.
§ The Solicitor-General (Major Sir David Maxwell Fyfe)
I beg to move, "That the Bill be now read a Second time."
The Bill is one which, we submit, will give fairer compensation to those injured in road and other accidents. It deals with the case where one person sues another for damages and the damage has been caused partly by the fault of the person and partly by the fault of the other. At the present time if the person who sues has contributed to the accident by his own default, he fails and recovers nothing, even though his negligence may be very small, and the negligence of the other person very great. That is the rule of law which is applicable to accidents on land. On the other hand, if there is a collision at sea between two ships, and the owner of one claims damages from the owner of the other, the second owner will not escape liability because the first ship was also negligent. If the true position is that both ships are to blame, the court decides what is the proportion of fault; it fixes the respective fractions, adds the damages together, and divides them in the due proportions. This maritime rule finds statutory expression in the Maritime Conventions Act, 1911. So we have the position that whereas on land a person who has contributed to causing an accident by his negligence fails utterly, at sea a ship in the same position gets the proper proportion of the damage. The origin of that I shall not go into in detail. It is wrapped up in the history of our law, and arises from the fact that our law developed from forms of action, rather than from a consideration of the remedies for wrong.
Let me take a simple case, such as probably occurs every day, where a woman stepping off the kerb without looking is 989 knocked down by a motor car whose driver comes along either driving too fast or failing to keep a proper look-out, or both. In those circumstances to-day, when the negligence is contemporaneous on both sides, the woman entirely fails to recover damages. That is the position with which this Bill deals and, generally, the intention and working out of the Bill is to apply the Admiralty rule, which I have described, to accidents on land, and thus give the injured plaintiff the right to a proportion of the damages that he—and the same applies to a woman—would have recovered had he been entirely free from blame according to the amount of blame that is attributable to him. I think the House ought to have in mind that the rule of law of which I am speaking was referred to a Standing Committee which was in operation, the Law Revision Committee, presided over by Lord Wright, and representative of judges, counsel, solicitors and teachers of law. In their eighth report the Committee unanimously recommended that this alteration, which is now before the House, should be made. The Government agree with, and have expedited, their report, and so this Bill comes before the House. My hon. Friends who are in the legal profession will know that the suggestion that the existing rule had its defects has been made time after time. It goes back a long time, to the famous judgment of Lord Lindley in the Bernina case, and, even beyond that, it is one on which comment has been made. Therefore, the Government are supported by judicial suggestions, by recommendations of the Committee, to which I have just referred, and, I suggest, by commonsense.
Before dealing with the Bill generally I want to refer to one aspect of it which is dear to the heart of my hon. Friend the Member for South Croydon (Sir H. Williams). It is a point which he brought up on another Measure, and that Measure, in fact, is the next Order on the Paper to-day. It concerns the position of the cyclist whose rear lamp has gone out. As has been made very clear by my right hon. and learned Friend the Attorney-General, it is not, ipso facto, decisive of negligence, that a cyclist's rear lamp has gone out. That has to be taken into account with the general circumstances of the case.
§ Sir Herbert Williams (Croydon, South)
In this Bill the word "fault" occurs, and a fault is defined as a breach of statutory duty. If one's lamp is out, surely one has committeed a breach of statutory duty?
§ The Solicitor-General
This Bill deals with actionable fault, that is, fault on which a cause of action may be based, and that is why I wanted to make it clear to my hon. Friend that a breach of a statutory duty which is enjoined on the whole community is not necessarily an actionable fault. I ask my hon. Friend to take it from me, at this stage, that a fault is not necessarily a matter on which an action can be brought, or on which a plea of statutory negligence can be raised. It may be evidence of negligence, or it may not. Assuming that it is, let us suppose that my hon. Friend has said, "I know my lamp is out, I know that I am going along shady lanes near Croydon, where my bicycle will fade into the trees, but I am not going to trouble to put on my rear light." Then, it might well be that a jury of his fellow-countrymen would say that he was guilty of negligence. Even so, my hon. Friend would be in a favourable position under this Bill, because another jury, when he was bringing an action for those injuries which we should all regret so much, might say that the injuries were caused only as to 10 per cent. by the fact that my hon. Friend refused to have a rear light, and as to 90 per cent. by the fact that the motorist overtaking him was not able to pull up within the range of his lights. My hon. Friend would not get 100 per cent. of the enormous damages which his personality would command, but would get 90 per cent., and so leave the court quite happy. I want the House to appreciate that, in those tragic circumstances, the position of my hon. Friend would be improved from the point of getting nothing at all, to getting 90 per cent, of his damages.
The gist of the Bill is in Clause 1 (1), and I commend it to the House as stating quite clearly, in language, on which no words of mine could improve, the principle that:Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recover- 991 able in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage.A later provision states that if there is a jury it should deal with both questions. The other Sub-sections apply that to special points, with which I do not think I need detain the House. I feel I ought to say a few words about Clause 2, which deals with a position which at first sight would seem rather extraordinary. It says:This Act shall not apply to any claim by a workman or his personal representative or dependant against his employer in respect of damage caused by accident arising out of and in the course of the workman's employment or by any industrial disease, or to any claim by an employer or his dependant against any workman employed by him or against the workman's personal representative in respect of damage caused partly by the fault of the workman arising out of and in the course of his employment.(2) Where a workman or his personal representative or dependant has recovered compensation under the workman's compensation Acts.…If that were the whole story, I should not ask the House to tolerate it for one moment. But the position is this: At the present moment, as my hon. Friends are aware, we are considering industrial injury insurance, which was indicated in Part II of the White Paper on this subject. I see a number of my hon. Friends who took part in the Debate on that White Paper are in their places and they will have the matter well in mind. One feature of the present Workmen's Compensation Acts, which is still under consideration, is the question of the alternative remedy under Section 29. My hon. Friends know that a workman can take common law proceedings against his employer for personal negligence or default under that Section, instead of going for his compensation. If he fails in his action at common law, he can ask the court that is dealing with it to assess the compensation, subject to a provision as to costs. That is the present position. The Home Secretary referred the question of the alternative remedy to a strong Committee under the chairmanship of Sir Walter Monckton, and containing as one of its members my hon. Friend the Member for North Southwark (Mr. Isaacs) who has great experience in workmen's compensation matters. When this Bill came up my noble Friend the Lord Chancellor decided that the best course would be to ask this Committee if they 992 would issue an interim report dealing with this problem. They were good enough to do so and have issued their report, which is Command Paper 6580. That Committee unanimously reported that the provisions of this Bill should not apply to actions brought by a workman against his employer for accidents occurring in the course of and arising out of his employment. Perhaps I may summarise the reasons in as non-technical language as I can, although I am willing to answer any technical point at a convenient time—
§ Mr. Silverman (Nelson and Colne)
The hon. and learned Gentleman is not intending to convey to the House that the interim report rejected the application of this principle to the motorist. As I understand it, they said that they should leave the matter alone for the time being.
§ The Solicitor-General
That is what I was going to convey to the House. That is the sole reason why I am commending Clause 2 (1) to the House. That Committee said: "Do not let us interfere with this for the moment, until we have considered the general question of alternative remedies." It is simply a temporary provision. I know that the hon. Member is particularly versed in these matters, but perhaps I might indicate the sort of point which weighed with that Committee. One may get four positions. In the first case, if this was to apply to an action brought by a workman against his employer, the damages which he would get if he were not negligent himself, may be £250. The workman may be 80 per cent. to blame, and the damages may be cut to £50, which might be of substantially less value to him than the weekly compensation. On the other hand I quite agree—and I concede this point—that there will be cases, even where the damages are cut, which will be more than the compensation. You will also get this application. The employer will say, "The accident was not my fault. It was the fault of the plaintiff, of A.B. and of C.D. who are other workers, and with regard to whom the defence of common employment arises." Even if that defence does not succeed, there will be the question, if this were to apply, of the court apportioning the damages between the plaintiff, between the next workman A.B. and the next workman C.D., and the employer, and the amount he would get from the employer may be less than compensation.
§ Mr. Silverman
Is not that argument based on a misreading of Clause 1? As I read the Clause all that happens is that the plaintiff's damages are reduced according to the court's assessment of the plaintiff's own contributory negligence. It does not say that his damages are to be apportioned among a number of other people who are held to blame.
§ The Solicitor-General
I think it is very difficult. The view which is put forward in the report, and which I have been putting to the House, is, at any rate, an arguable view, that in reducing the damages, the court might take that into consideration although, obviously, what the hon. Member has said is deserving of great consideration in the wording of the Act. That is one of the other matters which have to be considered.
The fourth point is that the employer might counter-claim. It we take a case where the workman's damages would have been £1,000 had he not been negligent, and where in fact the explosion in which he was interested has done £3,000 damage to the employer, and the court takes the view that the blame is fifty-fifty, the effect would be, if the workman brought his claim, that the employer would have a counter-claim against him for £1,000. All these difficulties show that the matter wants very serious consideration in the light of what the Committee ultimately decide as to the right view on the retention or development or restriction of alternative remedies. It wants to be reviewed in the light of the Committee's final report, and the Government want to adopt their policy with the whole matter in mind. Therefore, as a temporary measure, until we see what the final view is, we suggest that it should not apply to that class of case. We do not suggest that it should not apply to a case where a workman can bring an action against a third party. We do not suggest that it should not apply to a case where an employer pays the workman the full compensation, as he must do under the Act, and then himself takes a remedy against a third person, under which he wilt get a proportion of the damages in a case where the workman has himself been negligent. In that case, the workman would get the full compensation from his employer, and the employer can get part of it back.
§ The Solicitor-General
The object of that subsection is that, where there are two or more defendants, you will have to deduct from the damages which would have been awarded to the claimant, the amount which you should deduct because of his own negligence. Then he will have exactly the same rights against the two defendants and they will have their rights of contribution, subject, of course, to the degree of negligence which each one of them has shown. Some nine years ago we changed the other branch of the same aspect of the law. Before that, one wrong-doer could not recover from another. We have to fit this into the position which obtains under that Act.
§ 12.50 p.m.
§ Mr. Silkin (Peckham)
I should like, on behalf of my hon. Friends to welcome the Bill generally, and to offer congratulations on the improved drafting which it shows. It is fairly easy to read, not only by people concerned with the law but by non-technical persons. I hope that this is a sign of a general improvement in the drafting of Bills. The Bill sets out to, remove an injustice which has grown and is affecting more and more people, as the complexity of civilised life and the development of modern machinery, power and plant have extended. This development has meant that more and more people have to use more and more skill and care in the use of modern appliances, and in adapting themselves generally to modern life, such as moving about in congested towns where there is a large amount of traffic. This need for skill and care has, in turn, increased the number of occasions on which people suffer injury through the negligence of other persons, equally those on which both parties to an occurrence may be negligent. The result has been a considerable growth in the amount of litigation arising out of matters of negligence. Indeed at some periods during the war almost the only cases which came before the law courts arose out of negligence. Therefore the matter has assumed very great proportion.
In these cases the existing law has been shown to be anomalous, and it has worked harshly in a great many cases. The Solicitor-General has explained the general purpose of the Bill, which arises out of a 995 report by the Law Revision Committee in 1939, and but for the war one assumes it would have been introduced earlier. It brings the law into conformity with that at present in force relating to accidents at sea, under the Maritime Conventions Act, 1911, which, on the whole, has worked quite well. But the introduction of this Measure will not be free from some difficulties. It will be somewhat difficult, in ordinary cases, to assess the exact degree of negligence of the respective parties, and the exact amount of compensation to which each is entitled. It is done in the case of accidents at sea, but they are much bigger matters, and probably the records are better kept. There will be much less reliance in those cases on oral evidence, and on the recollection of witnesses. In the cases with which this Bill sets out to deal, judges and juries will have to depend almost entirely on what witnesses have seen, and on their recollection many months after the event, and it will be a matter of some difficulty for judges and juries to exercise their judgment fairly in assessing negligence. Nevertheless, with that difficulty in mind, I think the position under the Bill will be preferable to the present position, where a person may be deprived of all compensation merely because he has been, in part, responsible for an accident.
There is another matter, which perhaps could not be dealt with in the Bill but which will play an important part in litigation dealing with accidents. That is the question of costs, which plays an even greater part towards the end of proceedings, than the amount of damages. It is not infrequently the case that the cost of recovering £250 may on both sides amount to £300 or £400, and a person may win his action and lose it at the same time, because the costs that he has to pay will exceed the damages that he will recover. That illustrates the need for serious consideration of the question of costs, particularly in relation to accidents of this sort. I think that the Law Revision Committee might have directed its attention to ensuring that the question is dealt with, and that costs should be reduced primarily if possiblet. The question will loom very large and judges will have to give it fair and serious consideration so as not to penalise litigants.
The real bone of contention is Clause 2, which, admittedly, carries out the 996 unanimous recommendations of the interim report of the Departmental Committee. The Lord Chancellor, in introducing the Bill, said that one reason for accepting this recommendation was that the Government are considering proposals for a new scheme of workmen's compensation and, until that was enacted, it would be better to leave the law of workmen's compensation as it is. The hon. and learned Gentleman has emphasised the fact that it is intended to exclude disputes arising between employers and workmen as a temporary measure. There is nothing in the Bill which implies that it is temporary. It excludes that kind of dispute permanently. I do not know whether it would have been possible to put in words indicating that there was a definite intention to review the whole matter. In another Measure, words were inserted stating that, for a certain period only, such disputes were excluded from the purview of the Bill. The hon. and learned Gentleman might consider whether it would be possible to introduce words of that sort indicating that the exclusion is intended to be temporary.
The hon. and learned Gentleman has given some reasons why, in his judgment, it is wise to exclude disputes arising between workmen and employers temporarily, though some of the reasons that he gave would justify their permanent exclusion, because he suggested that in many cases it would be to the interest of the worker to be excluded from the provisions of the Bill. But I think he overlooked the fact that a workman always has the option of taking proceedings at common law for a statutory breach of duty. He knows that he has the alternative remedy of workmen's compensation. He will not, presumably, embark on litigation, unless he is apprised that he has a reasonable chance of success, and the probabilities are that in the majority of cases he will do better at common law than he would have done under the Workmen's Compensation Act. The hon. and learned Gentleman took the case of a person who could get 50 per cent. of £500, but we know of cases where a workman has been able to recover very large sums at common law, running into many thousands of pounds in the case of very serious injury, and, even in such cases, where there had been 25 per cent. or even 50 per cent. of negligence on the part of the worker, and he was awarded half the 997 amount of the total damage, he would still have recovered considerably more than the maximum under the Workmen's Compensation Act. In these cases there is the hardship on the workman of being deprived of the opportunity of taking proceedings to secure benefits under this Bill.
May I say that this consideration was not absent from the minds of the Committee in their interim report, because they recognised in paragraph 5 of their Report that there would be cases under the proposed new rules in which damages awarded to the negligent workman against his negligent employer would exceed that compensation to which that workman would be entitled under the Workmen's Compensation Act. They say:In this case, an alteration in the law of contributory negligence would vary to the disadvantage of the employer and therefore to the advantage of the workman. Whether it is reasonable to impose this additional burden upon the employer, is another question which, in our opinion, requires careful consideration.I hope that this was not the reason for excluding workmen from the benefit of this Bill. The very fact that it would impose an additional burden on the employer, is an indication that the workman is being deprived of some benefit, and I hope that this question will receive further consideration.
One of the reasons given for excluding workmen from the provisions of the Bill, is the fact that a man might by reason of his own negligence recover a relatively small sum less than he would have recovered under the Workmen's Compensation Act. But he then would have elected his remedy. If he loses his case, he still has his chance under the Workmen's Compensation Act. I should have thought that the problem could be met by still giving the workman his option under Section 29 of the Act, by amending that Section so as to give him the chance of recovering the balance of his compensation under the Workmen's Compensation Act. The hon. and learned Gentleman could draft proposals to alter the law if he so desired. Clause 2 is really the only one which is controversial, and it is one which I hope the hon. and learned Gentleman will look into again. There will, however, be other opportunities for discussing the effect of Clause 2. I know that it can be said that the two members of the Committee most concerned with workmen's compensation on behalf of the 998 workmen, attached their names to the unanimous report. While one must give proper weight to that fact, I am not at all certain that they are very dogmatic about the matter, and I imagine they would have no difficulty if this House which, of course, has the last word, decided that Clause 2 should go. It is a matter which requires very careful consideration, and I hope the hon. and learned Gentleman will take account of what I have said, and what, I am sure, some of my hon. Friends are going to say about the matter, to see whether we could not put a term on the exclusion, or, alternatively, amend Section 29 of the Workmen's Compensation Act, or, perhaps better still, bring the workmen in to the benefits of this Measure.
§ Lieut.-Colonel Marlowe (Brighton)
This is the sort of occasion on which large numbers of Members retire to the Smoking-room and watching the tape machine say, "Those lawyers are at it again." It is just as well that we are, because this is a Measure which it is proper should be introduced, and it has, I think, two great merits. One is that it will remove an injustice which has existed far too long, and has deprived people who have suffered injury through perhaps only a small fault of the chance of recovering any damages whatever. Its second merit is, as I think the hon. Member for Peckham (Mr. Silkin) has mentioned, that it is well-drafted. It is the first time, I think, that a Bill dealing with a legal matter has been put in the most simple and everyday language. I think its administration will lead to certain difficulties and one of them was stressed by the hon. Member for Peckham. As I understand it, it is not the degree of the claimant's negligence which will reduce his damage; it is the extent to which that neglect was contributory to the incident giving rise to the damage. A very small act of negligence might be the determining factor, which is virtually the sole cause of the accident, and it is not always easy to determine exactly the incidence of that, but I think there will undoubtedly be a difficulty in determining whether a small act of negligence is such that it contributed entirely, or almost entirely, to the incident.
While I am commenting on what the hon. Member for Peckham said, I would like to endorse his remark about costs. As we know, these are very substantial items in many of the actions of this kind 999 which come before the court. I should think it would be fairly simple to insert in this Bill a Clause to the effect that the costs should be apportioned in the same way as the damage. The Bill provides for the assessment of the maximum damage which the claimant can be awarded; therefore, it is easy to arrive at an apportionment between the total liability or the partial liability which falls upon the defendant, and it should not be difficult to put in a Clause to the effect that the costs should be in the same proportion.
The matter of Clause 2 does, I think, give rise to some misgiving. I think it probable that the way the Bill has been drafted to exclude the claims referred to, is the only course that could be taken, because the difficulties seemed to be great and nobody seemed able to resolve them. That I think is the real reason for the matter being dealt with in that way. But there are certain re-assurances that could be given about the Clause as it stands at the moment. Of course, so far as the claims under the Workmens Compensation Act are concerned—it is nearly six years since I had anything to do with them—my recollection is that the contributory negligence of the workman, if not wilful, was not in issue in claims under the Act, it is connected with statutory duty. So far as claims based on breach of statutory duty are concerned it only becomes an issue in some cases' and there is the difficult question of whether the duty was created for the protection of the particular person affected. It is a matter of some complication and probably the Floor of this House is not the most appropriate place for arguing its effect. There certainly are many cases in which, where the claim is based on statutory duty, contributory negligence of the workman is not material. Obviously, these cases will not be affected by this Clause.
I think we must await the final report of Sir Walter Monckton's Committee and I feel sure that the House will get certain reassurances from that Committee, because clearly a matter of this kind could not be in better hands. The total effect of this Bill will be that a number of people who suffer injuries and who have, as the law stood previously, been deprived of recovering the damage will now have that injustice removed and, I think it is one which will meet with a welcome from the whole House.
§ 1.12 p.m.
§ Mr. Moelwyn Hughes (Carmarthen)
I join with other hon. Members in welcoming the major provision of this Bill, a provision which secures that where damage has been caused by the fault of two persons, they shall bear responsibility for that in the same proportion as their fault. This doctrine of contributory negligence I part with, I confess, with little regret. All of us who are connected with the law spend a considerable amount of our studies in trying to observe these principles, and still more in trying to learn the exceptions and qualifications introduced by a series of cases, commencing with the famous donkey case of Davies v. Mann concerned with the question of opportunity. Questions of the cause approximate, of causa causans, of causa sine qua non—they will all go from our law books, and will be removed from our examination of papers, in so far as they qualify that doctrine of contributory negligence.
I want rather to stress the importance of the problem which arises under Clause 2. It is true that we are considering this provision as the hon. and learned Gentleman has said, in the light of the possibility of a complete and early overhaul of the whole system of industrial insurance. Therefore, we should perhaps refrain from taking steps that we would otherwise think necessary, if we were legislating for an indefinite period of time. At the same time, it is right that we should consider this provision in Clause 2 on its own merits. I find myself differing from many of my colleagues in that I think that even on merits, it would be necessary to include such a provision as we have in Clause 2 exempting an action by a workman for damages arising out of and in the course of his employment from the provisions of the general rule. The Solicitor-General pointed out, as has been pointed out in the interim report of the Monckton Committee, that one of the consequences of applying the rule in Clause 1 to an action by a workman against his employer might well be to give the workman a very small sum of damages. By reason of that fact, under the terms of Section 29 of the Workmen's Compensation Act, 1925, he is disentitled from seeking any alternative remedy under the Workmen's Compensation Act, because the conditions of Section 29 are that the workman's action shall have been 1001 dismissed, whereas if he recovered any damages, however small and insignificant, it will not have been dismissed.
It is suggested that some alternative can still remain. I will consider that in a moment, but the question of getting a small amount of damages is really present in most of these cases, because ex hypothesi we are dealing with cases where damage is going to be divided, those cases in which, on the very basis that we are considering, the workman is not going to recover the whole of the damage that he has suffered. The Solicitor-General pointed out certain other risks. One was the risk that the employer, the defendant, might bring into the proceedings some of the plaintiff's fellow workmen and that, whatever judgment might be recovered by the plaintiff workman, he might find that his recourse might only be to a small extent against the employer and that he would have to recover the remainder, if he could, from some of his fellow workmen. There is also the danger that a counter-claim by an employer in respect of damage to the machinery involved might even swamp a considerable judgment in favour of the workmen. These seem to me to be good grounds for accepting the principle contained in Clause 2, but there is this further point.
There has been a good deal of discussion about giving the workman an option. It is very difficult to understand where the option can come in. Under the existing law it is not really an option. The workman has taken proceedings at Common Law, he has failed, and he then transfers his claim under workmen's compensation. It is now proposed that somehow he should be given some choice and that he should be protected against the case where the damages perhaps will not be as satisfactory to him as a claim under workmen's compensation. By what do we balance the one against the other? He has, say, recovered a judgment for £200. What is to happen if he wants an alternative? Somehow or other, that judgment has got to be suspended and separate proceedings have to be instituted, and perhaps decided by the same court, in order that the rate of compensation to which he is entitled shall be assessed. How does the option come to be exercised? How is it possible for a workman to balance a cash claim of £200 against a workmen's compensation rate of £2 a week? In the one case it is a definite 1002 sum of money. In the other he cannot possibly tell for how long he may be entitled to that rate of compensation. A great many factors come in from time to time to affect the amount which he may get. Improvement in his health, conditions of the labour market, and other considerations come in to affect the amount. How is a workman to exercise effectively an option between a fixed sum of money and a weekly rate which may be varied and changed at any time and the duration of which he does not know?
§ Mr. S. O. Davies (Merthyr)
Are not these possibilities weighed up in thousands of cases now? A workman in receipt of weekly compensation payments considers the possibility of commuting them for a lump sum. There is, therefore, nothing new in it.
§ Mr. Hughes
I and many of my hon. Friend's are familiar with the commutation of weekly payments, but, broadly speaking, those cases do not arise until you have got fixed, settled conditions and you can, with some degree of certainty, prognosticate. In my experience that does not happen until a pretty advanced stage.
§ Mr. Silverman
My hon. and learned Friend will realise that it does not only arise then. It arises every time a man decides whether he will issue a writ for common law damages or rely on the workmen's compensation remedy.
§ Mr. Hughes
I am afraid that I follow that argument with considerable difficulty. It is true that he has exercised some form of option to accept, he does not know what, when he starts common law proceedings. He does not know what he is going to recover. He does know what his maximum rate of compensation is under workmen's compensation, assuming he is entitled to it, but he does not know how long it will run. When he starts a common law action, he does not know what he is going to recover, and he will not start it unless he hopes to recover something far more substantial than workmen's compensation. That is obvious, but there is in such a case none of the balance which it is suggested can be made if some form of amendment is devised so as to give a workman who has recovered judgment the power to go on to have his compensation assessed, and then to balance a fixed sum with a weekly sum for an indeterminate 1003 period. I suggest that the only real solution of this difficulty is to be found in a complete overhaul of industrial insurance which the Government have been contemplating. We have to await the scheme which they will suggest, and, in the meantime, I think the House would be well advised to accept Clause 2 as it stands. I welcome the Bill.
§ 1.25 p.m.
§ Mr. Clement Davies (Montgomery)
I want to add a word of commendation and gratitude for this long-delayed reform, now introduced to us from another place, Those of us who have had some experience of Admiralty, realise how easy it was to work this system. My hon. and learned Friend the Solicitor-General was wrong in saying that there would be tremendous difficulties. I should have thought that the difficulties of assessing the amount of contributory negligence as between ship A and ship B were much greater than those of deciding as between two motor cars. I should think that this will work quite easily and to the benefit of everybody. I am glad that the question of costs has not been introduced into this reform. It is right that costs have not been referred to in this Bill, but are to be dealt with in the way in which costs are dealt with already.
The only controversial point is Clause 2. If the pledge had not been given by the Solicitor-General, and if we had not thought it high time that we had a new Clause dealing with the law as between employer and employee, there would be no justification for this Clause. I entirely disagree with my hon. and learned Friend the Member for Carmarthen (Mr. Moelwyn Hughes), and I am sorry to disappoint him, in his optimistic thought that we shall no longer have to remember the doctrine of contributory negligence. We shall have to go on remembering it, for it becomes more and more important and it will have to be considered with more care than ever before. I am afraid that young students will still have to sit for examinations, in which they will have to distinguish between causa causans and all the other matters, we have had to consider in the past.
§ Mr. Hughes
I should not like it to go out on the records that I was quite as ignorant as my hon. and learned Friend appears to make me. I said what I did 1004 only in relation to the qualifying cases such as Davies v. Mann.
§ Mr. Davies
All that the court will have to say will be that the mere fact that the plaintiff has been guilty of contributory negligence, will not deprive him of his cause of action against the defendant. He will still have to prove that the defendant has been negligent, and the judge, or the judge and jury, will have to decide the degree of negligence between the two, which contributed to the accident. If one were applying this to the workman, it would put the workman and his advisers in a much more comfortable position within this Bill than he is in at the present time. The workman goes to see his legal adviser, who says to him, "You can, of course, start proceedings under the Workmen's Compensation Act. The question whether you have been negligent or not does not arise; you will get your compensation. Contributory negligence is excluded from workmen's compensation, but you will get only so much. The damages you seem to have suffered from your accident are so great, that the amount of compensation you will get under workman's compensation is only part of what you would get if you could bring your case at common law. Let us consider the facts of your case. I am sorry that I can see some evidence that you yourself were contributory to this accident and were negligent. I do not think we can run the risk of bringing an action on your behalf at common law, or under other Acts. I advise you, therefore, to go just for workman's compensation." Now he will be able to say, "Fortunately we have passed a new Act of Parliament, and, although you have been negligent, and although it may be possible that that contributed to the accident, that will not prevent you bringing an action against the defendant for damages".
That makes a great deal of difference. The Government have rightly excluded the relationship between employer and employee from the Bill, only for the reason that the whole thing ought to be brought forward as a complete code in itself, in which they can consider the effect of the law generally, as it stands. I would ask that this Clause should be excluded if I did not feel that there has been a solemn pledge by the Solicitor-General that this code will soon be introduced. If we exclude the Clause, that 1005 might be used against us, afterwards as a reason why the matter could be further delayed. They would say: "We need not be hurried". The Government have told us definitely that the workman will not get the benefit of this Clause. We can use that as an argument to insist upon the code being brought forward as early as possible.
For that reason I commend the Bill. This is another example of the excellent work being done by the Law Revision Committee. We have altered the law in a number of directions already, particularly with regard to the distressing judgments which, because they were uttered some too years ago and have been allowed to remain, have been followed since, of necessity, by the judges, even though all knew that they offended against common sense. I wish to thank that Committee for the excellent work that they are doing.
§ 1.32 p.m.
§ Mr. Ness Edwards (Caerphilly)
The few words which I have to say relate only to Clause 2. I hesitate to say anything in the conflict between the hon. and learned Gentlemen who have preceded me. I want to look at this matter in its political context. In the Beveridge Report there was a proposal to abolish the common law rights of the workman, but, in our view, the common law rights of the workman are the only penalty on the bad employer. When the Government issued their White Paper they indicated that this question was being referred to the Monckton Committee, and from what we have gathered from various sources we are of the opinion that it is the view of the Government that the workman ought not to have common law rights under the new industrial insurance proposals. If we can be told that that is not the intention, may I ask why the matter was referred to the Monckton Committee?
In their first interim report the Committee made the proposal to exclude the workman from these traditional common law rights. That shows the political trend. One is sure that the Industrial Injury Insurance Bill will reach the Statute Book this year, next year, or the year after and, when it does reach there, it will only be operated when Part I of the White Paper, the security scheme, becomes operative. Therefore, we have before us a long prospect in which the workman will be treated as an Ishmaelite, as com- 1006 pared with other citizens. Not one Member who has spoken has condemned the proposals in the Bill, which has been generally welcomed. If those rights are to be given to the ordinary citizen, why not to the workman? My hon. and learned Friend the Member for Carmarthen (Mr. M. Hughes) attempted to justify what the Bill proposes and I was very interested to hear him say that the workman could not be safeguarded against a lesser amount in compensation. I would refer him to the Monckton Committee's report which says, on page 4, paragraph 4:The alterations in the law of contributory negligence would, in this respect, be disadvantageous to the workman. Doubtless this disadvantage could be removed by amending Section 29 so as to give an option to the workman, after damages have been assessed, either to accept the damages or to require the court to award compensation under the Workmen's Compensation Acts.The Monckton Committee, upon whose report my hon. and learned Friend based his remarks to-day, said that the remedy which my hon. and learned Friend said does not exist can be provided. It would be as easy to provide that remedy in the Bill, as to exclude the workman from these provisions. Why has the workman been excluded? I will finish my quotation by reading further in that paragraph:But, whether it would be reasonable in the employers' interests or desirable in the public interest, to confer this new option on the workman are questions upon which opinions might easily differ.Therefore, it is not done out of regard for the workman. The Monckton Committee does not question that it would be to the advantage of the workman to be brought within the scope of the Bill, but the only reason why he is not given the benefit which other citizens will get is, they say, because it is not in the employers' interests. It does seem to me, when one bears in mind the traditional attitude of the Home Office on this question, the recommendation of the Beveridge Report, and the hesitation of die Government themselves in their White Paper, that we are steadily being led on to a position which, in the new political circumstances, might offer the opportunity of completely cancelling the workman's common law rights.
That is the danger. I speak after consultation with the Miners' Federation this morning on this point. They have the greatest apprehension as to the tendency 1007 of this legislation. My hon. and learned Friend the Member for Montgomery (Mr. C. Davies) thought it was right to exclude the workman because assurances have been given. What are those assurances, when put against the history which I have recited in this matter? We have no assurance that the Government in their new proposals for industrial injury insurance will provide common law rights for the workman. If their attitude is to be deduced from their past behaviour, we know they will exclude the workman. I would therefore direct the hon. and learned Member's attention to the point that this is an encouragement to the Government to wipe out the common law rights of the workman altogether, if we agree that the workman ought to be excluded from the Bill, because they will have a precedent for it. That is my argument.
§ Mr. C. Davies
It is clear that the workman will be at a disadvantage under the Bill when compared with the ordinary member of the public. When the Bill becomes law the ordinary member of the public will not lose his right to damages merely because he has been negligent, but the workman will still remain under the old law. Cannot we use that argument against the Government and say, as long as that position remains: "Where is your pledge to carry out a new code dealing with the law between employer and employee?"
§ Mr. Ness Edwards
That does not commit the Government to anything. Before the Bill was introduced, the Government were committed to introducing their Bill on industrial injury insurance. They have said nothing more. I do not interpret the pledge given by the Solicitor-General in the same way as the hon. and learned Member, and I think it would be unfair to do so. Under the industrial injury insurance scheme, every employer will pay the same contribution on behalf of workmen in every industry. The mine-owners in South Wales will save £1,200, 000 a year. Then it will not matter what the incidence of accidents may be in any colliery, as there will be no financial inducement to the employer to cut his rate of accident. The only remedy the workman will have, apart from general remedies under Factory Acts and regulations, where an employer has been 1008 negligent because his financial responsibility has been reduced, will be to take action at common law. The greater the opportunity provided for the workman to take that action, the lower will be the incidence of accidents in the mines and factories of this country. The workman is entitled to be treated as a citizen. There is no reason why he should be denied rights which are being given generally under the Bill to citizens and why he should be treated as in a separate and special class.
§ 1.43 p.m.
§ Dr. Russell Thomas (Southampton)
I do not want to continue the Debate on the argument about compensation to which we have listened at length this morning, because although it may be very desirable and interesting to those who put it forward, we have perhaps pursued it far enough in view of the hon. and learned Solicitor-General's statement in the matter. I hesitate to intervene in the discussion on the Bill, partly because of the brilliant and disconcerting array of legal talent which I see on the benches opposite. However, I venture to make one or two remarks of a more general kind. In regard to the subject of negligence our minds have been rather sidetracked to accidents on the road, and to the other Bill to which the Solicitor-General has referred, dealing with cycles. I am not sure whether we should lightly set aside the common law. It is the result of the wisdom of many generations of our countrymen, and although its conclusions may have been arrived at slowly, too slowly for some people, nevertheless they are generally profound and wise conclusions. I, therefore, always regard with a certain amount of caution, the arguments of people who say they would like the common law to be set on one side and replaced by Statute. Although I welcome the Bill in some respects, nevertheless I do think we are too anxious to replace the common law. Actions for negligence are not confined to the roads or workmen's compensation. They embody a vast field of activity and I wish to draw the attention of the House to quite another group of actions for negligence. I would like the opinion of the Solicitor-General on these matters.
I do not wish to express any strong views myself, but there is a whole series of cases in respect of which actions are 1009 frequently taken against professional men —they all come under this Bill—against solicitors and doctors and other people who follow certain occupations. I want to know from the Solicitor-General what he thinks will happen in such actions when this Bill becomes an Act of Parliament. I ask for that for several reasons, because I have a very strong idea that the number of these actions will probably increase. Some years ago I investigated, for my own information, the records of actions taken against doctors, for what is known as malpractice. I found that, as a rule, the plaintiffs failed. Very seldom did they succeed in getting damages. The court took a great deal of convincing; it required a great deal of support for the plaintiff's case before it subjected professional men to damages and to the almost more important reflection on their professional reputation. These cases were largely those due to disappointment at the result attained. Perhaps somebody had suffered from an unpreventible after effect, or an illness had taken a turn which nothing would have averted; sometimes if one traced the motives behind such actions it would be found that they might have been brought from malicious motives or—[Interruption]—I would ask my hon. Friends opposite to allow me to continue. I myself sat patiently through many of their speeches on workmen's compensation, and I would ask them to extend a similar courtesy to me.
As I say, perhaps this Bill will tend to increase the number of actions taken wilfully against professional men by a number of persons on the off-chance of getting a quantum of damages. I was saying that I had investigated a very long list of such actions taken over the last 30 or 40 years against doctors, and that in very few cases did the plaintiff succeed. The court frequently condemned the plaintiff for bringing the action. Many of the actions were due to distress of mind but sometimes to spite or malice or sense of grievance. Very frequently in the case of doctors these actions fell into the category of actions resulting from confinements, pecuniary loss due to compulsory notification of infectious disease, and the treatment of fractures. It will be very easy, perhaps, now to come to the court and endeavour to show some degree of negligence. It may well 1010 be that the courts will give a different valuation to the evidence under this new Bill—I do not know. No longer can a professional man rightfully urge contributory negligence in the application say of treatment, and thereby completely win his case.
Again, there is the case of actions brought against a solicitor for wrong advice when negotiations he has undertaken have failed. I need not give further examples. I simply offer these few remarks because I want the Solicitor-General to examine this side of the question. I think many people seeking cheap and easy money might find it a very simple and easy matter to sue a professional man in the hope that the court, while not necessarily going the whole way, will go some of the way and award some damages. There are other classes of cases which I have not discussed. I think that we are, perhaps, entering into these matters rather too rapidly. We must all agree that the rate of accidents on the roads constitutes a special problem which demands a Bill of some kind, but I am not sure whether such a Bill is required for the ordinary course of human relationships. I ask the Solicitor-General if he will be good enough to turn his mind to the aspect of the case I have raised.
§ 1.52 p.m.
§ Mr. Glenvil Hall (Colne Valley)
We all congratulate the Solicitor-General on introducing this Measure to-day. Practically all the speeches that have been made are an indication of how much it is welcomed, and the extent to which it is overdue. I must confess that I did not fully follow the arguments of the hon. Member for Southampton (Dr. Thomas). He appeared to suggest that a Measure of this kind was likely to increase the number of actions for negligence brought against doctors and other professional men. All I can say about that is that if, in the past, doctors have been guilty of negligence and have got away with it, it is time that racket was stopped.
§ Dr. Thomas
May I interrupt? I do not think the hon. Member is entitled to say that doctors have been guilty of negligence, and have got away with it. I said that the court in such cases has generally given a decision that the doctor has not been guilty of negligence. If the hon. Member assumes that there is some subtle negligence occurring every day which does 1011 not come to light in any court, he is entirely wrong.
§ Mr. Hall
I am sorry if I misunderstood the hon. Member. There is no need to engender heat. If a doctor has not been guilty of negligence he will find when the action comes to the court that the court will be well on his side. Other professional men, incidentally, are in a different position from a doctor, in that when a doctor is guilty of negligence the patient may not live to bring an action.
§ Mr. Hall
I would say, in reply to the speech of my hon. Friend sitting behind me, that this Bill will cover workmen in practically every direction other than accidents arising out of and in the course of their employment. Therefore they are in no different position from the ordinary citizen so far as that is concerned. It might be inferred from some of the remarks he made, though I am sure he did not mean them to be so taken, that he thought all workmen were excluded. That, in fact, is not the case. I agree heartily with my hon. and learned Friend who sits below the gangway that this Measure should be used as a lever to try and get legislation introduced at a very early date to regularise the position of the ordinary workman vis-à-vis the employer.
I desire to make one or two observations on one particular aspect of this Bill, and the effects that might flow from it. I refer to the question of costs. This point has been mentioned by one or two Members, but was dismissed rather lightly, I think, by my hon. and learned Friend the Member for Montgomery (Mr. C. Davies). As is common knowledge, under the rules of the Supreme Court costs are within the discretion of the trial judge, but he has to use that discretion judicially. That means that ordinarily where the plaintiff has sought a remedy to which he is entitled at law, unless he has misconducted himself he is entitled, as of right, to get his costs. When, however, payment-in has been made by a defendant a different set of circumstances arise. There a judge quite definitely can exercise his discretion, and normally takes account of the fact that payment-in has been made. As a rule, therefore, when payment-out occurs and the costs are 1012 taxed, the unfortunate plaintiff may find himself in a much worse position financially in spite of having obtained damages by having to find both his own and the defendant's costs after payment out. This has frequently happened in the past where a plaintiff gets less, or about the same, damages as have been paid in. The result has been in many instances that where a man has recovered, say, £300 and had expected to recover £500, and has found that £300 has been paid into court, he has in the upshot been in a very much worse position than he would otherwise have been. That is a very grave risk now, and it seems to me that under this Bill that risk will be an even greater one, because where contributory negligence is pleaded and the percentage is assessed, he may find that he has not only increased costs to meet, but also in addition his contribution towards the assessed total damages.
While I think the answer which will be given this afternoon will be that nothing can be done to meet this difficulty under this Bill I would ask the Solicitor-General if it is possible for his Department to look into this matter to see whether the difficulty cannot be met by an alteration to the rules of the Supreme Court. That, I should imagine, is one way in which it could be done. Some day the whole question of costs will have to be considered though now on a Measure of this kind is not the moment even to debate that subject. The point I wish to make is, therefore, that under this Bill, when it becomes an Act, litigants will be put at an increased risk, not because they fear they may not get reasonable damages but that the costs that may be awarded against them in certain circumstances will be so prohibitive as to make recourse to the Courts at all a very expensive process for them.
§ 1.59 p.m.
§ Mr. S. O. Davies (Merthyr)
My hon. Friend the Member for Caerphilly (Mr. Ness Edwards) has really dealt with one matter about which I feel a great deal of anxiety—the reasons why Clause 2 has been introduced in the manner that it has been. I am not yet convinced that Clause 2 could not have been so drafted as to prevent the exclusion of workers who are subject to the Workmen's Compensation Act. I speak with some measure of diffidence as my hon. and learned Friends have taken an interest which, as an old 1013 workman, I appreciate very much in a Bill of this kind, but I am far from being satisfied that Clause 2 cannot now be redrafted to include workmen who are subject to the Workmen's Compensation Act.
We, as workmen, attach great importance to the right that a workman should enjoy, in all circumstances, to take action at common law. Very frequently an action of that kind is important to us as a committee of inquiry into acts of avoidable negligence on the part of employers. I hope that we may get very definite assurances that the Government are contemplating legislation in the near future; otherwise, we shall feel most aggrieved, and our suspicions will be intensified if this most unfair and extremely artificial distinction is to exist between a workman who is injured while at work and another citizen who is injured while walking the streets. Take the case of a workman who, while cutting across the colliery pit bank, is injured as a result of the negligence of the employer or of an employee of that employer. The workman may himself have contributed to his accident: then he cannot proceed under Clause 2 of this Bill. But if he leaves the colliery pit and steps onto a road and is seriously injured, he is able to proceed, if he is satisfied that he has been injured owing to the negligence of another person. That is a ridiculous distinction.
The incidence of accidents in this country to-day is extremely high. Every day inexperienced men and women are injured in the factories. This applies particularly to inexperienced young women, who are put to work on machines. Possibly, in many instances, these accidents are contributed to by the workpeople themselves, besides being a result of the negligence of the employer. One of the last cases I had to deal with before I left home to come here this morning was that of a young woman whose right arm, I am told, will be rendered permanently useless. She worked on a machine that was known to be defective, but there is a suspicion that she may herself have contributed to the accident. I am satisfied that were she covered by Clause 2 of this Bill—and I speak as one who has had considerable experience of these matters—she could bring a successful action against the employer. Let me give another example. A young lad has been injured severely through the negligence of the 1014 employer or of an employee of the employer. The lad may have contributed in some degree to his own injury. He has been so injured that he will never again be able to follow that employment. It is conceivable that if a substantial sum were paid to him, as it probably would be paid if he were covered by this Bill, that money might help to train him for some employment, so that he would be able to look after himself to the end of his days. But, over and above everything, the right to actions at common law, as my hon. Friend the Member for Caerphilly has said, is most useful to the workers of this country.
I am sorry to have to put it in this way, but that right is always a threat of exposure to a negligent or indifferent employer. I sincerely hope that between now and the Third Reading the Government will sympathetically consider the representations that have been made from almost every part of the House. Incidentally, during this interval between now and the date on which we are promised the better things to come, very serious accidents will take place to many thousands of workpeople in this country, and we are not happy that the sufferers should be excluded from the right which is extended to others under the Bill.
§ Mr. Levy (Elland)
I have not had the privilege of listening to the whole of the Debate. Do I understand the hon. Gentleman to say that workmen's compensation should go and common law actions be substituted, or alternatively that the workman should have the right to choose between bringing an action under the Workmen's Compensation Acts or at common law, so that he may get the best of both worlds? In those circumstances, is the employer to have the same right?
§ Mr. Davies
All we ask for is that the workman should not be excluded from any privilege that is offered to other citizens, under Clauses 1 and 2—Clause 2 being the one I am most concerned about. All we ask is that no distinction should be drawn between a workman on the one hand, and a citizen on the other hand, who may not be working.
§ 2.9 p.m.
§ Mr. Silverman (Nelson and Colne)
If it is any satisfaction to the hon. Gentleman to have a further answer to his question, I would remind him of what he knows already, that workmen already have that option.
§ Mr. Silverman
The objection to Clause 2 is that, in exercising that option, he should not have made available against him defences that are not open to other defendants. I would like to say a word about the general principle of the Bill, which has perhaps been rather overlaid by the argument about Clause 2. That is natural, because Clause 2 is the only part of the Bill that arouses any serious controversy. I say "any serious controversy," because, in listening to the hon. Member for Southampton (Dr. Russell Thomas), I seemed to detect that the principle was not universally accepted. The hon. Member rather made the point that some of us were not listening to his speech with great care. He was quite mistaken in that, and, therefore, I regret the more that he should not be here to hear the reassurance offered to him. He need not fear that under this Bill any defendant will suffer any injustice, or that anybody will be made defendant to an action when he ought not to be defendant to an action. This Bill does not alter the ordinary onus on every plaintiff who brings an action for damages at common law or for breach of a statutory regulation or for negligence of any kind, of proving that the negligence occurred. This Bill does not in any way remove or whittle down that obligation. Until the plaintiff has proved beyond doubt, first, that the defendant was negligent, and, second, that his negligence caused the plaintiff damage, there is no action at all; and nothing in this Bill alters that position in the least. But, under the law which this Bill proposes to amend, there was a position which could not possibly commend itself to any fair-minded person. It was utterly absurd and quite indefensible that a plaintiff who had succeeded in proving that he 1016 had suffered very serious damage, owing to negligence in the performance of his duties to him by a defendant, could nevertheless be wholly and completely defeated—not defeated in part, not defeated in proportion, but wholly deprived of any remedy at all—if he was in any degree, no matter how small, contributorily responsible for the damage that occurred.
Those of us who have had to deal with these matters have known some very tragic cases indeed. I remember a very early case, in which I was involved, in which a little boy was rendered permanently and totally blind, in circumstances in which the driver of a motorcar was quite clearly to blame. The driver of the motorcar was able to say that the little boy had run a little carelessly into the street, not in such a way as to relieve the driver of all responsibility for what had occurred, but in such a way as to enable him to say, "I may have been mainly to blame, the lion's share of the responsibility may have been mine, but the boy was a little to blame too, and, therefore, he must live out the rest of his life in total blindness, without any remedy from me." I do not know why it has taken so long to get that position remedied. The hon. Member for Southampton talked with great reverence of the common law. One of the things which entities the common law to the respect which we all feel for it is its capacity to adjust itself, its capacity to develop, and its capacity to correct its own mistakes, from generation to generation. Sometimes we have to do it by Statute. In this case, although we are doing it by Statute and not by development of the common law, that Statute has been recommended to the House by a committee of very eminent lawyers, who have known about this position for many years. Therefore, I join in congratulating the Government on having introduced the Bill, and in saying that it, will have the support of almost every hon. Member, indeed, I think, every hon. Member of the House.
My hon. and learned Friend the Member for Carmarthen (Mr. Hughes) was inclined to think that, under this Bill, a large part of the law on contributory negligence would disappear. I think that, on reflection, he may find that that is not so, and that, so far from it disappearing, it will become more and more important, because I hope that the courts will not 1017 be inclined to regard this Bill as a reason for failing to address their minds to the question of whether the negligence of the plaintiff was really contributory negligence at all. Under the present law, it is not enough for a plaintiff to say to the defendant: "You were negligent, too." He has to go beyond that. He has to say: "Not merely were you negligent, too, but your negligence was a material part of the circumstances that resulted in the accident," and unless he can prove that if the negligence is not contributory, that ought to result not merely in no denial of damages in toto but no reduction of damages, either. All these considerations whether there has been negligence, and whether the negligence has really contributed to the accident, are just as important as ever. They are even more important than ever when it comes to assessing the degree of contributory negligence. I am afraid that the task of the law courts, so far from being simplified by this Measure, will be amplified, and I dare say that a good many lawyers will regret that. I do not know.
There is one other word I wish to say about the general principle. People have talked in this Debate, and my hon. and learned Friend was inclined to do so as well, rather as if they thought the Bill was to apply the law of collisions at sea to collisions on land. It does not quite do that, and I am very glad that it does not. In collisions at sea—I am no expert about it—I understand that the position is that you estimate the damage sustained by both ships, add them together, make a sum of the total damage, then assess precisely the ratio of blame between the two ships, and then divide the total damage in the proportions of the degree of negligence assessed. That is not the case here. Clause 1 does not do that, and I am glad that it does not, because it makes the position a little easier when you have to consider objections to Clause 2. I am glad that it does not do it for another reason. I do not think—although I know it was said that it was done in the Admiralty Court with great ease—that, when you are dealing with a case, say, of a child running across a street and being hit by a motor car, driven with less than proper care, you can really assess precisely the actual percentage degree of blame and apportion the total damages in quite that way. I am glad to see that Clause 1 does not do that. It does not say that the total 1018 damage shall be put together and divided in any exact proportions. What it does say is this:… a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage":That means, surely, that the court or jury will have to do what a great many people have done in negotiations in the past. They will have to say to themselves, supposing total liability is established, "What is the amount of the damage? What are the chances of success?" They would arrive at some sort of rough and ready ratio, or reduction of damages to make allowance for some contributory negligence, but without any specific, precise or mathematical allocation of percentage. I think it would be very much easier to work in that way.
§ Mr. Hughes
We are dealing here with a case where both plaintiff and defendant are negligent. If there had been damage, say, to two vehicles, there would probably be a counter-claim by the defendant against the plaintiff, and, if that be the position, that will be the same as the position in regard to collisions at sea.
§ Mr. Silverman
No doubt, that is, roughly, true, but whereas, in Admiralty law, you start from that position and begin with an application assess the total damage, here you do not. It is quite true that, if the defendant brings a counter-claim, it will have to be dealt with on the same principle as the original claim, and, no doubt, this would result, in a rough and ready way, in a summation of damage and an apportionment of damage. Even then, it is not a precise apportionment at all. There is room for discretion. It is elastic, and I think it is better that it should be so.
I would like to make one other general comment. The hon. and gallant Member for Brighton (Lieut.-Colonel Marlowe), I see, is in his place, and I want to say that I sympathise with his point about costs. I think there is something in what he says end I would like the Government to consider whether some direction or rough-and-ready guide as to costs, could not be included somewhere in this Bill. I know that the hon. and learned Member for Montgomery (Mr. Davies) said some- 1019 thing about costs following the event, but it is not quite as simple as that. A defendant has the right to make a payment into court, and, nowadays, he has the right to make a payment into court at any stage in the action. I wish he had not; I thought that was a mistake. I think the old rule by which, if he wanted, he made a payment into court at an early stage in the action, and, if he wanted to make a further payment at any time, had to obtain the leave of the court, was better. The present position is intolerable. Defendants wait until the bulk of the costs have been incurred; they wait until both plaintiff and defendant have involved themselves up to the hilt in the full measure of costs of an Assize trial, and, at that stage, make a payment into court. Payments into court were not intended to be of that kind, but to be a check on litigation. They put a plaintiff quite rightly in the position that, if he could have obtained without litigation, more than or as much as he obtains with it, then his action is shown to be unjustifiable, and there is no reason why he should have the costs of it. You destroy the whole benefit of that if you allow him to make payment into court when all the costs have been incurred.
Everybody knows that the assessment of damages always was a gamble when juries had to assess them, and it is certainly no less of a gamble now. In the old days, at any rate, there were 12 people sitting in the jury box, and the idiosyncrasies of one and another produced a rough approximation to a measure of the damage. Nowadays, there is only one man on the bench, and even the Court of Appeal denies itself the right of interfering, even when it thinks it ought to interfere. That gamble is going to be very much worse now, because, if it was difficult to assess what the total damage ought to be in cases of total responsibility, now it is going to be more difficult than ever because of the second hurdle you have to get over. Now, not only have you to estimate correctly what the total damage is going to be, but, over and above that, estimate how much of this total damage you are likely to recover. So you have to make your guess twice over, and the possibilities of error are at least double. They may be much more than doubled. I think that the rule of costs following the event will work very 1020 unfairly. I do not know how modifications can be introduced, or what modifications could be introduced. I confess that I had not thought of it myself very much until the hon. and gallant Member for Brighton mentioned it, as I am very glad he did. I hope the Government will consider it, and that, perhaps, when we come to the Committee stage something could be done, or that we may have an opportunity of considering whether something can be done about it.
Now I come to the controversial point. I cannot, for the life of me, and I say so with all respect to the Commission, see why Clause 2 is there at all. I looked at the reasons that are given and tried to see what validity there is in them. One of the things said by the Commission—I am sure by inadvertence—is that, in cases where the workman benefited by the application of this principle to him, the employer would suffer. Well, of course, so he would, but he would suffer only in the same proportion and for the same reason as every other class of defendant. There is no extra liability on the employer. If you say that this principle shall not be available to a workman, so far from putting the employer in a worse position than other people, you are putting him in a better position than other people. I am talking, of course, of those cases where the application of this principle would be beneficial to the workman. I will come in a moment to the other cases, which undoubtedly exist, where the application of the principles would not be beneficial. I admit there-are such cases, but I am dealing at the moment with the class of case in which the application of the principle would benefit the workman.
It surely cannot be seriously contended that, because the employer would suffer thereby, that is a reason for denying the workman the benefit of a principle which is applied to everybody else? [Interruption] Yes, it means that the loser will lose, but only in circumstances in which any other loser would lose. I do not think that could have been intended by the Commission to be regarded as a very serious argument. Then it is said that, in a number of cases, the application of the principle would not be beneficial to the workman at all. There is common ground, I think everywhere, that the workman, by reason of the fact that he has his remedy under the Workmen's 1021 Compensation Act, is not quite in the position of other plaintiffs, by reason of the Workmen's Compensation Act, 1925. You cannot say, as some speakers have said, "Well, it applies to everybody else; why should it not apply to the workman?" There are, undoubtedly, special considerations arising out of that fact, but let us see what they are.
If it is only a question—and I say this to my hon. and learned Friend with great earnestness—of a few hard cases, well, hard cases make very bad law. You might devise a protection for a number of hard cases. In fact it would be easy to devise protection for such cases, and the Commission say that very clearly. They said it in their Report. On the other hand, if it was not a question of a few hard cases but was more like the general rule that the workmen would not benefit, no doubt the argument would have to take a different form altogether, though whether it would make any difference to the final argument I am not so sure.
There is one class of case with which the Commission deal that, clearly, cannot arise under this Bill. My hon. and learned Friend saw a difficulty about it when I interrupted him in moving the Second Reading. I do not want to leave it there. I do not think there is any doubt about it at all. The Commission say, in effect, "But supposing somebody else is blamed as well as the employer, then not merely will the damage have to he apportioned between the employer and the worker, but between the employer, the worker and the other worker in common employment, and the result will be that the workman will get very little." That is precisely what the Bill does not say. There is nothing of that kind in the Bill. Clause 1 does not say anything of the sort. That was the point I was making a little time ago when I said it was not a question of percentage claims and of dividing the totality of damage in proportion among a different number of tort-feasors. The court has only to consider under Clause 1 whether the defendant was negligent and if so whether the claimant was guilty of contributory negligence. If it answers both those questions affirmatively, then its duty is in the words of the Clause to reduce the damages to such an extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage and not to anybody 1022 else, not to any third party or to a whole concomitance of general circumstances which result in an accident. I appreciate that by a circuit of a whole series of actions you could get, more or less, the same result in the end, but that could only happen under Clause 1, if a workman was so ill-advised as to sue a fellow-workman as well as his employer. Otherwise, that particular case feared by the Commission cannot arise under the Bill at all.
There might be a counter-claim by the employer against the workman if the employer's case was that the workman was, in whole or in part, responsible for the damage. My hon. and learned Friend has had, I suppose, at least as much experience of this class of case as anybody in this House. In what proportion of the cases he has had, where somebody has lost a hand, or finger, or an arm because the employer failed to provide a dangerous machine with the protection that the Factory Acts say he ought to have provided does the machine suffer any damage commensurate with the lost finger, the lost hand or the lost arm? I do not want to be too dogmatic, but it would be fantastic to suggest that there has been any serious number of cases in which the damage to the machine equalled the damage to the worker, or was so great that on the joint computation of responsibility the workman would suffer a serious loss.
In a great many of these factory cases, it is the breach of statutory regulations which gives the workman his right of action—not by any means in all the cases, but in a great many of them. It was thought by lawyers until very recently that contributory negligence was no answer to such a claim at all. It used to be thought that once there was a statutory duty upon a man to guard a dangerous machine, that if he neglected that duty and damage was the result, then whoever suffered the damage was entitled to his remedy against an employer in breach of a statutory duty. It was thought that that was a reasonable view to take. Why do you have to guard machines at all? It is because familiarity breeds contempt. As people go on working for days, and weeks, and months, and for years following upon years, they become not careless in the ordinary sense of the word at all, but the very fact that they are so accustomed to the surround- 1023 ings, leads them to disregard dangers obvious to everybody else, and which would be obvious to them if these matters were always in the forefront of their minds. It becomes a sort of reflex action, and sometimes the reflex does not work, and that is why the State thought it right to put a statutory obligation upon employers to guard the machines.
If, in these circumstances, damage was suffered lawyers used to think, until comparatively recently, that contributory negligence was no answer, but the House of Lords has decided that it may be. But you have to prove a fairly high degree of negligence on the part of the workman to succeed in a plea of contributory negligence in cases of that kind. These are the majority of cases in factories nowadays. Breach of statutory regulations is far more frequent than it ought to be and bears the principal share of responsibility for the accidents that are occurring. If must be very difficult indeed in a case of that kind to say that the damage suffered by the machine is commensurate with the damage suffered by the workman, and, having done that, then to show, over and above that, that his share of the responsibility for it, on the principles laid down in the House of Lords for contributory negligence in cases of this kind, is very high.
There are other cases which the Commission dealt with where the difficulty is that you may recover an amount of partial damages less than the value of a workmen's compensation claim. I did not follow my hon. and learned Friend the Member for Carmarthen. It is extremely difficult to weigh up the comparative value of a weekly payment under the Workmen's Compensation Acts and a lump sum of damages, or indeed a lump sum of workmen's compensation, but it is a thing we all have to do, and we shall all have to do it now. I do not think that our task would be made any harder by realising that people sometimes get partial damages just as they sometimes get partial compensation. I do not think that it adds anything to the difficulty at all. Still, obviously, there will be cases where the value of the partial damage claimed would be less than the value of 100 per cent. workmen's compensation claim. For the life of me I do not see what the difficulty is. As my hon. Friend the Member for Caerphilly 1024 (Mr. Ness Edwards) pointed out, the Commission suggested a means and I am inclined to say with all respect to the Commission rather an obvious means of protecting the workman against that. They do that in the report when they are dealing with another aspect of the matter.
There are cases where the workman can have a common law claim against a third party and a claim under the Workmen's Compensation Act against his own employer. Just as the recovery of damages against the employer defeats a claim for workmen's compensation, so the recovery of damages against anybody else defeats a claim for workmen's compensation. It has exactly the same effect. But that is not excluded by the Bill at all. The Bill permits a workman to bring an action again a third party, without having the defence of contributory negligence raised against him even in cases where he has a workmen's compensation right as well. The Commission points out that it is necessary not merely to recover judgment but to recover damages before that defeats your claim. That is not quite true in cases of claims against the employer. I do not want to go into Committee points now, but I hope when the time comes we may consider what can be done. You could do it by the amendment of Section 29 of the Workmen's Compensation Act.
I have been rather a long time but it was an advantage that all these matters should be reviewed, before we reach the Committee stage, so that no one will be taken by surprise when we come to that stage. I take it that my hon. and learned Friend agrees with me that, in principle, Clause 2 is bad; and that, on the merits, there is no reason why workmen like everybody else should not have the benefit of an improvement in the law. The real difficulty in the mind of the Government is that there may be hard cases and that a Commission is considering the totality of the law on these matters. I am not going to follow my hon. Friend the Member for Caerphilly in attributing any sinister motives or intentions either to the Commission or to the Government. I feel sure that they would not be so foolish as to attempt to deprive the workman of his common law rights.
§ Mr. Silverman
Not any Government. The hon. and learned Member for Montgomery said that he thought we might leave Clause 2 in the Bill, because there is a pledge by the Government that they are going to do something about it some other time. That is really a very poor consolation to all those maimed and deformed people who are roaming our streets. It is no answer to a man who says, "I am being deprived of something. If I was not a workman and he was not my employer I would get this all right. But I do not mind in the least losing it; after all, somebody or other, in a year or two, or it may be five years and it may be longer, will, if he has suffered the loss of his leg or his arm, be all right and so I do not mind."
That is a position the Government ought not to contemplate. Our factories, many of them Government-owned, have been populated for the past three or four years by many thousands, I should guess perhaps hundreds of thousands, of people not accustomed to working at all, and certainly not accustomed to working amongst dangerous machinery. I am talking about young girls and young women directed, and rightly directed—I have no complaint of that and, so far as know, the majority of these people have no complaint of it—by the Minister of Labour into munition factories where they are transferred at once from sheltered, safe homes into vast workshops full of horrible, monster-like machinery they have never seen before. I do not know whether any statistics have been prepared—I hope some day there may be—as to how many of these young women have lost arms, hands, fingers. I have seen myself some very badly deformed and maimed limbs of girls who are little more than children, working in factories where machines ought to have been protected and were not protected.
The Workmen's Compensation Acts are no answer to that, because once the war is over they go right out of industry altogether. The Workmen's Compensation Acts do not give any damages for deformity, for pain and suffering. They do not give wages, they give part-wages, and only for so long as a person is available for employment. These people will not be available for employment, nobody ever wanted them to be, and they will go out of the industrial world altogether, so that the Workmen's Compensation Acts 1026 are no answer to them. Those Acts give them no permanent remedy, though the disability they suffer is often permanent. What is the good of going to these people and saying, "Do not bring your action for damages because you are 1 per cent. or 5 per cent. to blame yourself and you will not get anything. Although everybody else in the world would, in those circumstances, get 95 per cent. or 99 per cent. of damages, that is not applicable to you. You will not get it because a gracious, benevolent, sympathetic Government are considering what they will do for somebody else some other time." That is a bad argument. Why should you not give people now the benefit of what you are doing? Why should you think it good to deprive them of it because you are considering, whether or not at some other time you will give it to somebody else? I think this matter ought to be reconsidered. It will not prejudice the final report of the Commission in the least; it will no more prejudice them in their final report to put employers in than it prejudices them to leave them out. The argument is just the same both ways.
On any view of the matter, it will be a long time before any change in the law generally, arising out of the report of this Commission, becomes operative. I suppose it is conceivable that there might be a report this Session, that there might be legislation this Session, but nobody can possibly suppose that it will be less than two or three years at the earliest before these changes can become operative. Yet for everybody else you are making changes that will become operative at once, I appeal to my hon. and learned Friend, therefore; to consider this matter very seriously again before we reach the Committee stage. If Clause 2 were left out, and if there were substituted for Clause 2 a Clause giving the benefit of this to workmen as well, with suitable safeguards for hard cases on both sides, you would have in this little Measure an absolutely perfect amendment of our law. Leaving it out, you leave it open to people to say that you are altering the law for the benefit of everybody else and leaving the workman out of it.
§ 2.50 p.m.
§ Mr. A. Bevan (Ebbw Vale)
I think the arguments have been almost entirely exhausted by the speeches which have been made already, but it is necessary for those who are associated with the 1027 mining industry to say that when we come to the further stages of the Bill, we shall have to resist Clause 2 very strenuously, and try to prevail upon the House to amend it, because it asks us to agree to a distinction which, if we agree to it, will appear to be a mandate to the Government on future legislation dealing with workmen's compensation and common law liability. That is our difficulty. It may be that there is an argument that at the moment the whole structure of industrial liability is being revised, and therefore we ought to consider this as an interim Measure. But, as has already been said, it is a strange thing to make a distinction which, on the surface of it, is invalid and then ask us to retain the distinction while an investigation into its validity is proceeding.
The distinction at the moment is that the workman has a remedy which is not available to the citizen and that, therefore, he suffers no disability in not having the benefits of this Bill. But the workman has a disability that the rest of the citizens have not got, and because of the higher incidence of danger which he suffers in his employment, workmen's compensation is not an additional benefit which a workman has as against a citizen who is not a workman, because a workman is a citizen as well, and therefore, in his capacity as a citizen, he runs the normal dangers of other citizens and, in his capacity as a workman, he is exposed to additional dangers. Therefore, workmen's compensation is not an additional advantage, and to suggest, as has been suggested with regard to Clause 2, that we ought not to extend its benefits to the workman because he already has remedies under the Workmen's Compensation Acts begs the whole question. I suggest, therefore, in all seriousness that there is no logic behind the contention.
There is one thing to which we attach very great importance indeed, and that is the extent to which the development of modern insurance has relieved the employer of any financial liability with respect to compensation and his own misbehaviour. It is feared that there will be a great increase in the number of common law actions if Clause 2 goes out and the benefits of the Bill under Clause 1 are extended equally to the workman as to the citizen generally. I hope there will be, because it is absolutely essential 1028 that the employer should be subject to some discipline and penalties for negligence. It used to be argued that workmen's compensation itself was a protection against the bad employer, because it imposed liabilities and additional penalties upon him. We all know that is not the case and, therefore, actions in the courts against employers for partial or complete negligence are very important forms of discipline against negligent employers. So far from reducing the number of common law actions in cases of this sort, we would like to see them increased, especially just now when very large numbers of unskilled people have been drawn into the factories, as my hon. Friend the Member for Nelson and Collie (Mr. Silverman) points out.
Therefore I want to intimate to the Government that in Committee we shall want to examine Clause 2 very much more closely. It is not our intention, and we do not want to do so, to jeopardise the Bill as a whole, because Clause 1 confers very substantial benefits, and the Government are to be congratulated upon bringing it in. However, we want to register the strongest possible protest against an assumption which, if we do not fight it now, may be embodied in permanent legislation when industrial disabilities are further considered. I hope that these considerations will appeal to the Government when they come to the Committee stage.
§ 2.56 p.m.
§ The Solicitor-General
I can only speak again with the leave of the House, but in view of the most interesting points that have been raised from so many quarters, I hope the House will give me such leave. It might be convenient if I dealt first with general points, before coming to Clause 2, which, as many Members have said, is the only matter in controversy. My hon. Friend the Member for Peckham (Mr. Silkin) said the new problem which the Bill sets would increase the difficulties of His Majesty's judges or juries who would have to decide it. Of course since then he has had the advantage of being informed on that point by a number of other hon. Members and some hon. and learned Members, but I do not think myself that the new problem will be a real addition. As my hon. Friend the Member for Nelson and Colne (Mr. Silverman) and, I think, others pointed out, the old problems of causation are still with us. Perhaps my hon. Friend the Member 1029 for Peckham will cast back his mind to some of the more difficult running-down cases in his own experience, when somebody has asked: "Is the defendant to blame?" and the defendant has said: "The plaintiff is to blame." The plaintiff then has said: "The defendant had an opportunity of avoiding my negligence," and, on that, the defendant has said: "But your action put me in such a position that I could not exercise that opportunity," and the plaintiff has replied by saying: "But if you had not bad brakes on your car, you would have been able to take the opportunity which you did not take." And so we used to go on until one was in doubt as to whether it was any easier than the old question of the "school marm": "Where a man and a monkey start on different sides of the tree, and they each walk to the position from which they started, has the man walked round the monkey?" There was the same complexity of causation in these problems. They will still remain, and, as I say, I would ask my hon. Friend to consider whether this addition will really greatly add to the problems that judges have had to consider.
The other point my hon. Friend made was on the question of costs, and that was also developed by my hon. and gallant Friend the Member for Brighton (Lieut.-Colonel Marlowe) and my hon. Friend the Member for Nelson and Colne. In the majority of cases under the present law, and, indeed, as it existed before the war, these will be dealt with by a judge alone, sitting without a jury. The costs will then be in his discretion. Let me take one case and tell the House how I think it would turn out. The plantiff brings his action on the basis that he is not negligent at all. He says: "It is the defendant's fault that I was injured". The defendant says: "No, it was your own fault" or, alternatively: "It was partly your own fault" and succeeds in showing that it was partly the plaintiff's own fault, and establishes that the plaintiff's damages come down by 25 per cent. Then, strictly, the plaintiff has succeeded on the issue of the defendant's negligence, and the defendant has succeeded on the issue of establishing contributory negligence, of a partial contribution to the accident on the part of the plaintiff. If you followed it mathematically you would get the cost of these issues, but I am sure that that would not be 1030 done, as it would be a cumbrous matter. Anything I say is, of course, only what I would do myself if I had to decide the issue; but if that is done I do not think there will be any injustice in the question of costs.
I would like to deal with a separate point raised by my hon. Friend the Member for Southampton (Dr. R. Thomas), namely, as to actions against professional men. I have had certain experience in the class of actions he mentioned, in both the professions he mentioned, and I think the majority of Members with similar experience would agree that the question of contributory negligence arises remarkably seldom, and that the issue in these cases is whether there has been negligence or some breach of duty on the part of the professional man. That takes a great deal of establishing, and there are very few successful cases. In that class of case I cannot see that the professional defendant will be prejudiced in any way, and I cannot regard that as a reason for not going on with the proposals which I have commended to the House. I entirely agree with the hon. Member for Nelson and Colne that this does not remove the primary question that the plaintiff must prove that the defendant is guilty of negligence, and the defendant must prove that there is negligence which has contributed to the accident. Unless he can prove that the question does not arise. The only other question was the rather detailed one, that this might make difficult the question of whether one ought to accept payment in. It makes the question of deciding what is the proper payment in also a difficult one, but I do not think that is a point I need pursue at this stage. If the hon. Member has any ideas on that I should be glad if he will communicate them to me.
Now I want to deal with the broad question raised by the hon. Member for Caerphilly (Mr. Ness Edwards) as to the suggestion—he did not put it higher than that—that the Government seemed to be against Common Law proceedings on the part of a workman. I would like to disabuse him entirely on that point. If he casts his mind back to the speeches made by the Home Secretary, the Financial Secretary to the Treasury and myself, during the Debate on Part II of the White Paper, he will not find a single word which justifies that suggestion. So far as the 1031 present position is concerned, the Government have no intention of taking a line against Common Law action. What they did was to refer the matter to the most representative and authoritative Committee they could find, and ask them to consider it. I think it is relevant to point out that in Paragraph 7 of the Interim Report the Monckton Committee say:We are reluctant to express even an interim opinion upon any of the questions indicated in Paragraphs 4, 5 and 6 of this Report"—these are the cases which we have discussed at considerable length, as to when the workman may be damnified by this proceeding, and when he would benefit and when the employer would benefit—without first hearing the views of organisations representative of employers and workmen. These organisations have not yet given evidence before us.Until the Monckton Committee have heard what is the view of the T.U.C. and the Employers' Federation on the question of whether there ought to be these common law claims they cannot, as they say, express their views on these points. That is perfectly right. I gather from listening to what the hon. Member for Caerphilly, the hon. Member for Ebbw Vale (Mr. A. Bevan) and others have said, that the Miners' Federation wants these Common Law claims maintained. But, according to the Committee, the T.U.C. have not expressed their view, and until the Committe have the view of the T.U.C. I do not think one can blame them for being chary of expressing a view.
§ Mr. A. Bevan
Might it not have been possible for the Committee to reach another conclusion, something to this effect: "It is for us to make a distinction between the class of citizens in the recommendations we are making without first of all hearing the observations of employers' and workmen's organisations on the matter"?
§ Mr. Ness Edwards
It must be within the Solicitor-General's recollection that both the Miners' Federation and the T.U.C. put forward evidence, first to the Royal Commission and then in a special memorandum to the Home Office, pressing their claim for the common law.
§ The Solicitor-General
It ought to be within my recollection about the Royal Commission, and if it is not I apologise. 1032 But, with great respect, I do not think that that affects my point. The Monckton Committee were asked to deal with the question: Is Section 29 to stand in its present form or not? Before they decide on matters which may involve an amendment of Section 29 they want to know, broadly, what are the views of organised labour and employers on that point. I am sure my hon. Friend will tell us, if it is material, but I do not know whether the Miners' Federation have yet put in a memorandum to the Monckton Committee.
§ Mr. Ness Edwards
I understand this to be the position: The Monckton Committee did not invite evidence before issuing their Interim Report. I understand that they are now going on with their sittings, and that evidence has been invited.
§ The Solicitor-General
I was dealing with the point that the hon. Member for Caerphilly was obviously worried about, that there was some weight in the mind of the Government against the Common Law action. No Member of the Government has ever suggested such a thing. The Government set up a Committee to consider what should happen to Section 29. At the time the Committee gave their Interim Report they had not had the advantage of knowing the views of organised labour and they said: "Do not let us deal with any of the questions raised in paragraphs (4), (5) and (6) until we have the views of organised labour and the employers." Then we come to the point whether they were right in taking that line. They say, broadly, that there is one class of case where the matter is in doubt. That is when there is a large percentage of blame on the part of the workman and he is only going to get a fifth or a tenth of his damages, and a considerable workmen's compensation claim. They say that is obviously a point of difficulty. It is a point of difficulty. I remember years ago saying that the biggest award that I had ever got in a workmen's compensation case was £950, when someone had lost most of the sight of his eye. The hon. Member for Llanelly (Mr. J. Griffiths) interrupted me and said he knew of a case of £1,000. No one else could suggest a bigger sum, so that is somewhere about the maximum. On the other hand, in a common law claim where the result had been the same, the 1033 sum might have been £5,000. I doubt if anyone would say he could get much more. That only allows down to 20 per cent. of liability. Even though £5,000 is the maximum that could be got at common law and £1,000 under workmen's compensation, it only allows 20 per cent. It is really a difficult point. I have taken an extreme case but it applies all along the range of accidents.
Now I take the point that the hon. Member for Nelson and Colne sought to dispose of, the question of a counter claim. He is right. In the majority of factory cases in my experience the injury to the workman outweighs entirely any damage done to the machine. On the other hand, in the case of explosions, especially in the mining industry, the damage which the employer has suffered would be considerable, but this is the real point to be borne in mind: that for the first time, under this Bill, there is something on which to enforce judgment. There is the plaintiff's claim. The example that I took was a case where the plaintiff was entitled to £1,000 damages and the employer had sustained £3,000 damage. The plaintiff is entitled to £500 and the employer to £1,500. That is, he gets for the first time £500 towards his £1,500 against the workman's claim. The question of counter-claim in that class of case may become more important than it has been in the past. I have taken the two cases on which the Committee relied. They are cases which want consideration.
Now I come to estimate the extent of the problem. We have been reminded that it does not mean that because a man is a workman he does not get the benefit of his claim. It is only in an action against his own employer arising out of and in the course of his employment. The number of those cases is substantial but it is not a very high fraction of the large number of cases. The hon. Member for Caerphilly will remember that in the case of Casswell v. Powell Duffryn which I fought for him some years ago we made considerable inroads on the question of contributory negligence as an answer to breach of statutory duty. We did not establish a full doctrine, but we got rid of the idea that every act that a workman might do could be considered an act of contributory negligence if he happened to go wrong after doing months of the same repetitive work. We cleared that out of 1034 the way and by that means we very largely limited contributory negligence as an anwer to breaches of statutory duty, covering those under the Coal Mines Act and in all other dangerous trades. Therefore again the number of cases is limited.
Here we have a Committee considering whether Section 29 shall remain as it is or not. If the evidence is as hon. Members have suggested, the Committee is going to have at an early date ample information on which to decide. Obviously we ought not to go further than that. When they have come to a conclusion, the Government will decide the final form of Section 29. What has been suggested by the hon. Member for Caerphilly and the hon. Member for Nelson and Colne is that we should to-day amend Section 29 in order to give an election to the workman at the time when he knows the Common Law damages. It appears to us that it would be unfortunate at this stage to make our small Amendment in Section 29 when the general principle is being examined and the form in which Section 29 will fit in with the industrial insurance scheme made clear.
With regard to what my hon. Friend the Member for Caerphilly has said, he will remember that in the final speech on the Debate on Part II of the White Paper, my right hon. Friend the Financial Secretary to the Treasury did give his assurance as to the bringing in of legislation to implement the White Paper at the earliest possible date, which he believed would be an early date. That is the position with regard to this matter. The Government are not suggesting—and I want to put it in the most unequivocal terms—that the workman who suffers an accident in the course of his employment should be put in any worse position than any other member of the community. That is the last thing that we desire. We do feel that here is a problem which we have threshed out in a most interesting Debate in this House, and it is one on which we want the most expert advice, and when we have had that advice we shall be able to see the final form of Section 29. Until then, merely as a temporary Measure, we suggest that we should not bring in any special arrangements until we are clear whether these cases which I have mentioned and which the Committee have mentioned are likely to be merely the odd cases or are likely to be the cases which form the major part of the picture.
1035 I am sorry that I have had to inflict another speech on the House—I am afraid at considerable length—but those of us who are interested in industrial injuries and the legal consequences find it very difficult not to express our views and to discuss them. I hope the House will forgive me and, in a general sense, give a Second Reading to the Bill in the light of what has been said, all of which will be most carefully considered.
§ Question, "That the Bill be now read a Second time," put, and agreed to.
§ Bill accordingly read a Second time, and committed to a Standing Committee.