HC Deb 06 June 1957 vol 571 cc1551-64

Motion made, and Question proposed, That this House do now adjourn.— [Colonel J. H. Harrison.]

7.47 p.m.

Sir Jocelyn Lucas (Portsmouth, South)

I want to raise the case of a constituent of mine, a Mr. William Hume, a labourer employed by the Admiralty at Her Majesty's Dockyard, at Portsmouth, since 1945, who met with an injury in December, 1951.

He was assisting a Mr. David Madden, a skilled fitter, to remove some valves from a diesel tank in the boiler room on board H.M.S. "Relentless," which was situated in the dockyard. To reach the tank, they had to walk along a catwalk below decks in the boiler room. This catwalk was a metal grille, with no lighting underneath it, but with a light about 9 feet above the catwalk and on the other side of the tank, consisting of a 60-watt lamp with a glass cover. Although the lighting was rather dim, the two men were able to walk along the catwalk without much difficulty.

Mr. Hume and Mr. Madden began work on the job, and removed the valves which they took up to the deck to clean. Shortly after this, they returned to the tank, and, to reach it, followed the same route back along the catwalk. On the return journey, Mr. Hume walked ahead of Mr. Madden, although they were proceeding 'in the reverse order on the previous journey. It appears that while they were working on deck, another person had opened a section of the catwalk which formed a hatch cover, and which left an opening in the catwalk. Owing to the absence of lighting underneath, and perhaps the dim lighting on deck and the nature of the catwalk itself, it was not possible to see that the section had been removed, and Mr. Hume fell, feet first, a distance of 12 feet.

Mr. Hume fell heavily, knocked himself out, and was unconscious for a few minutes. He fell on his left heel and he struck his ribs. When he came round, he had aching pains in the small of his back and his legs felt weak. He has had this weakness and pain in varying degrees ever since. I should add that he reported sick straight away, and was sent to Haslar Hospital next day, and was there X-rayed. The pain then spread down both legs, and, after a month or so, he noticed that his thighs were wasting. He continued at work, although with continuous pain in his legs and back, but eventually he ceased work on 8th December, 1952, and then went absent for four mouths. Mr. Hume did not consult a solicitor at once. Like many young people, he did not realise what his rights were. If I may recall a personal incident, when I came home from the First World War, where I had been wounded and taken prisoner, I did not know, and nobody told me, although I was entitled to a pension, that I was entitled to have special shoes supplied to me by the Ministry of Pensions. The result was that for twenty years I had to buy my own, but now I have free Ministry of Pension shoes, which I am wearing now.

Mr. Hume did not see his Member of Parliament, in which case I hope that he would have received good advice, and he postponed seeing a solicitor until 1954. That consultation was about a claim for benefit under National Insurance. In October, 1954, he joined the Amalgamated Engineering Union and consulted W. H. Thompson's, his union's solicitors, on a private basis. A claim for damages against the employers was then made on 28th October, 1954, which was within the required three years. On 27th April, 1955, W. H. Thompson were advised by the Admiralty that the Admiralty considered that it had been prejudiced by the lapse of time and intended to rely on the defence afforded by the Limitation Act.

This Act laid down a time limit of twelve months in which proceedings could be commenced against a Government Department, but in June, 1954, the Statute was amended to extend the time limit to three years. It is quite clear, however, that the twelve months' time limit had expired before a claim for damage was made, but not the later time limit of three years. On 2nd May, 1955, after the Admiralty had denied liability on the grounds that it had been prejudiced by the delay, Mr. Hume's solicitors offered to furnish the Admiralty with all the information in their possession dealing with the medical aspects and circumstances of the accident, but this offer was not accepted.

I subsequently raised the matter in the House after I had had an interview with two Ministers, at which I was accompanied by Mr. Clifford, of Messrs. Thompson. The Minister's main ground for refusing to consider any payment appeared to be that the delay had severely prejudiced the employers in two respects. They were unable to obtain reliable evidence of the circumstances of the accident—which we can produce—and it was impossible to determine, after the delay, whether or not Mr. Hume's injuries at that time were the cause of his present illness.

On 19th December, 1956, I asked a Question and I received the following reply from the then Civil Lord, my hon. Friend the Member for Dorset, West (Mr. Wingfield Digby): As my hon. Friend is aware from correspondence which has passed between us, it has not been possible to establish that Mr. Hume's present disablement is due to the accident which took place five years ago; this is because of Mr. Hume's failure to represent his case for nearly three years. For the same reason, it has been extremely difficult to arrive at the true facts of the accident itself, though enough is known to show that the catwalk was not unlighted at the time. I am afraid that it is no longer possible at this distance of time to consider any question of compensation."—[OFFCTAL REPORT, 19th December, 1956; Vol. 562, c. 181.] We are asking that we should have permission to raise a civil action before a High Court judge under common law for damages and that the Admiralty will not stand behind the three-year limit.

The Minister has had the benefit of the independent evidence of the skilled fitter, Mr. Madden, who was following Mr. Hume when he fell through the hole. I have a copy of Mr. Madden's evidence in my possession at this moment. He states quite clearly that had he been preceding, instead of following, Mr. Hume he would have fallen in the same way. A detailed statement has been shown to the Admiralty, of which I imagine it has a copy, and it is understood that an Admiralty representative also interviewed Mr. Madden. There was also available at the hospital which Mr. Hume attended full case records, notes, X-ray plates and reports of his treatment and condition, right from the time when he first attended the hospital in 1952.

I have a letter from his father, stating that Mr. Hume has also had to attend two London hospitals. The doctors who treated him took the view that although the diagnosis has been difficult it must be concluded that the muscle wasting and weakness are the direct results of the accident. Sir Hugh Griffiths has recently examined Mr. Hume on behalf of Mr. Hume's solicitors, and he also supports the view that his disability is entirely due to the accident.

All the medical and other evidence at the disposal of Mr. Hume's solicitors can be made available to the Minister, and it is felt that this evidence is sufficient to overcome any prejudice. The medical board which examined Mr. Hume on 18th February, 1957, decided that there was no loss of faculty resulting from the accident, despite the fact that up to February, 1957, he had been receiving a 40 per cent. disability pension from the Ministry. An earlier board had made an assessment of 50 per cent. in April, 1953. This award was referred to a medical appeal tribunal, which decided that Mr. Hume's disability was relevant to the accident. On this basis, Mr. Hume has now appealed and, naturally, we hope that on this evidence his appeal will succeed.

Whether or not the appeal succeeds, the main point is that if the Admiralty allows Mr. Hume to pursue the matter under common law, justice can prevail. If Mr. Hume loses his case, well and good, but at least he will get justice, unless, of course, it should prove unnecessary for him to pursue the case in the event of the Admiralty being prepared to make him an ex gratiaoffer. There is ample evidence to show that Mr. Hume was in good health before the accident. Up to the outbreak of war he was an assistant golf professional at Portsmouth. He is now suffering from a serious disability, although entitled to be employed by the Admiralty on light work.

Mr. Hume's solicitors took the view that they would have had no hesitation in advising proceedings in this case had not the time limit expired before Mr. Hume sought legal advice. Such proceedings would have been based on allegations of an unsafe system of work, failure to provide a safe means of access, and negligence on the part of fellow employees in removing the catwalk section and failing to take any precautions to post someone at the opening or to replace the section or light it. All these things seem to show that it was not Mr. Hume's fault.

It should be borne in mind that at the time of Mr. Hume's accident, in 1951, the injured workman, although limited by statute to a period of twelve months in which to commence proceedings against a Government Department was able, if employed by a private employer, to begin proceedings within six years of an accident. This anomaly has now been rectified by legislation, and there is a period of three years in both cases. If the Admiralty feels that it cannot accept the evidence, all we ask is that it at least gives permission for an action at common law before a High Court judge.

8.0 p.m.

The Civil Lord of the Admiralty (Mr. T. G. D. Galbraith)

I first want to congratulate my hon. Friend the Member for Portsmouth, South (Sir J. Lucas) upon the pertinacity with which he has pursued this case. The debate this evening is only the climax of a long series of letters, questions and interviews which he has conducted on behalf of his constituent with the most meticulous care. His persistence and energy deserve the highest praise. I would also like to thank him for the reasonable manner in which he has dealt with the case. It is impossible for anyone to hear the story, as he has described it, without having a great deal of sympathy with Mr. Hume in his sufferings.

There are, however, two separate aspects of the case. First, there is Mr. Hume's claim to go on being paid industrial injuries disablement benefit. In this connection, it is simply a question of Mr. Hume being able to satisfy the medical appeal tribunal that the disability from which he is suffering was attributable to the accident which he sustained in H.M.S. "Relentless" in 1951. That is one aspect. The second aspect is Mr. Hume's desire to sue the Admiralty for damages for negligence. In order to succeed in this it is necessary to show not only that his present medical condition is due to the accident, but also that the accident was caused by some negligence or breach of duty on the part of the Admiralty or on the part of the Admiralty's employees.

I am afraid that I cannot say very much about the first aspect of the case. That is not only because it falls within the province of my right hon. Friend the Minister of Pensions and National Insurance, but also because Mr. Hume has appealed to the medical appeal tribunal against the findings of the reassessment board and the matter in this respect is, therefore, sub judice.

The question that the tribunal has to decide is precisely whether or not there is any connection between Mr. Hume's present condition and the accident. Even if he were to succeed in satisfying the tribunal, and even if he could satisfy the courts that there is a connection between the accident and his disability, that would be a long way from proving that the accident was the fault of the Admiralty.

The facts are, as my hon. Friend says, that the accident occurred in December, 1951. After the accident, Mr. Hume merely reported to the chargeman and to the dockyard surgery that he had slipped while going through the hatchway on his way down the ladder. He did not complain in any way about the state of the hatchway, about the state of the ladder or about the state of the lighting, and that seems very odd in view of what has subsequently transpired. Furthermore, as my hon. Friend stated, Mr. Hume continued to work for about a year, and it was not until 8th December, 1952, that he was placed on the sick list. Another delay then occurred until October, 1954, when eventually Mr. Hume made a claim against the Admiralty.

To begin with, it was thought that there had been no witnesses to the accident, but in the early part of 1955 a Mr. Madden came forward, who had been engaged in the same operation as Mr. Hume. He stated that Mr. Hume had preceded him down the boiler room hatch and had fallen through an open grating, and he also stated that the lighting was normal at that time.

Apart from this statement by Mr. Madden, the Admiralty has been unable to confirm whether the grating was open or, indeed, whether the grating had anything to do with the accident. I should point out that if the grating were open it would be a hazard which should be not unfamiliar to workmen accustomed to working on ships undergoing refit. But. in fact, the evidence either one way or the other is extremely scanty, and this leads me to another aspect of the case to which my hon. Friend referred, and that is that the claim is time-barred.

At the time when the accident occurred the Law Reform (Limitation of Actions) Act, 1954, had not yet been passed. At that time, claims against the Crown made more than twelve months after the date of the cause of action were time-barred under the Limitation Act, 1939. This technical bar was often waived when sufficient evidence was available to enable a claim to be considered on its merits, but it was not waived—and I want to emphasise this point—in cases where, owing to the lapse of time, the Department was prejudiced in its defence by not being able to obtain evidence from people who would have been able to give evidence if the claim had been made earlier.

The 1954 Act, to which I have referred, extended the period from twelve months to three years, and in that period of three years proceedings must have started, though my hon. Friend seemed to think that as long as a claim had been made, that was sufficient. The object of the 1954 Act was to make sure that claimants had ample time in which to make their claims. That is why it was extended. However, it was also limited to ensure that claims would be made within a reasonable period so that evidence could be checked. This is really the crux of the matter. I am sorry to have to harp on legal technicalities, but they seem to me to be important in this case, whether one looks at it from the point of view of the 1939 Act or of the 1954 Act.

The only evidence of negligence is that of Mr. Hume himself and of Mr. Madden, whose evidence is different now from what it was originally with regard to the lighting. I do not think that the Admiralty can be expected to accept these statements without question, and because of the delay which has occurred in making the claim the opportunity for the Admiralty to test these statements has long since passed. In fact, a claim made so long after the events have taken place is not fair to the defendant, and it was for that reason that the 1954 Act was passed.

I am sure that my hon. Friend will realise that if it was hard to check the meagre evidence in 1954. it is even more difficult now. I can assure him that the Admiralty sympathises most deeply with Mr. Hume in his loss of earning capacity as well as in the personal suffering which he has had to endure. We should like to be able to help him, but I am afraid that the delay has been so great that the evidence is not sufficiently definite to justify the Admiralty in waiving either the 1939 Act or the 1954 Act.

I am sorry that I cannot give a reply which will satisfy my hon. Friend and his constituent. I am sure, however, that though what I have said may appear harsh, the reply which I have given is the only one which can properly be made in the circumstances of this case.

8.8 p.m.

Mr. G. A. Pargiter (Southall)

I was hoping that it would not be necessary for me to intervene in this discussion, and I very much regret the reply on this matter which makes it necessary for me to do so because of its unsatisfactory nature.

I am speaking on behalf of the union of which this man is now a member. Had he been a member at the time of the accident, there would have been no question of the Admiralty deciding whether it was liable or not. The matter would have been fought out in the courts, and it would have been settled. As far as evidence is available, it shows that the Admiralty has not much of a case.

If the Admiralty had a good case, it appears to me that it would have been willing to go to the courts. The fact that it cannot get the evidence now would appear to be the reason why it is using the Statute of Limitations. The claim for damages was made against the employer on 28th April, 1954. Six months later the solicitors were advised by the Admiralty that nothing could be done about this because it was out of time. But the Admiralty took six months to put up this excuse so, whatever the time, the Admiralty added six months to it. That does not commend itself to me, and the argument used by the Admiralty is the kind of argument we would expect from the worst employers in the country. Good employers do not use the Statute of Limitations except in cases where there is a very gross breach of the law.

The Admiralty suggests that there is some doubt whether Mr. Madden made one statement or another. It should let it be decided in the courts. That is all we are asking. It is not a question of whether the evidence is good, bad or indifferent. All we ask is that a High Court judge shall decide whether the evidence is good or bad. The Admiralty sets itself above that and says that it will not give a judge an opportunity to determine whether or not Mr. Hume has a case. It pleads the Statute of Limitations; not the new Statute but the 1939 Statute, which has a limit of one year.

Mr. Galbraith

The hon. Gentleman is inaccurate in that respect. Whichever Statute is invoked, the claim came too late. It is laid down that proceedings have to be started in a court of law within three years. The proceedings in question had not started within the three-year period.

Mr. Pargiter

That is open to very considerable doubt. The accident occurred on 13th December, 1951. The Admiralty played about with it for six months before it gave a decision pleading the Statute of Limitations. It appears that the submission of the claim to the Admiralty was well within the period of three years. The suggestion that it was outside the three-year period arose because of delay caused by the Admiralty. Consequently, any fault in respect of a period is on the side of the Admiralty and not Mr. Hume or his solicitors.

It is said that there was an original fault on the part of Mr. Hume in that he did not make the claim at the beginning. As I have said, if he had been a member of the union then, such a claim would have been made. The rules in relation to these things are fairly well known. I am convinced that there are people in the Admiralty who know that they are on fairly weak ground in this case.

I am not at the moment so much concerned whether the case is for or against Hume. I am more concerned with the fact that the Admiralty has no right to be judge and jury in its own case and to plead the Statute of Limitations in order to be in that position. I would say that the Admiralty is probably a little more difficult about waiving the Statute of Limitations than some other Departments, but I will not deal with that now. The hon. Gentleman said that in certain circumstances the Admiralty would waive it. In this case it says it has been prejudiced in obtaining evidence because of the delay in the submission of the claim. It can plead that before a judge. It can put up whatever case it likes against the evidence which is submitted. If it wishes to say that Mr. Madden has made two different statements and wants counsel to cross-examine him, it is open to it to have that done, and then a judge will have to decide the facts of the case.

This is a most disgraceful misuse of power on the part of the Admiralty. We are not at this stage claiming that Hume may have any claim at all. Anything to do with the question of the claim for damages remains to be settled quite apart from anything which happens in regard to his industrial injuries claim against the Ministry of Pensions and National Insurance, for that is a separate issue. It might well be that the tribunal would turn him down and that a judge, on the evidence presented in respect of the claim for damages, would award him the case, or vice versa. It does not follow that one is tied to the other.

In spite of what the hon. Gentleman said in order to get round the issue, this is a case where the Admiralty is behaving in the traditions of the worst employers by pleading the Statute of Limitations. Why was the Statute altered? It was because it was recognised to be unfair that Government Departments should be in a favoured position by having a one-year period for the submission of a claim as against six years in respect of a claim against a private person or employer.

The House decided that the law in that respect was bad, and altered it. It decided that there was no logical reason why a Government Department should be in a different position from a private employer. It altered the period in both cases to three years. The Admiralty now wants to go back before that, saying that at the time the accident happened the Statute provided that if the claim was not made within one year there was no liability on the Department.

I should have thought that the last thing the Admiralty would wish in such a case would be to appear to be doing less than justice. We are not asking for more than justice. There is only one way in which justice will appear to have been done in this case, and it will not be achieved by the Admiralty hiding behind the Statute of Limitation. It can only be done if the Admiralty says, "We do not accept that the case which has been made is correct or that the facts stated are necessarily correct, but will let a judge decide". That is all we are asking for.

Mr. Galbraith

If I might reply to the points raised by the hon. Member for Southall (Mr. Pargiter), the claim was not referred to the Admiralty until 1954 but a reply was sent by the Admiralty before the end of the year. That is one point upon which the hon. Member seems to have been wrongly informed.

Mr. Pargiter

The relevant date is surely 27th April, 1955. Was not that the date upon which Messrs. W. H. Thompson were advised by the Admiralty that it considered that it had been prejudiced by the lapse of time and that it intended to rely upon the defence afforded by the Statute of Limitations?

Mr. Galbraith

The advice that I have is that the Admiralty replied before the end of 1954.

Mr. Pargiter

Could we be told the date of the reply?

Mr. Galbraith

I am afraid I have not that information with me. The claim was nearly two years out of time under the arrangements which were in force under the 1939 Act. Contrary to the hon. Gentleman's impression, it was also out of date under the 1954 Act, under which proceedings—it is not merely a question of an intimation that a claim is pending—must have begun within the stated period. So that under both Acts—

Mr. Pargiter

The case is full of technicalities, but not full of justice.

Mr. Galbraith

I will come to the justice in a minute. I am merely trying to deal with one or two points as we go along. Another point which the hon. Member made was that this is a technicality. He asked, why should we not let a high court judge decide the question? But what question? The law now says that after three years there is no question. The hon. Member is being most unreasonable. If he or anybody else had suffered an accident and thought that the lighting was not proper or that there was a trap of some sort, he would have complained long before that period. I know that I would have complained, and I think that the hon. Member would have complained if he thought that there was any ground for complaint. In fact, this long period was allowed to elapse and Parliament deliberately passed this Act—

Mr. Pargiterrose

Mr. Galbraith

If I am to be interrupted the whole time, it will be very difficult to develop an argument. I will give way later.

Parliament deliberately passed this Act in order to help claimants, but equally in order not to prejudice Departments, because, obviously, if there is no limit, a man who is injured can wait such a long time that it is impossible to produce proof to refute the case that he is trying to put forward. There will always be instances, even if the period is six years and if the case is presented after seven years, in which the hon. Member may-say that the Admiralty is being grossly unfair.

We should abide by the legislation produced as recently as 1954 fixing the period at three years. I can assure the hon. Member that if there were any way of checking the evidence, the Admiralty would be only too delighted to do so to help Mr. Hume. But, in fact, there is none. If this case is accepted, there is no proof that other cases of the same sort will not be brought, and that would clearly not be in the best public interest.

Mr. Pargiter

It is perfectly clear that this man did not make a claim at the right time. He had no one to advise him. He joined a trade union and was then asked from what he was suffering and what were the facts. As soon as the facts were known, the matter was placed in the hands of reputable solicitors who immediately proceeded with all due diligence. I am prepared to agree that ignorance is not a defence in law, but we do not expect that rule to be rigidly applied to a fitter's mate who is an unskilled worker. There are many cases which ought to go to common law, and which do not go because of ignorance, but the fact that he was advised late to submit his claim— and I am prepared to admit that—is surely not one on which the Admiralty wants to rely.

Mr. Galbraith

It is not that the Admiralty wants to rely on this Act, but there comes a time when it is ridiculous for an appeal to be made, and I submit that that time had come when Mr. Hume made his appeal. As I have said, if instead of being three years the period had been six years, I can still imagine the hon. Member making exactly the same speech and saying how unreasonable the Admiralty was. There comes a time when it is quite impossible to check evidence. Mr. Hume's evidence was altered in the course of proceedings in the court. Mr. Madden said one thing at one time and another later. At one time he was going down the ladder and the next moment he was going up. Those are possibly details, but they show that, when a long period has passed, it is extremely difficult to find the facts.

It is for that reason, not because the Admiralty is hard-hearted or does not want to help Mr. Hume, but simply because it is impossible at this distance from the time the accident took place to substantiate any of the facts which Mr. Hume wishes to prove, that, I am extremely sorry to say, I must adhere to the decision which has been given already.

Mr. Pargiter

Has this reached a quite impossible stage?

Mr. Galbraith

I am sorry to have to inform the hon. Member that that is the case.

Mr. Pargiter

I can only hope that some way will be found to deal with it.

Question put and agreed to.

Adjourned accordingly at twenty-four minutes past Eight o'clock.