§ Order for Second Reading read.
§ 11.6 a.m.
§ The Attorney-General (Sir Hartley Shawcross)
I beg to move, "That the Bill be now read a Second time."
The object of this little Bill is two-fold, partly to introduce a reform, long overdue, into a branch of our law which has been the subject of a great deal of criticism, and partly to regulate the position which will arise when, next July, the National Insurance Scheme comes into operation, when, on the coming into operation of that scheme, persons who sustain injuries may find themselves entitled both to insurance benefit under the national scheme and to compensation or damages from some third party who may have been responsible by his negligence for their injuries.
These were problems which were studied by a Committee under the chairmanship of my distinguished colleague Sir Walter Monckton, and the present Bill, while it does not adopt every recommendation of that Committee—it is, of course, the responsibility of the Government to decide, with the assistance of such advice as they are able to obtain, what proposals they ought to submit to the House in matters of this kind—is very largely based on the valuable inquiry which that Committee conducted and on the Reports which were eventually made.
It has been said that this is a lawyer's Bill, and while it deals with matters which, because of their technical and sometimes rather complicated nature, perhaps loom more largely in the experience and in the minds of lawyers, they are matters which may touch the life of any private citizen who has the misfor- 2158 tune to be injured, or perhaps the misfortune himself to injure someone else, by some negligent or otherwise wrongful act. In explaining the purpose and effect of the Bill, I shall therefore seek, as far as I can, to avoid the irksome technicalities of the law and to use language the simplicity of which will not, I hope, make it less understandable to the subtle minds of some of my legal friends who I see have gathered to make a lawyers' holiday this morning.
In pursuance of that simple programme, I will deal first with Clause 1. This Clause deals with the notorious and ill-favoured doctrine of common employment. It has hitherto been a principle of English law, and, indeed, remains so, except in that branch of it which deals with the relations between master and servant, that a man was responsible in damages not only for his own wrongful or negligent acts which caused damage to third parties, but also for the wrongful or negligent acts of his servants or agents in the course of their employment, and that principle worked well enough in practice until about 110 years ago. It grew up in the course of the steady development of our common law, and no special difficulties arose in connection with it. It is, perhaps, to the credit of Parliament to say that Parliament at no time sought to interfere with the normal application of the doctrine.
In 1837—at a time when, perhaps, the rights, interests and welfare of workmen were not a matter of such great interest as they are now—at any rate in the minds of those who were engineering the industrial revolution—in the course of a legislative function which they had consistently repudiated and at the same time always actively exercised, the courts decided that an employer should not be responsible for injuries to his servants caused, not by his own personal negligence, but by that of a fellow servant. That was the doctrine of common employment; that if an employee were injured by the wrongful act or the fault of another employee in the course of their employment under an employer who was common to both, in those circumstances the injured employee could not recover against the employer.
I understand that, with notable disregard of the doctrine nil nisi bonum, and in distinction to the rule which applies 2159 to living judges, it is permissible to criticise the conduct of judges who are dead. I should get into serious trouble if I were to say that the reasons for this original decision of the courts—in the case of Priestley and Fowler, I think it was called—were, to say the least, obscure. At all events, 20 years later the House of Lords adopted the new doctrine and based it on a theory which has been said to have been imported from the United States of America. This, with singular blindness to the facts of the relationship, held that workmen must be regarded as having impliedly contracted with their employers that they would accept the risks of being injured by the negligence or wrongful act of fellow workmen and would not hold their employers liable, as they would otherwise have been liable under the ordinary law of the land.
That was, of course, a complete fiction. There never was any such implied contract at all and the implication of such an agreement paid no regard to the real realities of the relationship. If I can with propriety make any comment on the matter, I can at least crave in aid what was said by a very distinguished Law Lord, a most liberal-minded and courageous man whose recent resignation we all regret. I refer to Lord Wright, who said:I cannot help regarding the doctrine as an arbitrary departure from the rules of the common law, based on a prejudiced and one-sided notion of what was called public policy and sanctioned by no previous authority.That was how the doctrine originated 110 years ago. Its ordinary application would produce the result that, say, in a railway accident for example, where owing to the negligence of a signalman there had been a collision, an injured passenger could recover damages against the company. The engine driver, however, although himself completely innocent of any negligence, and being possibly the victim of very severe injuries, or even being killed in the accident, would be debarred from recovering any damages at all. I say "any damages at all," because it is to be remembered that when this doctrine was introduced into our law there was no possibility, as there is now, of obtaining at least the weekly payment which the Workmen's Compensation Act came later to provide.
As time went on, and more liberal ideas prevailed, the courts came to regard this 2160 doctrine with growing dislike and disfavour. Later, in the effort to circumscribe its operation, they gave decisions which, while perfectly proper and desirable in themselves and tending to produce justice in these matters as far as justice could be produced, did at the same time, when compared with each other, producing the most fantastic results. Thus, if a driver of an omnibus were injured by the negligence of the driver of another omnibus, under the latest decisions it would be possible for him to recover damages against the common employer of both drivers, provided that the accident took place on the road; if it took place in a garage a different result might occur. Moreover, if both drivers were transferred by the same employer to drive tramcars, and if one driver was injured by the negligence of the other in the management of the tramcar, the injured driver was not entitled to recover anything because, apparently, tramcars run on lines and cannot deviate from their course.
By such devices the courts have sought to get round the doctrine, and I think it is true to say that the importance of the doctrine has diminished a great deal in recent years. It has been rare to find it raised as a defence in actions which have been actually fought out in court. But I am assured that the existence of this possible defence has resulted in a very large number of actions, which might otherwise have been brought at common law, never being brought at all, with the consequence that the workman has been compelled to fall back upon his remedy under the Workmen's Compensation Act.
Nor has criticism of this doctrine come from courts alone. From time to time Parliament has done all that it could—except, as we are hoping to do today, abolishing the doctrine—to criticise it. In 1880 the Employers' Liability Act, which is affected by the present Bill, was passed by Parliament to enable actions to be brought against employers in, I think, four classes of cases, with limited damages. In 1893, Mr. Asquith introduced a Measure the intention of which was to abolish the doctrine altogether. I do not wish to make any political point, but the Measure was defeated by manoeuvres which I am quite sure will not be repeated by hon. Members opposite on this occasion. Hon. Members on both sides of the House are now on the side of the 2161 angels. Perhaps it is better still to be an angel. It is a good thing to urge reforms of this kind—as, indeed, everybody has done for the last 50 years or so—but it is better still to be able to bring them about, I am glad to think that it falls to the lot of the present Government to introduce this important reform.
By Clause 1 we shall relieve the courts from the duty of having to decide, as they might otherwise have had to do, what was the position of two drivers of trolleybuses who succeeded in injuring each other in the course of their activities. We are abolishing the doctrine altogether, and also propose to repeal the Employers' Liability Act, 1880, the whole purpose of which was to provide some mitigation or relief from the otherwise harsh operation of the doctrine, and to enable actions to be brought in limited numbers of cases. Once the doctrine goes, the necessity for that Act will completely disappear.
In pursuance of my simple programme, I pass on to Clause 2. It deals with what, in effect, is a completely independent matter, although it is a matter which the Monckton Committee considered in association with the doctrine of common employment. The Committee, unanimously, proposed, as, indeed does Clause 2, to give some relief to employers from the existing liability to pay damages at common law. As the House will know, with the great increase in industrial activity in the last 50 years or so, Parliament has from time to time provided, either directly by Statute or indirectly by statutory regulation made by the Home Secretary or the Minister of Labour, a number of statutory requirements which have been designed to promote and protect the safety of workpeople in industry.
They vary very greatly in their content. Some of them deal with securing adequate ventilation in the mines; some of them with adequate ventilation in tobacco factories. A very common case, which will be present to the minds of all of us, is the regulations which require machinery which is dangerous to be fenced or secured so as to make it safe. Breaches of these regulations or of similar provisions actually contained in the statute have resulted not only in liability to criminal prosecution and fines and other punishment, but also in liability to pay damages to persons who may have been injured by the breach. That liability 2162 reposed on the employer who used the machinery and was guilty of a breach of the statute or regulation, and was one which was regarded as personal to him, which he could not delegate and of which he could not in any way relieve himself.
The existence of that liability and its precise legal implications and results would have been dependent, of course, on the precise terms of the statute or particular statutory regulations which are in point. Under one particular statute or class of statutes it has been a defence for an employer to say that he has done all that it was reasonably practicable to do in order to comply with the regulations. Sometimes, on the other hand—and this is particularly the case in respect of the obligations to fence dangerous machinery under the Factories Acts—it has been an absolute liability to fence such machinery or to comply with the statutory duties whatever they might be, and it has not been an answer for the employer to say, if he were able to say it, that he had done all that he reasonably could to comply with the regulations.
It has been thought—and there are many judicial decisions in which the matter has been canvassed and discussed—that the result of some of the statutory provisions has been to create a liability which was absolute, with the result that if it were not possible to fence particular machinery so as to make it safe, the employer was not entitled to use such machinery at all and he was liable to pay damages to anyone who was injured through the use of such machinery, notwithstanding the fact that he took all possible precautions and could not really have done more, except discard the machinery.
The problem is one which is still open in the House of Lords. I remember that it was raised acutely in the case of an employer's liability in connection with a circular saw, because that is a form of machinery which it is very difficult to make absolutely safe. Where a piece of wood can go it is possible for the hand pushing the piece of good to go also. Until recently—I do not know if the matter is different now—the view of the experts was that it was impossible to provide a fence which made such a machine absolutely safe. The House of Lords had to consider whether, if the most modern devices which were known 2163 at the time protected the circular saw, and an accident occurred, the employer would nonetheless be liable? I was engaged in the case myself just before the war, and the House of Lords kept that point open. We argued that the statutory obligation was no more than to make such a machine as safe as it could be made, and that it did not require an employer to cease the operation of the circular saw if, using it with the most modern devices for safety, it still could not be made absolutely safe.
The House of Lords did not decide that point. They were able to decide the case in my favour on some other ground, but the point was kept open. No doubt, in the future the House of Lords will eventually have to come to a decision on how far this statutory obligation actually goes; how far it is modified by the regulations which may be made under the statute; and how far there is an actual prohibition against the use of machinery which cannot be made absolutely safe, although it has been provided with all the practical safeguards according to modern engineering practice. That is the position as it stands at the moment. The law so far as the decision of the ultimate tribunal is concerned has not been finally settled.
Assuming the duty to be an absolute duty and assuming the employer to be liable to pay damages for injuries resulting from a breach of it, although he has taken all reasonably practical steps to avoid any accident, many people felt that it was unjust to impose on an employer the liability for a breach of statutory duty if he had done, as on that hypothesis he would have done, all that was reasonably practical to avoid the breach. If it was said that he had done all that he could do to avoid the accident, then he was not at fault in any moral sense, and why should he be required to pay damages at all?
The reply made to that was that if an employer wished to use machinery which was dangerous for the purposes of his business and profit and an accident occurred as a result of it, he should be liable as an insurer to pay any damages that resulted. I confess that I always felt this argument was a little specious, and might become increasingly so nowadays with the tendency to nationalise industries, for many important industrial 2164 concerns are no longer run for private profit, but for the benefit of the community. Moreover, the argument could be used with equal validity if an accident occurred in the course of a workman's employment, whether by reason of a breach of statutory duty or by reason of negligence, since it only occurred because the employer chose for his own profit to carry on that particular business in that particular way.
The Government gave careful consideration to this problem, which was one of very great difficulty, and I am bound to tell the House that at first the Government were inclined to accept the recommendations of the Monckton Committee, which was that employers should no longer be, as they are now, under an absolute liability to pay damages, and should be entitled to plead as a defence to any claim made against them that they had done all that it was reasonably practical to do. The fact that the Government were inclined to accept that view is the reason for the appearance of Clause 2 in the Bill.
On the other hand, there is no doubt that the fact that there was this liability to pay damages for breaches of statutory duty has been a very potent factor in promoting the strict observance of the statutory duties that have been laid down, thereby securing increased safety in industrial activities. Designers have been more ingenious in inventing suitable fences, guards, and so on; employers, knowing their own financial interests were closely involved, have been encouraged to be more careful in regard to the use of dangerous machinery and the compliance with statutory duties, and finally—and perhaps this is one of the most important factors—insurance companies have been particularly vigilant, often—indeed, I think, almost universally—by a system of regular and careful periodic inspection to see that all statutory duties were being complied with.
Moreover, if it appeared to us, on reconsidering this difficult problem, unfair to impose a liability to pay damages for breach of statutory duty, it would no doubt be argued that it was even more unfair to impose a criminal responsibility on an employer for breach of statutory duty if he had in fact done all that it was reasonably practicable for him to do to 2165 avoid the breach; and to relieve the employer from the criminal responsibilities which he labours under in regard to these matters and which were renewed by Parliament as recently as 1937, when the last of the Factory Acts were passed, seemed to us to involve a very dangerous relaxation of the existing safety requirements.
After giving full consideration to it and recognising the problem as one which introduced difficult questions, some of them ethical, perhaps, and some of them of a more practical nature, we came to the conclusion that, on the whole, it would be really a very retrograde measure to alter the existing law as to liability for breaches of statutory duty and we propose, therefore—or we shall propose in Committee—in effect to delete Clause 2 of this Bill so as to leave the existing law in regard to breaches of statutory duty, and both the civil and the criminal liability in regard to them, exactly as it is today, and also so as to leave the House of Lords free to decide, when the matter finally comes before them, the exact nature and extent to which statutory duties and statutory regulations impose an absolute obligation.
Indeed, we feel that to do otherwise would really involve taking away from injured workmen with one hand, the existing right which they have always enjoyed and which sometimes might be worth more to them than the right, which we are extending with our other hand, to proceed without the risk of being defeated by the doctrine of common employer. I hope the House will think that on balance—and this is obviously a difficult matter on which more than one view may be held—that it is better not to interfere with the existing law which has operated, I think, in practice with no great injustice to anybody and which, on the other hand, has resulted in damages being paid in cases where manifestly they ought to be recovered.
I have dealt with the matter in relation to workmen, but I am reminded by my hon. and learned Friend the Solicitor-General that this right of action is not limited to workmen. There may be other statutory duties, either by statute or regulation, by which private individuals are entitled to benefit and regulations which, if broken, will give rise to a right of action on the part of private citizens who are injured. It is a problem which 2166 looms more largely in the case of statutory duties imposed on employers for the benefit of their workmen, but there have been a number of statutes and a number of statutory regulations which do create general duties for the benefit of citizens at large, some of which may result in the injured citizen being entitled to damages if his, injuries are a result of a breach of that regulation. We feel it right to leave this practically as it is at present and not to introduce any modifications as a result of this Bill.
I come now to Clause 3, which deals with a completely different and in some ways more complex-problem—the problem of alternative remedies. Under the existing law a workman injured in the course of his employment may have a good action for damages in a lump sum at common law on the ground that his injuries are the result of the personal negligence of his employers or, when Clause 1 comes into effect, the result of the negligence of someone for whom his employer is responsible, or are the consequences of a breach of statutory duties; and, in addition to that right to sue for damages at common law, he may also have the right under the Workman's Compensation Act to claim a weekly workman's compensation payment, and to claim it independently altogether from the question whether his accident was caused by any wrongful act or default on the part of his employer or his employer's servants or agents.
These remedies in the law hitherto have been alternative remedies; they have not been cumulative. If a workman accepted workman's compensation he could not afterwards come along and claim damages. If, on the other hand, he obtained damages in common law—a lump sum, once and for all—he could not later come along and say that he must have weekly payments under the Workman's Compensation Act, even though it turned out that his injuries were of a much more permanent nature than was thought at the time he went to the court and obtained damages. I dare say that was normally a completely equitable position. Both the 'damages and the weekly payments under the Workman's Compensation Act came from the same employer. The employee was put to his election. He had to choose which of those remedies he would take, and the 2167 employer was protected from the liability of having to pay twice in both forms of remedy.
That has been the position up to now, but in future it will be entirely changed. The workman's compensation system as we have known it hitherto is coming to an end, and in its place will be provided the National Insurance benefits provided as a result of a scheme to which the employees and the State contribute, as well as the employer. In the past, as the House appreciates, the whole liability has been on the employer alone. The State has made no contribution and, except in so far as it may have affected wage levels, the employee has made no contribution. In future, the industrial benefit will be one to which the employee, the employer and the State will contribute, I think in the proportion of five-twelfths by the employee, five-twelfths by the employer and two-twelfths by the State.
The question which arises from that alteration in the whole system of industrial compensation is whether persons who are injured in circumstances which may entitle them to sue either their employer or, perhaps, a third party for damages at common law should also have the full right to recover the whole of their National Insurance benefit at the same time; or should they, on the other hand, be required, as workmen were previously required, to elect between the one benefit and the other, the one remedy and the other, the National Insurance benefit or the claim at common law; or should they—and this is the third case—have some part of their National Insurance benefit set off, as it were, against the amount to which they may be entitled in their action at common law?
I said this was a problem which will arise in future as it has not arisen in the past, in connection not only with claims against an employer, but with claims against a third party as well. As hon. Members will appreciate, a man may be injured in the course of his employment by the negligence of some third party. In the course of his employment he may be travelling about the streets on his employer's business and be run down by the negligence of some third party driving a motor car. Under the existing law, in such a case he would, it is true, have remedies against the third party and 2168 against the employer under the different branches of the law, one at common law, the other under the Workmen's Compensation Act. That situation will still continue to arise, but with this difference: that now the insured person will receive a benefit under the National Insurance scheme to which that third party, the negligent motorist, as a taxpayer will also have made some contribution. The question, therefore, poses itself in the way I have put it. Is the person injured in such circumstances to have the full benefit both of payment upon National Insurance Scheme and of such rights as he may possess at common law either against the employer or the third party whose negligence has caused his injuries?
This poses a difficult problem, and it is obviously one about which more than one view may be held. On the one hand, it may be said that the basis of damages as awarded at common law is compensation for the actual loss which has been sustained, and if the insured person gets that compensation in an action at common law against his employer, or against some third party, he ought not to get, in addition, the insurance benefits under the industrial scheme, because if he does he will, in fact, be better off than he was before.
Let us take an example. If because of an accident a person—it need not be a workman in the sense I have been discussing the position of workmen hitherto—sustains an injury which results in his losing a salary of £5 a week for, say, a period of 10 weeks, he would be entitled, under the law as it stands, to recover for that particular part of his injury £50 in an action for damages at common law, quite apart from any additional sum he may receive for the pain of suffering, and so on. Should he, in addition to that £50, get £2 a week—or whatever it may be under the industrial insurance scheme—and thus be a week better off, so far as his weekly income is concerned, than he would have been but for the accident? Or, on the other hand—this is the alternative view—in assessing the damages which he ought to be paid at common law in his common law action, ought that £2 he is to receive to be taken into account, deducted from the £5, and the award made to be limited to £3 a week? That is the sort of problem as it will pose itself in future.
2169 That is one view—that the injured person ought not to get the benefit in full—at all events, the full common law damages and the National Insurance payment.
The opposite view to that, held strongly by many people, is that insurance benefit is something to which an insured man is entitled in his own right, so to speak, apart altogether from any claim which he may have, whether it be against his employer or against the third party. These insurance benefits, it may be said, are the result of his own contributions to an insurance scheme, and ought not to relieve a negligent employer or a negligent third party from the liability which would otherwise fall upon him. That argument, as it seems to us, would be a very strong argument indeed if the insurance benefit were solely the result of contributions made on the voluntary thrift and initiative of the injured person himself.
Hitherto, it has certainly been no answer for the negligent driver of the motor car to say to somebody he has run down and injured, "I am not going to pay you any damages for this. You have been prudent enough and careful enough in the past to put down monthly or yearly premiums to insure yourself against the very risk that I might some day accidentally run you down and cause you injuries." That kind of defence has not been open to a third party, and he has had to pay damages in full, disregarding altogether any additional payment that the injured man may have received under a voluntary and privately negotiated insurance contract to which he alone had subscribed.
However, the position in future is, of course, going to be an entirely different position. When insurance benefits are the result of contributions, partly, it is true, from the insured person, but partly also from his employer, and partly from the State, it may be right for the law to step in and say, "You have been covered in respect of some part of the loss which you have sustained in this accident by an insurance scheme to which your employer and the State have contributed, and you ought not, therefore, to recover the whole of the damages to which you would have been previously entitled at common law and the whole of this insurance benefit in addition." Why, it will be asked, should an injured person get all the benefit 2170 of an insurance scheme to which he is only one of several contributors? Why should the employer, if the action is brought against the employer, or the third party, if the action is brought against the third party, pay twice over, not only under the contributions he has made as an employer or taxpayer to the National Insurance scheme, but also in damages which may be awarded against him by the court?
In considering this problem, the majority of the Monckton Committee came to the conclusion, for the reasons which are indicated in their Report—I am not going to canvass them before the House now—that once insured, a person is always to be entitled to receive full National Insurance benefit. If he also brings an action for damages against his employer or against a negligent third party, the amount of the insurance benefit that he is receiving, or entitled to receive, should be taken into account, and should be deducted from the total of damages awarded in his favour.
We have given this problem very careful consideration, and we have come to a somewhat different conclusion from that reached by the Monckton Committee. This is certainly a compromise solution to some extent. We think that in so far as the compensation ordered by the court, the damages awarded by the court, is compensation for loss of earnings or loss of profits, in so far as that is one of the elements in the total sum which is awarded by the court as damages in the action at common law, that the court should take into account against that particular item of the damages one half of the insurance benefits that will be received, or have been received, by the injured person in a period of five years from the date of his accident.
I want to explain that a little more fully in a word or two. That does not mean, of course, that courts will be required to enter into any complicated calculation, any unduly nice adjustment, of the amount of damages which they award under particular itemised heads. Damages are awarded by courts in one lump sum. People are given £1,000, £1,500 or £5,000, or whatever it may be, and the courts do not, in awarding that sum, allocate it to specific items. They do not say, so much is for pain and suffering, so much is for loss of earnings, 2171 so much is for special expenses which have been incurred. They take these matters into account in a broad way in coming to a conclusion as to what is a fair amount, and then they give a lump sum without breaking it down into specific items. What the provision in this Bill will require courts to do in future is that in arriving at the total sum which they think it right to award, and in taking into account, as one of the elements in that total, the loss of earnings, the loss of profits, which may have formed part of the damage which has been sustained by the injured person, they should set off against that item, that element, that loss of earnings, that loss of profits, one half of the insurance benefit. Courts will, of course, continue to have regard to many different items. They will have regard to the pain and suffering that the injured man has sustained and, as to that, insurance benefits will have nothing to do with the matter at all. They will continue to have regard to special items of damages, as they are called—medical expenses, if those have been incurred, There will be no obligation to incur them after the National Health Scheme comes into operation but if, none the less, they are incurred, those will rank, and benefits under the scheme will not be taken into account at all. Other items of special damage are damage to clothing, and damage to a motor car.
Matters of that kind will be entirely unaffected but, when they are dealing, as they have to do, in a broad and general way with the question, how much has this man lost in earnings, how much has he lost in profits because he has been away from work or business, then they will say, "But he has been receiving so much a week. We must allow for 50 per cent. of that, and deduct it from the amount which we would otherwise award." In that way, without entering into too nice a mathematical calculation, without doing the thing in too formal a way, the courts will be entitled under the Clause to pay some regard to the fact that, as a result of contributions only partly made by the injured person and partly made by the State or by his employer, insurance benefits will be paid in respect of the injuries for which damages are being claimed.
2172 There is probably no solution of this problem which produces an absolutely just or equitable result, no solution which will not be open to some criticism of some kind. I realise that there is great force in the view of the majority of the Committee; I appreciate that in some respects—for instance, in the limitation I have already mentioned to the House, that these benefits will only be set off for a period of up to five years from the date of the accident—we are adopting what is perhaps an arbitrary and compromise solution. It may be subjected to all the criticisms which can be directed against compromise solutions, but, on the other hand, compromise solutions, when they do not involve any sacrifice of principle, also have very great benefits, and we think, on the whole, that this is the 'best solution to recommend to the House in regard to this problem.
This is a modest little Measure. It solves a practical problem which the introduction of the National Insurance Scheme has created, and it removes one of the defects which have marred our existing system of law. In existing circumstances, with the grave economic, social and international problems that would face and preoccupy any Government, it has not been possible to bring about all the large measures of law reform which my noble Friend, my hon. and learned Friend, and myself would like to see some day passed into law by Parliament. None the less, in the existing Parliament, in various Measures such as the Crown Proceedings Act, the Companies Act, the reform in regard to divorce procedure, the Rent Restrictions Act, we have been able to make notable advances in the field of law reform, and this Bill, small and modest though it is, does have some place in that general but essentially and necessarily gradual programme.
§ 11.57 a.m.
§ Major Sir David Maxwell Fyfe (Liverpool, West Derby)
I am sure the House is grateful to the right hon. and learned Gentleman for the clear exposition he has given of a technical Bill, and my hon. Friends and myself have no intention of opposing the Bill or dividing the House against it. The only reason why I shall detain the House at all is that it is interesting occasionally, when one attends the obsequies of a portion of our law, to consider, as the right hon. and learned 2173 Gentleman has done, briefly its origin and also—and this seems to me of importance—to see how the courts who introduced it then tried of their own motion to improve it as far as they could; because I think this is an example of how our courts endeavoured, being confronted with this doctrine, to shape it to the changing economic and social conditions of the day.
§ Sir D. Maxwell Fyfe
If the hon. Gentleman will slow the acceleration of that speedily moving headpiece of his, he will realise that although the courts in 1837 may have invented it, when one comes to 1900 the courts at that time were confronted with it, so there are, as in so many spheres of disputation, two points of view, and shortly I am sure the hon. Gentleman will perceive a view other than his own.
However, I was just about to say, with regard to the origin, that the legal phrase usually mentioned is that Lord Abinger planted the doctrine of common employment, Baron Alderson watered it, and the Devil gave it increase. I should like to join the right hon. and learned Gentleman in his patriotic effort to cast for the rôle of the Devil, Chief Justice Shaw of Massachusetts, who invented, as far as my researches go, the basis of this doctrine of the implied term in the contract of employment. As the Attorney-General said, that was the position which obtained from 1800 onwards, and it was accepted. All I want to point out is the three definite lines of improvement at which the courts of this country arrived. In the first place, they narrowed down the conception of common employment to common work and work which was mutually interdependent. In the second place, they declared it was wrong that the employer should escape by delegating his responsibility and made him responsible for any delegation in the matter. In the third place, with the assistance of Parliament, they brought into a state of flourishing activity actions for breach of statutory duties. After some difficulties, which the Attorney-General and I remember so well 20 years ago, these improvements became the most useful adjuncts to industry and industrial accidents. I have always con- 2174 sidered that there was something in the distinction between accidents for which managements were responsible and accidents for which workers were responsible—in other words accidents resulting from one worker doing a job with another. I always thought that that distinction could be drawn, and I have stated that point of view.
I think, however, that there is great force in what the Attorney-General has said today—that, in this process of amelioration in the courts, we have now come to a position where anomalies are bound to exist, and in these circumstances I have come to the point of view—and I recommend my hon. Friends to agree ending and burying of the doctrine. In fairness to Lord Abinger, it ought to be said, on this, the last occasion when we shall be discussing this matter—and this is one of the mysteries which ought to be placed on record—that I find nothing objectionable in his original opinion. I have looked up what he said, and these are his words:The mere relationship of master and servant never could imply any obligation on the part of the master to take more care of the servant than of himself.That does not seem extremely unreasonable.He is bound to provide for the safety of his servants in the course of his employment to the best of his judgment, information and belief.That is the start of the doctrine, and I thought it only fair to the memory of Lord Abinger, after 110 years, to place on record the very limited manner in which he made the suggestion.
The second broad point dealt with by the Attorney-General was the fact that he proposed in effect to delete Clause 2 of the Bill during Committee stage. There is a point here which needs very serious consideration. I should like to reserve my own position, having just heard the argument, as to the best method of dealing with this. I should like to make one suggestion to the Attorney-General, which I think he has already in mind. Even if he takes the course he has suggested, if he will look at Section 60 (3) of the Factory Act, which co-ordinates the duties imposed by the various Sections of the Act and to the duties imposed by regulations made under the dangerous trade Sections, he will find there is power—and this view has the sanction of the 2175 Court of Appeal—to amend and alter the duties fixed by the Sections of the Act.
If it is made clear that it is possible, by regulations which are, I think, still made by the Home Office, to achieve the best possible machine, then this problem does not really arise. In other words, the problem is considered by the Government, through the machinery of the Home Office, and the standard we wish to apply is fixed objectively and fairly in relation to those who are engaged in industry. That would be a great help, and it would cover most of the problem. As we know, it is largely a Factory Act problem. As the spokesman for the Government said in another place, a provision similar to this is already in operation under the Coal Mines Act. Therefore, I put the suggestion forward for consideration by the Government. I think it would secure the high standard of safety we all desire.
With regard to the third broad point in the Bill, namely, of how far benefit is to be taken into account or disregarded in the exercise of an alternative remedy, I am not disposed to quarrel with the compromise at which the Government have arrived. I have had to consider in the past, and will have to consider again, in connection with this Bill, the two views which found expression in the Monckton Committee. First, that the damages are compensation, putting it broadly; and, second, that insurance payments should not be taken into account. It seems to me fair that when there is an insurance payment which is the result of three payments—five-twelfths by the man, five-twelfths by the employer and two-twelfths by the State—a fraction is the proper solution of the problem of what should be taken into account. It seems that of those constituent amounts I have mentioned a half is a reasonable compromise, and, therefore should be supported. As the Attorney-General said, this is a technical Bill, the provisions of which may provide difficulty for the layman. What I hope, and join with the right hon. and learned Gentleman in believing, is that the result of the Bill, despite its technicalities, will be to improve the position of a large number of workers in industry. For that reason, I am prepared to advise my right hon. and hon. Friends to give it a Second Reading today.
§ 12.11 p.m.
§ Mr. Seholefield Allen (Crewe)
It is a great privilege to be able today to attend the death ceremony of the doctrine of common employment. This doctrine, the origin of which we have heard, has met with the disapproval, I think I am right in saying, of all progressive lawyers for many years. The fact that it still remains part of our law is, in my view, due entirely to the obstruction to its abolition, year after year, by Members of the party opposite. Clause 1 was a hardy annual; it was introduced by Members of the Labour Party in 1935, 1936, 1937 and 1938. It was supported in a very eloquent speech, in 1938, by my right hon. Friend who is now Minister of National Insurance, and opposed by the right hon. and learned Gentleman the Member for West Derby (Sir D. Maxwell Fyfe) in a long speech which was full of alleged reasons why this doctrine should not then be abolished.
This morning the right hon. and learned Gentleman comes to the House contrite, and in a white shroud, and says, on behalf of his party, that they are not opposing the abolition of this doctrine today. I think there are about 390 reasons in this House why they are not opposing it, but when the majority was with the other side they invariably opposed the abolition of the doctrine. The Webbs had something to say about this doctrine many years ago, in their famous book on "The History of Trade Unions." The Labour Party has consistently opposed this doctrine, and we welcome this opportunity of getting rid of it, while at the same time welcoming the conversion of the right hon. and learned Gentleman the Member for West Derby to its abolition. I notice that the hon. and gallant Member for Barkston Ash (Colonel Ropner) is not here today. As I read through the various Debates which have taken place on this subject I discovered that the hon. and gallant Gentleman was one of the chief opponents of the beheading of this doctrine. The reason given in those days was that it would cost employers and trade and industry too much to put an end to the doctrine. In 1937, the right hon. and learned Gentleman the Member for West Derby actually said that Parliament had enacted it and re-enacted it 2177 when it passed the Workmen's Compensation Act. I will remind the House of what he said:Parliament has recognised this doctrine four times, and has three times expressly reenacted it. It was recognised in the Act of 1880, and was re-enacted in the Compensation Acts of 1897, 1906 and 1923."—[OFFICIAL REPORT, 26th February, 1937; Vol. 320, c. 2367.]I see nothing in any of these Acts which "re-enacts" the doctrine of common employment. It has the sanction only of the common law and we are here today, as I said, to bury it, because it is time it was buried. Many claims which could have been made in the past have been frustrated by this doctrine, and many workmen and their wives and dependents have had to put up with small sums by way of compensation under the Workmen's Compensation Act because they were unable by reason of the defence of common employment to go to the High Court and claim damages at common law which, in each case, would have been much greater. I and most progressive lawyers will be exceedingly pleased to know that this is the death ceremony of this doctrine.
I was glad when I saw the Bill that Clause 1 was doing what I have just said, but when I came to Clause 2 I was troubled by the fact that the Government should seek not to increase the rights of the workers in actions at common law, but to whittle them away. I thought Clause 2 a retrograde step, and I am proud to be a supporter of a Government which, when they see they have made a mistake, have had the courage to retreat. This is far from the position which obtained when the Bill was given its Second Reading in another place, when everybody seemed to join a patting party and entirely approved of the Clause. I am sure, however, that it met with the disapproval of most trade union organisations, and I am glad that the Government have had second thoughts and intend to remove it from the Bill.
I would that I could say the same of Clause 3. I wish the Government would have second thoughts about this Clause as well. There is something to be said for the argument that as an employer makes a contribution under the various schemes so the employer should get some benefit, but that only applies where the litigant brings 2178 his action against his employer for an accident in the course of his employment or work. But the stranger, someone who has made no contribution whatever, will get a similar benefit under this Bill. If I am knocked down in the road by a motorist, and I bring an action against him, and get some benefit under the Act, this Clause will have the effect of depriving me of a certain amount of compensation. Why? The motorist has made no contribution. It may be some argument to say that in the case of a workman the employer has made a contribution, but there is no argument whatever where the defaulter is a complete stranger, and not a contributor to my particular scheme. So I see no reason why the Government should not also give way on this matter. Although it was a recommendation of the Monckton Committee on Alternative Remedies that something of this kind should be introduced, there were reservations, in Annex A, by the trade union representatives, who said:In our opinion the comparison has nothing to do with the principle which is involved. If the person is insured against certain hazards he is clearly entitled to receive the benefit of such insurance, irrespective of the source which provides them, and we do not feel that the argument used against this view is justified, indeed, to some extent this opinion is shared by our colleagues, who recommend that National Insurance benefits shall be paid and shall not be recoverable by the Minister out of any damages which may be awarded…The claimant who is contributing for certain benefits provided under the National Insurance scheme is, in the circumstances, but very little different from those who seek to protect themselves by private insurance.There is no right to deduction from any claim for damages that a plaintiff may have received under a private policy of insurance to which he has contributed. I see no reason why this provision should be introduced at this stage. Further, in actions for damages under the Fatal Accidents Act it is specifically provided that widows' pensions shall not be deducted. What we plead for today has received the approval of this House in times past.
§ The Attorney-General
We do not propose that this provision shall apply to claims under the Fatal Accidents Act.
§ Mr. Seholefield Allen
I was illustrating the principle of the thing. In principle, in the past, when there has been a benefit under statute to which a person has made 2179 contributions as, for example, a widow's pension, Parliament has said that no deduction should be made from damages in respect of such benefit. The Bill is an exception to that principle, and says that when contributors are benefiting under various insurance schemes, half of that benefit shall be taken into account.
I see too that it is to be left that damages at large are not to be allocated in specific items. We all of us in the courts understand that that is a great benefit. When we tell a judge or jury that they have to find out some hypothetical five-year figure and make some hypothetical deduction from same hypothetical sum, and the jury gives the answer or the judge gives the answer, there is no way of ascertaining whether this provision has been properly taken into account or not, or whether it has been correctly taken into account or not. There is no way of ascertaining whether the principle set out under this Clause has been followed. There is no way of checking whether five years has been allowed, or two years, or one year. I ask the Government to think again about this matter and to let us have a thoroughly good Measure, with common employment abolished and Clause 2 withdrawn, and Clause 3 also withdrawn. I apprehend that the Government are convertible, and I am sure that a great number of my hon. Friends on this side of the House would be pleased to hear that the Government had been converted to the views which I have expressed.
§ 12.23 p.m.
§ Mr. Basil Nield (City of Chester)
The atmosphere of amity and concord which obtained before the hon. and learned Member for Crewe (Mr. Scholefield Allen) rose to address the House, I hope to restore. He was at pains to suggest that, from this side of the House, we have done very little to welcome the abolition of the defence of the doctrine of common law. He did not, however, quote from a speech which I myself made in this House in connection with the Crown Proceedings Bill, in which I specifically asked that legislation might be introduced at a later date. The right hon. Gentleman, on that occasion, promised such legislation—and here it is. The right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) has described this as a technical Bill, and so it is. The 2180 Attorney-General has described it as a modest little Bill and it has become somewhat smaller since Clause 2 is, apparently, not to be proceeded with.
The Bill, I suggest, embraces matters of great importance, for this reason: its proposals concern actions relating to the law of damages for personal injury. It is, of course, actions in that form which make up the greater part of the day-to-day business of the civil courts. When we are considering amendments or alterations to it, they require very careful consideration. Upon Clause 1 I want to reiterate what has already been said. For my part, I greet with satisfaction the abolition of the doctrine of common employment. The history of it has been covered, and, in particular, it has been pointed out that the doctrine was based upon the theory that when a man entered into a contract of service, he was to be taken to undertake the risk of the negligence of his fellow servants; and so it was a somewhat artificial theory on which this doctrine really depended. For a long time it has been recognised that the retention of the doctrine may involve, and did involve, certain injustices and inequity. Among the quotations which I have examined from the speeches made in another place, sitting as the last appellate tribunal, is one to which I would like to refer. That is the speech which Lord Atkin made in a well known case on this subject in 1939, when he said:At the present time this doctrine is looked at askance by judges and text book writers. 'There are none to praise and very few to love.' But it is too well established to be overthrown by judicial decision.That was, I think, in effect, an invitation that legislation might be introduced to do that which the courts by reason of long usage were not in a position to do.
Clause 2 of the Measure defines certain substantial proposals for the alteration of the law. I should like to know on what date it was that the Government changed their mind on this matter and decided not to proceed with the Clause. The Bill was ordered to be printed on 18th December last, and certainly I had no idea that this change was to be brought about. While I, like my right hon. and learned Friend, reserve to another time and after hearing the arguments, what I have to say on this Clause, I would say now that it is my view, after a good many years of experience 2181 of these matters, that the law sometimes does operate harshly upon occupiers of factories who are subject to the statutory requirements of the Factory Acts and regulations. It is often not open to them to show, as this Clause rather proposes, that they have taken all reasonable steps to make their particular machines safe and that therefore they are not liable. If there was to have been an alteration in civil liability, it would have followed, I suggest, that there should have been some amendment in relation to the criminal responsibility of the occupiers of factories. We know that even when the occupier of a factory has had a machine which has been operated without accident for some time, and which may have been inspected by a Home Office inspector, and then an accident happens, there is almost always a heavy fine without any opportunity of his saying "I have done my very best in the circumstances." Thus, if it had been proposed to amend the law as to civil liability, it would have been necessary to amend the criminal law in this matter as well.
Finally, a word on the proposal to introduce new arrangements for the assessment of damages. On this point I ask for some enlightenment from the Solicitor-General, who is to reply. I think it is right to say that a court which is charged with the task of assessing damages for personal injuries divides that assessment broadly into two parts: special damage—that is to say, loss of earnings, out-of-pocket expenses and so forth; and general damage—that is to say, pain and suffering and future disability. In this Bill we are directing our minds to the question of special damage and loss of earnings, and the suggestion is that half the benefits under the various schemes shall be deducted from the amount of the earnings. I would like to put k hypothetical case and ask a question about it.
Let us assume that the injured man earns £5 a week, and that after his accident he will be entitled to benefits of one sort or another of, say, £2 a week. When the court assesses his loss of earnings, as I understand the arithmetic, it will be £5 earnings, £2 benefit; halve the benefit, which gives £1; deduct that froth £5, and assess the loss of earnings at £4 a week. Thereafter, that injured person will be receiving £4 loss of earnings and£2 benefit, amounting to £6. He is, therefore, £1 better off than he was 2182 before the accident. The question I ask—and I think it is important—is whether it is anticipated that the court will assess general damages by taking into account the extra£1, as it were, in diminution of general damages? I should have thought not, but I submit that one of the most difficult tasks which a judge has is to assess damages, and we ought to assist the courts by making that point clear, perhaps, as well as others, during the course of our discussions on this Bill.
§ 12.33 p.m.
§ Mr. Berry (Woolwich, West)
Most of the remarks that I have heard in this Debate have been directed to Clause 2. I am not approaching this matter as others have done, from the legal point of view, but from another aspect. Some years ago I used to have a fair amount of practice—practice which I deplored having to do—in giving expert evidence in the courts, and in the course of doing so I came under the cross-examination—always acute and always fair—of my hon. Friend the Member for Stoke Newington (Mr. Weitzman). I wish all the cross-examination which I have undergone in my lifetime had been as fair as his.
I congratulate the Attorney-General on the withdrawal of Clause 2, although if he follows the suggestion that Clause 3 should also be withdrawn, goodness knows what would be left of the Bill except the very valuable provision contained in Clause 1. I cannot think that the Bill would be introduced purely for the sake of Clause 1—
§ Mr. Berry
If my hon. Friend will allow me to finish the sentence, I was going to say, "by itself." Like other hon. Members and many people outside the House, I know that a lot of hardships have been inflicted through the operation of the doctrine of common employment. True, there have been different interpretations of that doctrine, and it has depended very much on the views taken by learned counsel and learned judges of that doctrine. With reference to the views that have been taken by learned counsel, may I say that I do not agree with my hon. and learned Friend the Member for Crewe (Mr. Scholefield Allen) who referred to a shroud for the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe). We trust it will be 2183 many years before the right hon. and learned Gentleman is obliged to have a shroud. As to whether the right hon. and learned Gentleman ought to wear a white sheet, I leave him to discuss that with his legal brother, the hon. and learned Member for Crewe.
As to Clause 3, I can see a likelihood of a fair amount of legal discussion arising when it comes up in the courts. This is a lawyers' Bill, and it is technical, although we can congratulate my right hon. and learned Friend the Attorney-General on the absolute simplicity with which he introduced this Measure. He made a legal matter very clear to laymen. Would that all legal gentlemen shared that simplicity. Small as this Bill is, its introduction marks an historic occasion, for, quite apart from the legal aspects, human considerations are brought into the Bill. Reference has been made to the propriety of a man getting more money when he is injured than he gets when he is at work. We all know that when a man is laid up, the home expenses frequently increase considerably, and while I recognise that some of those expenses will be decreased because of the Government's social services policy, nevertheless, in the domestic sphere these expenses are bound to increase. I welcome this Bill because it recognises the human side of the problem as well as the legal side.
I welcome Clause 5, which binds the Crown to the provisions of the Bill, because there have been anomalies in the past. While there may be arguments on Clause 3, and although there are times when I view with suspicion some of the legal wrangles in this House—bearing in mind, whether it is correct or not, that old gibe that our laws are drafted by lawyers for the benefit of lawyers—I welcome the Bill because I belive it will contribute to the sum total of human happiness.
§ 12.38 p.m.
§ Mr. Sydney Silverman (Nelson and Colne)
I do not accept the view that this is a lawyers' Bill, or a technical Bill, designed to clear up some outmoded' and outdated technicality or abnormality. I do not think the Bill should be seen against that background or in that context. My right hon. and learned Friend the Attorney-General was much nearer the 2184 truth when he put the Bill against the background of general social reform to which this Government have been committed. I noticed, however, that in his recital of the list of social reforms which the Government were putting through, he modestly omitted to mention the suspension of the death penalty.
This doctrine of common employment should be regarded not from the point of view of its tortuous logic, but of the infinite damage which it has done to human life in 120 years. The misery that it has caused—the tragedy in small working class families, the destitution, the intense feeling of social injustice and, may I say it?, capitalist tyranny—has never been measured, but it must be very large indeed. I would have welcomed the Bill very much more if it had consisted of Clause 1 alone. I see no reason why anyone should regard the matter as of so limited an importance as not to justify a separate Measure in order to remove this evil.
Many of us in the last few years have sought to get the evil remedied by just such a one-Clause Measure. We have nearly always been supported in so doing not by all the lawyers, but by nearly all, irrespective of party. I intervened in the speech made by the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) to say that the courts were not "confronted" with the doctrine of common employment but that they had themselves invented it. Although I think that that is substantially true, I quite agreed with the retort I received that this is by no means the whole of the story. It is true that, in the end, however it may have originated, this doctrine of common employment for many years received the sanction of the House of Commons and of Parliament, and not merely by implication.
It is true that Parliament also did it by implication, but neither the Employer's Liability Act of 1880, nor any of the Workmen's Compensation Acts, would have been necessary at all except on the basis that common employment was the law of the land, ought to be the law of the land and would remain the law of the land. Unless I am mistaken, every one of those Acts contains an express provision that no action for damages shall be brought against an employer except for his personal and direct 2185 negligence. That means that he was not, in the case of his servant liable under the doctrine of vicarious responsibility under which he was responsible to anybody else.
Why was it? Only because of the doctrine of common employment. The right hon. and learned Member for West Derby was right in his speech in 1938, when he said that Parliament had four times at least re-enacted the doctrine of common employment. It may have been originally a figment of the judicial imagination, but it did not remain that. In the end it was passed repeatedly by House of Commons after House of Commons, in which those of us who are in a majority were in a minority. In other words, it ceased to be a legal doctrine, and became a social and economic doctrine imposed by those who mainly represented employers against the constant protests of those who mainly represented workers. It is only today, with a Labour Government and a large Labour majority, that we get rid of this evil thing, without the opposition of anyone.
I wish the Bill had stopped there. It contains Clause 2. It was for the sake of Clause 2 that I put down the Motion for rejection which stands in my name on the Order Paper. It seems to me that the Bill is drawn to take away with one hand, more than it offers by way of benefits with the other. To take away by Clause 1 the disability under which a workman suffers, and to impose upon him a new disability by Clause 2, would be to leave the workman worse off and not better off because of the Bill. I would have preferred no Bill at all rather than the Bill with Clause 2 in it. I am sure the workers would have been better off without the Bill, in those circumstances.
My right hon. and learned Friend has made a clear, lucid and nicely balanced statement of the various reasons for and against Clause 2. His argument was too ridiculous. I see no merit in Clause 2. I cannot imagine how anybody ever thought there was merit in it. What was the situation? It was assumed that the State had imposed upon the employer an obligation which he could not reasonably perform. Clause 2 is directed to cases of that kind. If the regulation imposes an obligation which cannot be reasonably performed, the regulation 2186 ought to be withdrawn. That is the way to deal with it. If the regulation remains so as to compel people to perform an obligation which they cannot perform, we have what position?
Take the case of the circular saw to which the Attorney-General referred. It would be impossible for the House of Commons at this stage to legislate for the abolition of circular saws. Everybody concedes that argument. It might not be very easy and in some cases it might be almost impossible to make circular saws in operation equally safe for everyone. In those circumstances, what does Clause 2 propose to do in the name of justice and equity? It proposes to say "Let the circular saw continue to drive and let it continue to be unsafe. If an unfortunate workman loses a finger or an arm or a leg, deprive him of his damages because the employer could not protect the circular saw."
How in the world can that be reasonable? How can anybody ever have thought that it was reasonable? If the employer is to be allowed to continue to work, for his own benefit and profit and for the development of his trade, an instrument which he ought to protect, is bound by statute to protect but cannot protect, then he must do it at his own risk and not at the risk of his workmen. How can anyone ever have held an opposite view to that, and could have thought there was justice or equity in the opposite view, more particularly as the criminal law on the subject is not available? We should be in a really stupid position, but for the opportunity to withdraw the Clause in Committee. The employer would be liable criminally in the criminal courts for a breach of regulations which he could not have obeyed anyhow, whereas he would be exempt from having to indemnify the workman who has suffered by the danger. If we are to make any discrimination at all the sensible thing to do is to say: "It shall be a defence in the criminal courts to a criminal charge if you feel that you reasonably could not have done otherwise. If you could not reasonably do otherwise and if in fact your servants or workmen suffered, there is no reason why you should not insure against that damage."
Why is everybody so mealy-mouthed about insurance in this connection? We 2187 all know why we keep insurance out of the discussion in the courts. It is because we may give juries inflated ideas of damages if they feel that the money will not be found by an individual employer but by some powerful and wealthy corporation like an insurance company. I agree with the time-honoured practice that when we are dealing with these cases in the courts the question of insurance is irrelevant and we leave it out. It is not irrelevant here. What injustice is there to the employer to say that in order to cover the risks of his trade he should pay what little is necessary to an insurance company? It amazes me that anybody in this Government should have thought that Clause 2 was right or proper. I rejoice to see that it has gone.
I think that Clause 3 is retrograde, too. I do not take anything like so strong a view of it as I took of Clause 2, but why is it necessary to interfere at all? Why is Clause 3 necessary? There is an arrangement whereby the State provides a general, all-inclusive insurance system to cover the workers against the accidents of life. Everybody pays into an insurance fund in order that those accidents shall not leave these people destitute but that some agreed minimum standard of existence shall be given them.
In this Bill we are not dealing with accidents. We are dealing with people who are injured and maimed, perhaps for life, and perhaps killed by reason of some direct wrong done to them which ought not to, have been done and which need not have been done. The man's action for damages depends on his ability to prove that his damage arose not by accident but by neglect. Why in the world is it necessary to mix these things at all? What the man gets out of his contributory scheme is one thing and what he is entitled to get by way of damages because somebody has wronged him is quite another thing. Why mix it up? It is not proposed to mix it up in some other cases. The principle is still accepted with widows' pensions, and if we do not take into account the widow's pension, why take into account the sickness benefit? The principle is retained in this Bill in that one limited instance of widows' pensions in cases arising under the Fatal Accidents Act, and I do not see why the principle should not be applied all round.
2188 Even if it is thought that there is some ground for making some reduction in the case of the Industrial Injuries Act, why do it with sickness benefit? Every argument advanced for Clause 3 could have been advanced since 1911 in regard to payments under the National Health Insurance Act, but they never were. The courts were expressly instructed not to take those benefits into account. We are taking a step backwards in instructing the courts to take into account sickness benefit.
Under Section 83 of the Industrial Injuries Act, there is provision for supplementary schemes. The Act provides for a general scheme for all workers, with contributions by workmen, contributions by employers and contributions by the State, and standard national benefits, but any industry is allowed to work out for itself a supplementary scheme whereby supplementary benefits can be paid. The miners, if they have not already adopted such a scheme, are on the point of doing so. Therefore, by means of extra contributions by employers and workmen, the standard of benefit, if industrial injury occurs, is higher than the normal national minimum. Is it intended that Clause 3 shall apply to those supplementary benefits as well? That would be an absolutely monstrous position. Those supplementary benefits are purely private arrangements, voluntarily undertaken in the industries themselves, and half their benefit would be destroyed if they were to be subject to Clause 3. I hope we can get some answer about this. It must have been considered, and I do not know whether any conclusion has been reached about it, but I would like an assurance before we reach the Committee stage—or I would like some Amendment made during the Committee stage to safeguard the matter—that these supplementary benefits shall not be taxed and charged under Clause 3.
§ The Attorney-General
I do not think Clause 3 applies to those benefits. All that Clause 3 deals with is the actual benefit under the National Insurance Act. I thought I had made that clear.
§ Mr. Silverman
Maybe that is so, but I do not know. Subsection (1) says:One half of the value of any rights which have accrued or probably will accrue to him 2189 therefrom in respect of industrial injury benefit, industrial disablement benefit or sickness benefit.Sickness benefit does not apply, but the Industrial Injuries Act provides the possibility of making a supplemental voluntary scheme and that may be interpreted as a scheme under the Act. What a man got under the supplementary scheme, if one came into operation, might still be described as an industrial injury benefit or an industrial disablement benefit. If my right hon. and learned Friend says that that is not his intention and that it is not the intention of the Bill, I am very grateful, but I hope that words will be introduced into the Bill to make it abundantly clear. That is what I am asking for.
I had put on the Order Paper a Motion to reject the Bill. That was directed against Clause 2, which I do not regard as only a Committee point. The other points upon Clause 3 are no doubt Committee points, and I would not ask the House to reject the Measure only on their account. In view of the assurance about Clause 2 which the right hon. and learned Gentleman has made, I do not propose to move my Motion.
§ 12.57 p.m.
§ Mr. Sargood (Bermondsey, West)
I do not intend to discuss the legal implications of the Bill. We have already seen that there are quite a number of legal luminaries in the House who are well able to do that, and I do not intend to compete with them, particularly, as I would not be able to advance in an encounter of that kind the plea of common employment. I wish to convey to the Attorney-General and the Government the satisfaction that will be felt by millions of work-people at some of the proposals in this Bill. The Attorney-General mentioned that there were a very large number of cases where, because of the possibility of the plea of common employment, action had not been taken, and I can endorse that very fully from my experience in the trade union movement. With the removal of that plea, there will be possibilities of a very much greater measure of justice being done, and for that reason alone, the Bill will be welcomed by the trade union movement, which has long advocated this change.
§ 12.59 p.m.
§ Mr. Turner-Samuels (Gloucester)
Apart from one or two minor provisions and subject to most of the Clauses other than Clause I going, I regard this as a very good Bill indeed. All progressive lawyers will rejoice at the complete disappearance at last of the doctrine of common employment. It is perfectly correct what the right hon. and learned Gentleman the Member for West Derby (Sir D. Maxwell Fyfe) said—and I am sure that the shade of Baron Abinger will be grateful to him for what he said—that it is difficult to deduce from Lord Abinger's judgment anything which justifies what has followed from it. That was a case where the facts were very simple—a van was overloaded by one servant with the result that another servant became injured; and the fact remains that the decision was that the employer was held not to be liable because the negligence was that of a fellow servant. Whatever Lord Abinger may have decided, whatever his words import, the result was that it turned out very disastrously for a long period of time for many of those who were injured in their employment, because it did imply acceptance of risk by one fellow servant of the negligence of another, which has proved the basis for this doctrine of common employment ever since. It is true that it was an import from American jurisprudence, but, nevertheless, the effect of it has been felt here for over 100 years.
Another extraordinary thing is that this doctrine was not brought within clearly defined bounds until 1939. Prior to then, it was made to apply to a wide variety of cases and was not cut down in any precise way, and it was only in 1939, as I think the right hon. and learned Member for West Derby will remember, in a case which came from his district, the case of Radcliffe v. Ribble Motor Services, in which I had the honour to appear with my right hon. and learned Friend the present Chancellor of the Exchequer on behalf of the plaintiff—it was only then that this doctrine became confined within controllable limits. It was laid down there that instead of the wide operation of the rule, which appeared to apply in every case where one servant was injured from the negligence of another, the doctrine was made to apply to a very much narrower field. 2191 Nevertheless, even at that its effect still remained highly objectionable and completely indefensible.
There was another instance in the Court of Appeal in a well-known case, that of Pollock v. Burt, when the doctrine was still further restricted. A further and most important result of these two cases, with both of which I was professionally associated, was that they showed beyond doubt that this particular doctrine of common employment had become completely discredited, decrepit and legally debunked. It is not altogether fair to criticise the judges about this matter, as they have been criticised. It is true that before 1939 they may have been open to adverse criticism but, in 1939, in the House of Lords, especially in the cases of Lord Atkin, Lord Macmillan and Lord Wright, they were obviously and vocally anxious to do everything they possibly could clearly to define and narrow down the doctrine. I remember Lord Atkin saying that had it not been that this doctrine had persisted for 100 years, the House of Lords would have considered whether the rule should not have been done away with altogether. That in fact was what my right hon. and learned Friend the Chancellor, who was leading counsel in the case, had asked for. The rule, however, was too deeply rooted to make it possible for the House of Lords entirely to abrogate the effect of the doctrine.
In the result, no self-respecting Government could allow this doctrine any longer to remain part of our industrial law, and that, in itself, is a sufficiently good ground for putting in Clause 1 of this Bill. In addition, I think everyone agrees that the Monckton Committee and the result of their inquiry completed the demise of this doctrine, and all this House is concerned with to-day is to bury it as quickly as possible. It was said in the House of Lords that Clause 2 of this Bill was a sort of consideration given to employers for the abolition of this particular doctrine, but that was a completely untenable position to take up. There can be no doubt that the doctrine itself, having been discredited by everyone, was bound to go, and that it was proper to get rid of it. The idea that Clause 2 should be a kind of consideration in this way was, in my view, completely insupportable.
2192 It has been said, and this is the last and most attenuated argument that has been advanced to support the retention of this doctrine, that, if it goes, workmen will be less careful than they were before. I do not think any workman, or indeed anyone, takes risks merely for the purpose of getting damages. I think that view is all wrong. I remember very vividly Lord Justice Kennedy, in an insurance case many years ago, using a striking phrase in which he said, "A man does not gamble with his life in order to gain a Pyrrhic victory by his death," and that principle clearly equally applies here. I do not think it is either true or just to say that a working man, or any other rational person, is prepared to take these risks in order to get damages, and I do not accept that any worker or employee is heedless of the safety of another employed with him.
I think all workers and employees are very conscious of the responsibilities which they have in preserving the safety of each other, and it is very significant that this argument about being more careless was the very argument which was raised when the Workmen's Compensation Acts were originally introduced. Experience has shown that that was completely unwarranted.
The learned Attorney-General referred to the Act of 1880, by which Parliament recognised that this doctrine was bad and that Act was intended to mitigate it. Unfortunately, it failed in practice. The Workmen's Compensation Acts, which also had the same object, had considerable limitations, so far as their effect on this doctrine of common employment was concerned. I would like, in passing, to refer to Clause 1 (3), which provides that there should be no contracting out of this provision in the Clause. I think it is only right here to say that the introduction of that particular provision was due to Lord Simon, in another place, raising the point and receiving the assent of the Lord Chancellor, to the Clause being subsequently introduced. It would have been a very serious defect if the provisions had been left so that the employer might have contracted with the servant that this very important provision, should be modified or ought not to apply. Therefore, that was an excellent provision to make.
2193 With regard to the question of the measure of damages, there has been a conflict of views as to whether the injured person—the workman or even anyone, say, sustaining an accident in the street—should receive both the benefits under the Industrial Injuries and the National Insurance Acts and also damages, or only one of them. The consensus of opinion in the Monckton Committee, and also the evidence before it, was strongly in favour of both remedies being available. I cannot myself see on what grounds the assumption is based that there should be a deduction from the insurance benefits in arriving at the amount of damages. The Attorney-General has frankly stated that this idea has no logical basis. It seems to be purely a solution of convenience and a compromise between the conflicting proposals which have been made. On the other hand, I see no reason why damages should be affected in this way. Benefits are essentially insurance.
The Attorney-General mentioned the fact that a contribution is being made by the third party and also by the employer, but I do not think there is very much force in that point. The fact which impresses me is that, as far as the employer is concerned, he is actually getting rid of his liability for workmen's compensation, which is quite a substantial matter. He is getting rid of a heavy liability, but, for reasons which I do not see and which are admitted not to be resting upon any logical ground, the benefits provided in the statute are to be taken into consideration. This is a matter at which the Government might well look again. It is true that the provision is not to apply to the Fatal Accidents Act, and its amendments but it is to apply to the case where the plaintiff makes his claim himself or, if he is dead, a claim is made for the benefit of his estate.
I ask the learned Attorney-General to look at Subsection (3) of Clause 3, which appears to be ambiguous. Does it mean that, where damages are reduced because of the worker's contributory negligence, no injury benefits are to be taken into account? Or does it mean that one must first regard the case as though there was no contributory negligence and, then, having got the proper damages; one must deduct the value of half of the five years' benefits and proceed to scale down the 2194 balance according to the degree of the worker's contributory negligence? If that is the intention, the Subsection certainly requires to be looked at again.
A further criticism of this Subsection is that the benefits themselves are not an adequate substitute for the workman's common law rights. I think it is admitted on all sides that the benefit under National Insurance is not equivalent to the remedy under common law. In serious cases the remedy would certainly be completely inadequate, a fact which is amply illustrated by the examples given in the Monckton Report.
I welcome the fact that Clause 2 is now to go. I do not think the chatter was sufficiently considered in another place, otherwise the Clause would never have been put in the Bill. Everyone agrees that in industry today workmen are exposed to more and greater risks than ever before; the hours are often longer; the tempo of production is very much increased; there is dilution of less skilled workers; and as a result of the war there is much greater fatigue. For these reasons there is a greater need for safety measures than ever before. As will be seen from the last report of the Chief Inspector of Factories, the numbers of fatal accidents in mines and in factories are now very much higher than in 1939, especially in the case of young persons, to whom there are now many more accidents than formerly. The Inspector's report demonstrates moreover, that in consequence of liability employers are constantly endeavouring to make suggestions to the makers of machines for their improvement. In this way, because of employers' responsibility and liability, machinery in factories and mines is constantly being improved and made more safe. Two examples will serve as illustrations. One is the case of power presses, as to which there has been very great difficulty and danger; the guards for power presses have, in spite of very great difficulties, now been so improved that the danger there is being more and more reduced. In the case of hydraulic presses, greater safety devices are always being introduced because of this very liability which falls upon the employer.
I suggest that there is only one safe course to adopt: the duties of the employer must be clearly specified. That must be done so that he shall know pre- 2195 cisely what are his duties and obligations. I agree, however, that in certain cases it may be proper to relieve him, but even there the nature of such relief must be clearly and precisely stated. If that is not done, and if there is a dispute or a case taken by a workman against his employer, the employer is encouraged to fight the case; whereas now, in most such cases, the employer usually settles them. The result of Clause 2 would be to produce a multiplicity of cases, each one of which would have to be decided upon its own facts. This would lead only to a multiplicity of actions and to considerable confusion.
I am accordingly pleased that Clause 2 is now to go, because it does away with what otherwise would have undoubtedly caused a standstill in the improvement in the safety of industrial machinery. My view is that, if an employer uses machinery which is dangerous, he must take the risk of the consequences of that danger; the onus should be upon him to eliminate the danger. For all these reasons, I congratulate the Government upon this excellent Measure, particularly for the abolition of that pernicious doctrine of common employment; and because they have withdrawn Clause 2, which I consider to have been a bad Clause. Finally, although I have criticised Clause 3, I feel sure that the Government will look at it again and make such modifications as the circumstances may seem to require.
§ 1.20 p.m.
§ Mr. Weitzman (Stoke Newington)
I desire to join in the chorus of approval and welcome of this Measure. It is a matter of solid satisfaction to feel that in a heavy programme the Government have found time for a Bill of this kind, especially when it is remembered that a similar Measure was put forward in 1893 by Mr. Asquith when he was Home Secretary. Ultimately, all lawyers have recognised the necessity for such a Bill as this, for the law as it stands undoubtedly causes great hardship and should be altered. I also welcome the decision of the Government to take steps to remove Clause 2 as it now is from the Bill.
My only excuse for venturing to take up any time of the House is because I desire to make a point of criticism in re- 2196 gard to Clause 3. I do not for a moment agree with my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), when he said that there was no necessity for that Clause. There is a clear necessity for a Clause of this kind. In the past there was workmen's compensation and it was necessary for the workman to elect which of the remedies he proposed to pursue. Now that workmen's compensation has gone, or will be going, quite obviously the courts will have to face the task of what are the things which should be taken into consideration in assessing damages. I should have thought that rather than have long discussions in the Courts and possibly conflicting decisions which may well do harm in many cases, it is a good thing that Parliament should declare in a Bill how the damages should be assessed.
I agree with the principle that we have set out here. Very careful thought was given to this by the members of the Monckton Committee. They, of course, recommended that benefits should be taken off in assessing damages. One can see a grave objection to that, because clearly the employee has at any rate paid five-twelfths of the contribution. On the other hand, the Government have taken the view, which they have put forward in this Bill, that a short, rough and rapid method of dealing with it is by saying, "We shall take 50 per cent. of the benefit for five years, and the judge or jury, in arriving at the verdict, should take that into account and deduct what they estimate should be this amount." I appreciate that it is a difficult matter, but this at any rate can be said of the view put forward in the Bill, that it does make for finality. I want to point out a number of difficulties which may arise. I recognise that the Attorney-General has said that this is a compromise, and all compromises must have points which can be attacked. I suggest that there are a number of points which should be looked at before the Government decide to adopt what is put forward in the Bill.
This Clause will be extremely difficult to apply. It says:There shall in assessing those damages be taken into account, against any loss of earnings or profits which has accrued or probably will accrue to the injured person from the injuries, one half of the value of any rights which have accrued or probably will accrue to him therefrom in respect of in- 2197 dustrial injury benefit, industrial disablement benefit or sickness benefit for the five years beginning with the time when the cause of action accrued.I read the words, because the mere reading of them shows the difficulty with which one has to contend. There is the case of a single person who is injured and who may marry but for whom the benefits may change in a short time during that period of five years. Supposing it is a married man with children, or even a single man who marries and subsequently has children, there will be changes during five years, and that shows what an extraordinary task faces the judge or jury when dealing'-with the problem of how best to estimate the benefit that has accrued or will accrue, and other factors of that kind which have to be taken into consideration.
Moreover, it may well be that Parliament in its wisdom may decide that the rate of benefit shall change. What are we going to do in regard to that? Surely, it shows that it will be very much a matter of real guesswork on the part of the judge or jury? Nevertheless, it is a flagrant case where a wrongdoer will get real benefit. It means, in a case where there are considerable injuries, that during the five years there will be a substantial sum by way of benefit, the estimated value of which sum is deducted from the amount the judge or jury may award, with the wrongdoer getting the benefit in regard to the payment.
I was very much attracted by the suggestions made by Mr. F. W. Beney, K.C., who was a member of the Monckton Committee, in his reservations. He is a leading member of the Bar who, I suppose, has as much experience as anyone of this kind of case. I respectfully suggest that his views are well worth looking at from the point of view of inserting something on the lines of his recommendations. What he suggested was that the whole sum in respect of compensation should be awarded against the wrongdoer. In other words, when the case is tried a judge or jury, in assessing the amount of damages, should arrive at what is a proper sum to be awarded for compensation—meaning by that special damages as well as general damages—and will take no note whatever of anything about insurance or disablement benefits. At a later stage when that verdict has been ascertained, the 2198 benefits made in respect of disablement or sickness will be taken off by the State. One agrees they should not deduct the whole amount. Quite obviously, that would be unfair to the worker.
If the Government take the view, in putting forward the Bill, that no regard should be had to these benefits, well and good, but if it is accepted that some deduction ought to be made because the workman has no right to receive, in addition to the whole amount, certain payments that he receives afterwards in respect of disablement, then I suggest a good way of doing it might be to say that for a period of five years following the accident he should be paid 50 per cent. of the benefit. I do not bind myself to these figures, but I suggest they should be looked at. In that way what is done is that, first of all, the judge and jury are not troubled with the question of deductions at all. I have pointed out how difficult that might be to assess the value of benefits to come. Secondly, the wrongdoer pays the whole of the amount of compensation for he is not relieved of any payment in any way because of the fact that there is State insurance. Thirdly, the State gets the benefit. In other words, the State saves something, because only a certain proportion of the benefits for a certain time are paid to the worker.
Fourthly, in addition to the amount of damages the workman is awarded, he gets a proportion agreed upon, for example, 50 per cent. of the benefit, for a period of five years or the lesser period of his disablement. When this point arises there is no difficulty whatever in regard to the assessment, and, therefore, no new complication in that way. It seems to me that the Clause as at present drafted is open to considerable objections on both, sides, any]. I would suggest that if this recommendation is looked at in that way it might enable some redrafting to be made which would satisfy to same extent the points which I have made.
There is one further comment I would add. The remedies effected by the Bill are sound and one, of course, welcomes them, but I am rather sorry to see that one of the points dealt with in the Monckton Committee has not been dealt with in the Bill. That was the alteration of the time limitation in regard to the proceedings brought under the Fatal Accidents Act and in regard to claims against 2199 public authorities. The recommendation made by the Monckton Committee was that instead of a year limitation there should be a limitation of three years. One knows there have been many hard cases where, because a year has elapsed, it has been impossible for the injured person to bring an action. I should have thought it might have been appropriate that some Clause should be drafted here altering the time limitation in the way suggested.
§ 1.31 p.m.
§ The Solicitor-General (Sir Frank Soskice)
This is a very short, but a very important Bill. It affects not only the workers in this country, but it also affects the pedestrian, the driver of a motor car and citizens at large. It deals with issues which I think are fully understood, not only by lawyers but also by laymen. It has been fully discussed during the course of the Debate today, and after the opening of my right hon. and learned Friend the Attorney-General I feel I can hardly assist the House by endeavouring to go over the ground which he has covered so amply in his exposition of the Bill. Accordingly, in my address to the House, I think I can most usefully confine myself to some of the few points which have emerged in the speeches of hon. Members.
I will not join in the chorus of disapproval of the doctrine of common employment which has been voiced on Clause I. I think everybody, judges included, have felt a lack of sympathy with the doctrine of common employment. Judges have to interpret the law as they find it, but they have had little sympathy with the spirit which underlies that doctrine. I will, therefore, pass from that Clause. Clause 2, again, is a Clause with which I feel I cannot usefully detain the House, having regard to the fact that, as has been said by my right hon. and learned Friend the Attorney-General, we propose at a later stage of the Bill to eliminate that Clause from its context.
I will accordingly go straight to Clause 3. I would like to say this at the outset; criticism has come from various quarters with regard to the deduction, and it is said, on the one hand, that there should be no deduction and, on the other hand, that deduction should be to the full extent of the benefit which would be awarded under the Act. By way of 2200 general observation on Clause 3 I would say that it is, after all, the first time that the injured workman has not been put to an election. In the old days he had to elect whether he would rely upon his remedy under the Workmen's Compensation Act or whether he would pursue his claim in common law. Supposing, in the uncertainty which must always attend a choice of that sort, he decided to rely on the common law remedy, he was thereby virtually in a position that, until his case had been brought before the court and the court had made the final decision, he could not draw compensation, or indeed any compensation which might be provided for him under the Workmen's Compensation Act. Weeks and months would go by and he would find himself entirely deprived of all sources of income. He would be able to get payment due to him only when the court which finally adjudicated on his claim had reached its final decision.
The most important change, to which attention has not been called during this Debate, is that this situation has been brought to an end. When the workman is injured his right to payments under the Act begins, and he receives those payments. He does not find himself with no income at all for a long period. He gets that amount of income, and, what the Act also proceeds to do is to provide machinery for determining how much is to be deducted in the damages he may finally be awarded in respect of the payment he receives under the Act. That is a radical departure from the past and it very greatly improves the situation of the injured worker. He is not put to that appallingly difficult choice as to which means of remedy he should elect, whether to risk the claim at common law knowing, if he does so, he must for months be without any sources of income, or whether to take the more certain path of relying on his rights under the Workmen's Compensation Act, foregoing what may well be a perfectly valid claim to substantially larger payments which he might recover at common law.
That is the general observation I wish to make and I venture to submit it is a consideration of very great importance in deciding the effect on the injured workmen's situation brought about by Clause 3. The question arises, should deduction be made or should it not? I feel I cannot usefully re-state tile arguments which have 2201 been advanced from either side on that particular aspect of the Bill; there are those who say the whole amount should be deducted and those who say none should be deducted. As my right hon. and learned Friend the Attorney-General told the House quite frankly, this is an endeavour to compromise between conflicting points of view. We hope it is a fair compromise, but no compromise can escape criticism.
It has been argued by the hon. and learned Member for Crewe (Mr. Scholefield Allen) that if one makes a deduction, at any rate one should not make a deduction where the claim of the injured person is brought not against the employer, but against some other person. I would reply to that criticism by pointing out that the National Insurance scheme is, after all, a scheme which covers the whole nation. It is not, as it were, a matter finally and exclusively between the workman and the employer. We all contribute and we are al] entitled to the benefit under the Act.
The view is taken, therefore, rightly or wrongly, in an endeavour to achieve a compromise which we recommend to the House, that one cannot really, logically and practically—and I would stress the word "practically"—draw a distinction between a claim against an employer and a claim against a third person. Once it is accepted that the argument in favour of a deduction is right to the extent that there should be at least a deduction of a half, it is really not feasible to draw lines of distinction between the two types of actions. Quite frankly, therefore, we have a compromise in the Act. We hope it will be found to work out fairly in the end. One of the points of that compromise is that deduction deals only with a period of five years from the date of the happening which causes the injury.
The hon. and learned Member for Chester (Mr. Nield) raised the question where although the Act says you may take account against any loss of earnings or profits half of the benefits received under the Act, nevertheless a judge and jury, in assessing general damages should bear in mind by way of diminution of those general damages the situation that the working out of the mathematical computation in Clause 3 would bring about the result that the injured person would 2202 receive, in his example, £1 more. The intention of the Act is that that excess should not be taken into account by way of diminishing the sum which is awarded by way of general damages. That is the object and intention of the Clause. Whether the language of the Clause is entirely appropriate to effect that purpose perhaps requires a little further consideration. Whether one should add some word like "otherwise" after the word "profits" is a matter which will have to be taken into account, and I will only say that I am grateful to the hon. and learned Member for having drawn our attention to that problem, which will have to be considered.
My hon. and learned Friend the Member for Crewe and my hon. Friend the Member for Stoke Newington (Mr. Weitzman) both raised the point that one could not be certain that a judge or a jury under the direction of a judge will arrive at anything like an accurate computation of the figure envisaged by Clause 3. The hon. Member for Stoke Newington said that, after all, the injured person may be married and he may have children, and as a result the benefits to which he becomes entitled under the Act may vary. They may become greater. The question is, what is to happen in cases like that? I would simply reply by saying that, after all, many judges, in directing themselves when assessing damages or directing juries in assessing damages, have had, and will have in the future, to decide problems infinitely more difficult than such an arithmetical problem. It is a problem. Undoubtedly, it is; but I would say that, after all, one cannot, in this assessing of damages, in evaluating the extent of injury of somebody, for example, run over in the street, go into too great nicety in an endeavour to arrive at complete and final accuracy in the matter. Judges and juries, over and over again, have had to do their best in the circumstances. They have had before them the circumstances affecting the life of an individual. They have had to say what, in terms of pounds, shillings and pence, is the loss and effect upon that particular head, and make an award to that injured person, and they have had—I do not want to say, to make a shot in the dark—but they have had to do the best that they could to arrive at a figure. That is what they have had to do in the past.
2203 As to the question of the limitation of the five years period, it would, no doubt, be infinitely more difficult for a judge or a judge and jury to perform that difficult computation if they had to consider benefits for the remainder of the life of the injured person. It will be easier for them to make that computation when they have a purview of five years from the date of the happening of the injury. Personally speaking, I hope and believe that there should not be any real difficulty in arriving at some satisfactory solution in all the circumstances. After all, there has not been any great difficulty in the past in that connection, and sums awarded by way of damage, I may confidently say, I think, have generally commanded the approval of the community, which follows with the greatest of interest the proceedings before our courts.
I should like to pass to a point made by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman). He called attention to Section 83 of the Act. He asked what is going to happen with regard to supplementary schemes which may be advanced under the terms of Section 83 of the Act? He raised the point on two footings, and one was the definition of the Section. I should have thought that definition there does not include benefits provided in a supplementary scheme of that sort. The problem, when it emerged, required most anxious thought. I would pass from that to say that I think it is premature to express a view about it, beyond saying that the matter will, perhaps, have to be looked at further from a drafting point of view. I should think that, as at present drafted, the terms of the Section would not cover benefits payable under such a supplementary scheme.
Really when one looks in retrospect over the points that have been made during the course of the Debate, I think I have covered most of them. The remainder of the points that were made by my hon. Friend the Member for Nelson and Colne come to the general issue 'of deduction or no deduction. I invite the House to agree with me when I say that I cannot assist the House by deploying the arguments already deployed in the report of the Committee which investigated the matter, and which have been lucidly restated by my right hon. and learned Friend.
2204 I would just 'mention one final suggestion made by my hon. Friend the Member for Stoke Newington, because it does touch—although he dealt with it as a matter of particular difficulty—in my view, a matter of wider principle. What he was suggesting in support of his argument was that difficulty might arise in the actual assessment of the damages by a judge or a judge and jury, and he put forward Mr. Beney's proposal to the effect that damages should be assessed, and thereafter, during the period of five years, he suggested tentatively, deductions might be made upon the benefit under the Act, when those benefits were actually paid to the injured person. Of course, Mr. Beney's suggestion, like all the other proposals put forward, was very carefully considered. I do not think that Mr. Beney's suggestion in that respect would greatly advance the purposes of this Bill. It is, I feel, in the interests of everybody concerned, particularly in the interests of the man who has been injured, who wants to know where he stands, that the computation should be assessed once and for all as far as the question of damages awarded by a judge or a judge and jury is concerned.
The wider principle is this. It is surely of the greatest importance that he should receive without deduction those benefits which the Act provides. He knows that, whatever else happens to him, whether he gets damages, whatever he gets by way of damages, and if he gets no damages, he can, at least, look forward to and rely upon receiving the benefits which the Act provides. He knows exactly what they are going to be, and that they are not subject to any diminution, and are not dependent on any calculation as far as he is concerned. As a member of the community, having paid his contributions, having sustained his injury, he knows quite clearly what is the position so far as the Act, at any rate, is concerned. I feel that that position is of great value to him. He will, therefore, know how he stands. His position may be greatly improved in the sense that he may have damages. But at least he knows the minimum of what he can weekly rely upon as coming into his home to enable him to support his wife and family. It is for that reason that I invite the House to accept the view that the suggestion made by Mr. Beney, and recommended by my hon. Friend the 2205 Member for Stoke Newington, should not be adopted. I do say that the matter is one which impinges upon the wider principle which underlies the whole of the National Insurance scheme. The injured person must, at least, know what he is entitled to as a minimum beyond which he cannot be expected to go. That is secured now by the terms of this Bill, and that principle would be impinged upon if Mr. Beney's suggestion were accepted.
For those reasons I ask the House to say that the Government were entirely right in the view they took in regard to that proposal, that it was not one that should be accepted. Having listened with the greatest sympathy to the speeches in the course of this Debate which echoed what I, personally, feel about this Bill, I do not think I can usefully take up the time of the House further in dealing with points that, no doubt, when the Bill goes before the Committee, will be further investigated. The House has thoroughly investigated the principle, and, I think, approves the principle, upon which this Bill is framed, and accordingly I hope will now be prepared to let it have its Second Reading.
§ Question put, and agreed to.
§ Bill read a Second time, and committed to a Standing Committee.