§ Order for Second Reading read.
§ Mr. Speaker
Before the debates of the day begin. I have a request to put to the House. I imagine that any division of opinion will cut across party lines. It will help the Chair if those hon. Members who wish to speak and who have not indicated their attitude to either of the Bills will do so so that I may arrange balanced debates.
§ 11.15 a.m.
§ Mr. Hugh D. Brown (Glasgow, Provan)
I beg to move, That the Bill be now read a Second time.
I suppose that to win a prize in a raffle requires luck. Certainly to win first prize in the Ballot for Private Members' Bills is considered good fortune indeed. Perhaps, Mr. Speaker, if you are ever invited to make the draw for "Ernie", you will be good enough to let me know in advance. I thought that it was all a matter of good fortune until I realised that the popularity which I had acquired on the day of the Ballot waned on each succeeding day as I weeded out the representations which had been made to me by various organisations and by hon. Members on both sides.
As I thought about the matter, I realised that I was disappointing to the Press. I could almost feel sorry for the newspapers when I told them that I had no revolutionary Bill up my sleeve which would involve the House in controversy for many long months. I am sure that they were disappointed. Nevertheless, I confess that I was tempted to think of a propaganda exercise for the nationalisation of land, insurance or the drink trade, or to do something about the menace of cigarette smoking—I say that as a smoker—or one or other such more interesting causes. However, for a variety of reasons, I plumped for a purpose which I thought was useful, though modest, and, as has been said, lacking in imagination. Even though it may not find mention in the future text books of Parliament, I believe that this Bill will be an important piece of law reform, or, more accurately perhaps, social legislation.
1967 I am indebted to my hon. Friend the Member for Loughborough (Mr. Cronin), who, unfortunately, cannot be with us today. In the last Session he introduced a similar Bill which obtained a Second Reading without a Division, though I agree that that was due to, so to speak, the unfortunate procedures of the House. However, it had a fairly full debate in Committee on 3rd July, on which occasion a Second Reading debate, in effect, took place. To that extent, therefore, the aims and objects of the Bill are fairly well known to those who are interested. In a sense, that is not particularly flattering to me, because I doubt that I can improve on the contributions made by supporters of the Bill at that time in Committee. Nevertheless, I shall give the reasons why I consider that the Bill should have the support of the House. If I make any mistakes or omissions on legal matters, I see that I have plenty of hon. Friends here who will be ready to correct me in matters of legal phraseology.
The need for the Bill arises because the present law is that, when an employee suffers a personal injury and that injury is caused by defective equipment, the employer has a good defence in law enabling him to opt out of liability if he can show, as may well be the normal case, that the equipment was bought in good faith from a reputable supplier and there was no reasonable means of finding out that it was defective. No one suggests that the need for the Bill arises because there are unscrupulous employers who deliberately seek to avoid liability. It is just that that is how the law stands.
However, it was not always so. The law was changed by a case in 1959—I shall not go into detail since most hon. Members will be familiar with it—and it is the judgment in that case given in another place which gives rise to the need for the Bill which I am presenting. It made it almost obligatory for the employee to attempt to find and sue the manufacturer, which is a difficult thing to do. That is the mischief that must be remedied.
The reason for difficulty should be obvious. First, the supplier might not be found, which is not as remote a pos- 1968 sibility as one might think, for there is no legal necessity for the employer to state where he obtained the equipment. It might not happen very often, but it could happen. Second, it is possible that the supplier, by a contractual arrangement, may have limited or excluded his liability. This is a technical, legal point. Third, the supplier might be dead, and it might not be possible for further claims to be made against his estate. He might be a bankrupt or in liquidation; he might be a man of straw. Most important, he might be a foreign manufacturer, which would present extreme difficulties both in pursuing the claim and in the plaintiff's attracting legal aid.
For all those reasons, it is much more difficult than I should like for damages to be obtained in respect of such an employee who suffers personal injury, which can result in disablement or death. It is extraordinarily difficult for the person who has an accident, through no fault of his own, to get restitution for the degree of disablement he suffers. That is the need for the Bill. I have no intention of over-dramatising the need. Hon. Members who have read the OFFICIAL REPORT of the Committee debate will know of the extreme case, which had been brought to the attention of my hon. Friend the Member for Loughborough by my hon. Friend the Member for Kings Lynn (Mr. Derek Page), of an agricultural worker who was killed by an automatic scarecrow device which exploded. Although I cannot confirm this, I understand that a settlement has been reached in that case, I think with the British supplier of what was a Belgian article. But it has taken about five years for the settlement to be reached, and hardship must have been caused to the widow and family through its taking so long. The case illustrates the difficulty of the present position.
What is the support for the change? Hon. Members will agree that it is understandable if I start with the Scottish Trades Union Congress. I am sure that my legal friends will be able to point out the successful operation of the Scottish law until the change was made by the other place. The Secretary of the Scottish Trades Union Congress wrote to me:I have noted with pleasure the content of your Private Member's Bill, which will prove 1969 a constructive contribution to the ability of trade unionists"—and, of course, non-trade unionists—to obtain recompense for damages received due to defective equipment.One of the members of the General Council, who is the Scottish officer of a national union in the steel trade, says:Under the present law the workman in such a case has to seek his remedy against the supplier or manufacturer. The present law is unsatisfactory and puts an unfair onus on the workman. It is quite obvious that an employer is in a much better position than his workman to proceed against a supplier or manufacturer. He may be presumed to have both the resources and the technical knowledge to permit him to do so. The point is an important one as you will appreciate if you consider the case of equipment purchased abroad or, indeed if you consider the case of a workman injured in Scotland through the use of equipment purchased in England.This happens occasionally.The unfortunate workman has either to raise his action abroad or in England: very often so far as he is concerned an impossibility, and, at the best, a matter of difficulty.I know the gentleman who wrote that, and he did not write it on behalf of the Scottish Nationalist Party.
The T.U.C. made representations on the need to amend the law in the way I suggest as far back as 1966, and several unions urged that the law should be amended to deal with this point. The general trend of the argument was the same, that it would shift the onus of recovering the damages from the workman to his employer, and that such a change in the law should not materially increase the employers insurance liability.
There are one or two other items of support. The National Union of Mineworkers did not even think it necessary to consult its area offices, because it recognised immediately the benefit and wisdom of this modest Measure. I am a very reasonable man—on occasion too reasonable I am told—and therefore I appreciate that there may be some criticism of the Bill and objections to it. I can clear up one point which was raised in Committee. The Bill does not apply to equipment in the household where there is a part-time cleaner or domestic.
§ Sir Edward Brown (Bath)
What about the position of a gardener in the domestic employ of a man of moderate means 1970 who is digging when part of his fork breaks off, because of defective material, and pierces part of his body? Is the hon. Gentleman saying that the Bill would not apply to such a case?
§ Mr. Peter Archer (Rowley Regis and Tipton)
Would not the possible answer be that the Bill applies to equipment provided by the employer for the purposes of the employer's business, and would not apply in this case unless the employer runs the garden for business?
§ Mr. Brown
That is the point I was making. In that case there would be a more normal relationship of employer to employee. However, I am very reasonable and I want hon. Members' co-operation, and if there are any doubts on that score it is obviously a matter for the Committee.
Probably the most important objection or criticism is on vicarious liability. I am not a lawyer, and I always assure myself that that is a tremendous advantage. I look at the question simply from the point of view of what appears to be reasonable. No matter what the argument and no matter what difficulties might be presented for the legal profession, employers or anyone else, the present position is unreasonable. If two workers are working side by side and one suffers the loss of an eye because of the negligence of his fellow worker, who is perhaps larking about with a chisel—they are still used even in this technological age—the injured man will have a claim against the employer.
But if the honest, upright, careful worker using his own chisel suffered a similar accident through no fault of his own or the employer, but through a defect of the chisel, it would be most difficult for him to obtain the same justice in law as he could have obtained if it had been caused by the negligence of a fellow worker. As I say, I do not care what the legal objection is. It strikes me as an untenable position for anybody to take up. With all modesty, I think that the Bill might remove that kind of injustice and illogicality.
§ Mr. Ian Percival (Southport)
I am trying to follow the hon. Gentleman's argument and trying to keep it on the basis of reasonableness and not the law. We shall have to deal with the legal side later. If his proposition is right that it would be unreasonable in one of the cases that he mentioned and reasonable on the other, must he not follow the argument a little further? What is the logic of saying that an employer is liable if he is in business as a nurseryman but not liable if the man is just doing his garden?
§ Mr. Brown
I do not follow that. I am still working in the factory where chisels are used. I thought we had left the garden. The difference is in the relationship. If this is new legal phraseology I cannot help it. It seems to me that the degree of responsibility that one man has to another depends on the contractual relationship of the employer to the employee. I cannot make it any clearer than that.
§ Mr. Percival
If I employ a man to do my garden I employ him under a contract, and if I am a nurseryman and employ a man to work with a shovel I employ him under a contract. I am trying to test the hon. Gentleman's arguments on reasonableness rather than the law. If I am working with a shovel and it breaks because of a defect, what difference does it make from my point of view whether my employer is a private owner employing me to do his garden or a nurseryman engaged in business? From the point of view of the injured person, what is the logic of the hon. Gentleman's argument?
§ Mr. Speaker
Order. Interventions should be reasonably brief. I do not want the hon. and learned Member for Southport (Mr. Percival) to exhaust his right to speak in the debate.
§ Mr. Brown
I take the point that has been made. I can see that there might be some difficulty over the definition. The important thing is the degree of supervision that the hon. and learned Gentleman would have in relation to his gardener. This is something that can be looked at. I do not think it would alter my main argument.
§ Mr. Gordon Oakes (Bolton, West)
If the hon. and learned Member for Southport (Mr. Percival) wishes to extend the 1972 Bill in Committee to domestic accidents, I am certain that my hon. Friend the Member for Glasgow, Provan (Mr. Hugh D. Brown), as a reasonable man, would not object.
§ Mr. Brown
I would rather that my hon. Friend the Member for Bolton, West (Mr. Oakes) did not provoke me into following that. Seriously, I think we have to accept the broad principle that an employer is already liable to provide a safe place in which to work and a safe system of working. Therefore, this is not a revolutionary Bill, nor is it a new principle.
§ Mr. Charles Doughty (Surrey, East)
That is not the employer's duty. His duty is to take reasonable steps. He has no absolute liability except in very exceptional cases.
§ Mr. Brown
I think that the use of the word "reasonable" is implicit in the sense that the employer already has to take reasonable steps. Already there is a liability to provide a safe place in which to work and a safe system of working. Therefore, I think that what I am proposing is an extension of that liability. It is not the creation of a new liability. It is a transference, and this seems reasonable.
A final argument against the Bill might be that we should not tinker around with industrial safety or industrial insurance from the point of view of the possibility of claims arising from industrial accidents, that we should not make alterations in a minor manner but should wait for some more fundamental reform or an examination of some of the other examples in respect of which no doubt a case could be made for enlarging the issue. I am always tempted by that line of reasoning. Nevertheless, I am prepared on this occasion to settle for the minimum advance with the maximum amount of support, and I am sure that that will be forthcoming.
I suggest that the Bill makes a minor contribution—this is all I claim for it—to industrial relations. I should have thought that when one person can satisfy another that he is taking on a new or additional responsibility, however minor, for his welfare, it would in a minor way create an opportunity for an improvement in industrial relations.
1973 Having regard to the fact that the relationships between the Government and the trade union movement are slightly strained because of the prices and incomes policy—I must confess that I am a supporter of a prices and incomes policy—I should have thought that the Bill would commend itself to my hon. Friends and the Government. The thought that comes to my mind is why the Government cannot find ways and means to bring forward legislation like this that would commend itself to the majority of trade unionists and hon. Members.
Finally, the Bill gives us an opportunity to demonstrate our thought for our fellow men who are less able to secure their rights and justice than others. It is socially desirable, and I think it is legally possible. It may be modest, but I think it is a significant enough Measure for all of us to be able to look back without regret and with a certain degree of pride to the fact that we supported it.
§ 11.37 a.m.
§ Sir Edward Brown (Bath)
I would like to congratulate the hon. Member for Glasgow. Provan (Mr. Hugh D. Brown) on making the best of a bad case. We on this side of the House have some sympathy with his aspiration, a Bill to protect and give a right to a workman who has been injured in the course of his employment.
However, with respect, this should have been a Bill produced by the Government, or it should have been indicated by the Government that they would give it whole-hearted support. This did lot happen on the first occasion when the Bill was presented, although the Solicitor-General spoke and indicated that there was some interest in the Bill.
I think it is right to say that the Bill represents a fundamental change in a principle of law. I am not a lawyer, but as a trade unionist of many years' standing, I have had to deal with the law, and I know that the law has been both favourable and unfavourable. One of the cardinal principles of English justice has been that a man is innocent until he has been proved guilty. But the Preamble to the Bill provides that, although an employer may be innocent, 1974 he shall be deemed to be guilty by virtue of the Bill. That is an alteration in the law which hon. Members on both sides of the House should totally reject.
§ Mr. Donald Dewar (Aberdeen, South)
Would the hon. Gentleman be in favour of the widespread repeal of Sections of the Factories Acts?
§ Sir E. Brown
I was going to mention, in particular, that that is a consideration, but it does not aim in this direction. The Bill merely lays upon a person who happens to be an employer a liability for which he is not responsible. The Factories Acts cover it in a different way.
It is a cardinal principle of our law that a man is innocent until he is proved guilty. The first thing that I find wrong with the Bill is that it says that somebody is guilty although he may be known to be innocent. When he intervenes the Solicitor-General should give us some indication of what the Government's thoughts are in this direction.
Turning now to the Bill, clearly there is a humane reason in the hon. Gentleman's mind in presenting it. He wants to rectify what he thinks is a wrong. However, has he stopped to consider the dam which is about to burst? Once this Measure becomes law, that is what will happen.
Let us consider for a moment the position of women and girls in factories and workshops up and down the country. At the moment, there is the widespread scourge of dermatitis. The causes are unknown. Many reasons are advanced for it. If a woman working in a factory goes to her employer and says, "I have dermatitis on my hands", once this Measure becomes law, it covers such a case. However, the dermatitis may not have arisen in that factory. It may have happened in her kitchen sink. However, this Bill would enable her to say to her employer that she had caught it in his factory.
§ Mr. Simon Mahon (Bootle)
In a case of that sort, would not there be expert medical advice called in to establish where the damage was done?
§ Sir E. Brown
That is a point, but I am really saying that this Bill would release such a dam. At the moment, many women have dermatitis on their 1975 hands which is not being medically treated because they have not been near their doctors. If this Bill became law, they would be able to make claims against their employers. This is a point which could be examined in Committee——
§ Mr. Hugh D. Brown
I hesitate to interrupt the hon. Gentleman and I am sure that he is not trying to mislead the House, but if a woman with dermatitis tries to claim that it arises from industrial conditions—in other words, if she claims that it is an industrial disease—that would have to be proved before she could claim from her employer. I can assure him that it is very difficult to establish a claim in respect of an industrial disease without a thorough examination at the highest professional level to establish where it has arisen.
§ Sir E. Brown
I concede that point. Clearly there would be an investigation. But such would be the throng of cases coming before whichever medical body had to study this question, inevitably some would get through its examination with this Bill behind them.
§ Mr. Archer
Can the hon. Gentleman say on how many occasions he has come across an instance of industrial dermatitis arising from defective equipment?
§ Sir E. Brown
I cannot say that I have found industrial dermatitis coming from defective equipment, but the Bill opens the door to it. It will have to be amended in some way, otherwise, adopting the case of the gardener in domestic employment and the gardener working for a nurseryman, it will cover an accident where a nurseryman's gardener injures himself with a defective fork, but not the case of a similar accident involving a gardener working for a domestic employer. If the Bill becomes law, there will be pressure to bring in this sector, too, otherwise there is an injustice.
I do not oppose the Measure in that sense. I am trying to discover how we can get round such a situation and put it right. If the Bill goes to Committee, it may be that that will be one of the amendments which will have to be made. It will be interesting to see if the learned Solicitor-General can give the House an indication of how far the Bill will go. 1976 The courts will have a multiplicity of cases arising from it, and I think that the present form of words is not the right one to cover the situation.
If we are to have a Bill at all, let us have one which is just to both sides. Let us not remove an inequity from one side only to land it on the other. It must be fair in all its concepts. I am sure that the hon. Member for Provan will agree with that. Let us now depart from the great British principle that a man is innocent until he is proved guilty. If the Bill goes to Committee, I hope that we shall be able to make it a better one than it is at present.
§ 11.45 a.m.
§ Mr. Peter Archer (Rowley Regis and Tipton)
As a mere Sassenach, let me pay at least this tribute to my hon. Friend the Member for Glasgow, Provan (Mr. Hugh D. Brown). This is not the first occasion on which law reform in this country has owed a great deal to initiative from North of the Tweed. I believe that this Bill will go down in history as a significant example. But, though it may be a little ungracious to say so, it is a pity that my hon. Friend's initiative was necessary. There was a very informative debate on this issue in Standing Committee last Session. Unfortunately, time did not permit the matter to go further. I never cease to be puzzled about the way that this House deals with the problem of lack of time by debating matters twice.
I listened carefully to the remarks of the hon. Member for Bath (Sir E. Brown). As I understand it, the essence of his argument is that it is unjust to impose a liability where there is no fault. However, perhaps he will concede that it is slightly confusing to speak of finding someone guilty when he has not been proved guilty. Guilt is a concept of the criminal law. The issue before us today is where, in fairness, the burden of accidental damage should fall.
It is true that the common law has traditionally adopted the principle that liability for accidental damage ought not to be imposed upon someone who was not by his fault responsible for the damage. That was a principle which the common law could adopt without great injustice at a time when all that a person expected from his neighbour was that he would not actively injure him, 1977 when the principle of government could be summed up in the expression "laissez faire", and when what was expected from the law was the erection of a stockade round those who had no complaints with the existing position.
Even so, it was not felt that the common law should apply that principle without exception. In dealing with liability for the escape of dangerous things, for example, the ruling under Rylands v. Fletcher, the common law recognised that there were occasions, when that principle could not be applied too rigidly. In the present day, when industrial life is much more complicated and when we believe more and more that every man is part of the human race, I do not think that the principle can be applied without very substantial reservations. There must be other very important questions asked before we seek to decide every situation by reference to that principle.
The first question which should be asked is: whose decision was it which gave rise to the accidental damage? I would have thought that, as between the employer, who selected the supplier, entered into a contract with him, specified the requirements as to safety and design, and could return the equipment as being unsatisfactory if it did not comply with the specification, and the employee who merely had to take what he was given and get on with the job, responsibility should rest on the employer.
§ Mr. Archer
The Bill applies only to a situation where the defect is attributable wholly or partly to the fault of a third party. If there is no fault on the part of anyone and no inspection could have predicted what would happen, the Bill does not apply.
§ Mr. Archer
The hon. Gentleman says that it does, but he will see from Clause 1(1)(b) that it does not.
§ Mr. Emlyn Hooson (Montgomery)
I have considerable sympathy with his argument, but the hon. Gentleman said that if the fault is not discoverable by inspection, no one is liable, but there may be a fault by a third party which is not discoverable by inspection.
§ Mr. Archer
I was using this only as one example. I said if inspection or otherwise could not have avoided the accident. Bad machining, of course, could give rise to the accident. I am greatly obliged to the hon. and learned Gentleman for pointing that out.
Before I proceed with this argument, wonder whether, at the risk of being judged by my legal colleagues to be rather tedious, I might interject an explanation for the benefit of some of my non-legal friends. We have been discussing whether the loss should lie where it falls, which was the general principle of the common law in this situation, or whether the loss should rest upon the employer.
This may puzzle hon. Members who are not lawyers, because the loss we are talking about is, of course, personal injury, and, whatever the decision of the House or the orders of the courts, a personal injury must inevitably rest where it falls. Nothing we can enact in legislation and no order which any court can make can restore a hand which has been amputated, or breathe life into a dead husband or father.
In this sense, what we are discussing is whether someone who inevitably has suffered from a misfortune, which possibly could not easily have been avoided, should claim that part of his burden is borne by someone else who had an interest in the operation which they were jointly undertaking, and whose decision led to the situation which caused the accident. It may be well worth reminding ourselves that what we are doing here is not suggesting that an employer should bear the whole of the burden of an unfortunate accident instead of the employee.
To return to the argument, I believe it to be fair that accidental loss should fall upon those particularly within whose power it was to bring about that situation, or who might be a different decision have brought about a different situation, rather than upon someone who was simply swept along by a current over which he had no control.
The second question which it is relevant to ask before we apply the principle as rigidly as the hon. Member for Bath would like is who can more easily 1979 recover his loss from the real wrongdoer. The employer will almost certainly have a remedy under his contract and it he does not, he cannot complain, because it was he who made the contract. The employee, if he has any remedy, is likely to have it against only the manufacturer. In special circumstances, he may have it against someone else, but almost invariably it will be only against the manufacturer, if he can show that the defect arose from negligence by the manufacturer. But he has to trace the manufacturer.
He can begin by asking the employer where he got the equipment and if the employer is reasonable, he will tell him. But there are employers who simply do not answer letters, or who say, "I will not prejudice anybody's position in this matter" and who will not say where they got the equipment. In that case, all the employee can do is to institute proceedings compelling the employer to adopt as a defence the Davie v. New Merton Board Mills defence, that he obtained it from a reputable supplier, and the employee can then compel the employer to disclose the name of the supplier. But this means that the employee has to institute litigation to which he knows there is a good defence, and which is almost certain to be unsuccessful, merely to discover where he goes next in his quest for the person against whom he has a cause of action.
Supposing the employer is co-operative and discloses the name of the supplier, the employee goes to the supplier who may say, "Yes, but I did not make it; I am not the manufacturer." And so the employee is condemned to an almost detective-like quest to hunt down, if he can, the person whose responsibility really occasioned the chain of events which led to the accident. If he is fortunate enough at every stage to secure the co-operation of the next person in the chain he might in due course find himself with a remedy.
§ Mr. Gordon Oakes (Bolton, West)
Is not the position even worse than that if it is a foreign manufacturer and the defect arises in manufacture, because the tortious act then takes place abroad and the employee just could not take proceedings in the English courts for that act?
§ Mr. Archer
Without going into technical details at the risk of being found rather tedious by the House, I am not sure that I wholly assent to that proposition, but I certainly accept that if it is a foreign supplier, the difficulties may accumulate until they become virtually insuperable for the litigant.
§ Mr. Ian Percival (Southall)
I think that the hon. Member for Bolton, West (Mr. Oakes) is wrong in saying that the tort is committed abroad. The tort is complete only when the injury is suffered in England. The difficulty is in suing the manufacturer abroad, which we would all accept as a great difficulty, but let us get the difficulty in the right place.
§ Mr. Archer
I was anxious not to engage in what might become a lawyer's technical argument, but I entirely agree with that explanation. The tort would be committed in this country, but there would be the question of service out of the jurisdiction, and execution out of the jurisdiction, and all sorts of other difficulties.
I should like to cite an example which came to my attention recently. An employee was injured when a piece of heavy equipment was being lifted by means of chains and tackle. This was attached to a hook at the top of the equipment, which was fitted during the manufacture. The hook broke, and subsequent examination disclosed that it broke because it had been badly machined, but that no reasonable intervening inspection could have brought that to anyone's attention.
The employee's union instructed solicitors, and the solicitors wrote to the employers, who said that it was not their responsibility and that they bought the equipment from reputable manufacturers. On being pressed, they disclosed the name of the manufacturers. The solicitors then wrote to the manufacturers, who said that, while it was true that they manufactured the equipment, they did not manufacture the hook. They said that they simply bought the book and fitted it to the equipment, and that the accident was not their fault.
The manufacturers were then asked where they got the hook and they gave the name of the suppliers. The solicitors wrote to the suppliers, who said that in the first place they did not admit that they 1981 supplied the hook, that hundreds of people supplied hooks of that pattern, and that if the solicitors wanted to make them liable they would have to prove that they supplied it. So the employee was condemned to litigation which depended on the co-operation of people who did not know him and who had no incentive to go out of their way to help him.
But the suppliers went one stage further. They said that even if they supplied the hook, they did not make it, and when the solicitors wrote again, and asked who did, the suppliers said that they were not sure, and that, even if they were, they would not tell the solicitors. So the employee was in the position of having no recourse against anyone.
It is an important principle that an employer, who is in the best position to recoup his loss against someone, who can himself recoup his loss against someone else, setting the chain of claims in motion, should bear the loss, rather than the employee, who may find himself at a dead end.
The third and final question which is relevant is which of the two parties may mote easily protect himself against the loss. I would have thought that the answer to that question was fairly obvious. It is much more likely that the employer can at very small cost include this kind of cover in his insurance policy than that the employee should think beforehand and be expected to protect himself by insurance against industrial accident. Of course, if every employee took legal advice before he had his accident, a number of our problems would be eliminated, but employees do not do so.
All these principles, in addition to the principle that the loss should fall only upon those whose negligence brought it about, are applicable in this day and age, and if in addition the effect of the Bill is that, in ordering equipment, an employer is just a little more careful in choosing his supplier, just a little more insistent on safety aspects in addition to matters like cost and delivery dates and design, the Bill will have placed us even more deeply in the debt of my hon. Friend the Member for Provan.
§ 12 noon.
§ Mr. Charles Doughty (Surrey, East)
I rise to pass a few remarks about the Bill, mostly of criticism. In saying that, I do not want the hon. Member for Glasgow, Provan (Mr. Hugh D. Brown) to think that I am opposed to his Bill, and that I would, in the event of a Division, go into the Lobby against it. I would not. Although the Bill may not revolutionise the whole law of master and servant, such matters are generally and particularly dealt with by the government of the day.
It would be wrong of me to go through the history of the Factory Acts and regulations passed, but, so far as I am aware, they have always been passed by the Government of the day, generally after consultation with the interested parties. In discussing the Bill, and perhaps passing it into law, we are breaking at any rate, that up till now undisturbed tradition. For that reason, I believe that this matter if it is to be dealt with should be dealt with by the Government of the day.
The second point is purely a drafting one which can be dealt with in Committee. It is in line 12, which says that… the injury shall be deemed to be attributable to negligence on the part of the employer.There may be an absolute liability imposed upon him. That is the phrase which should be used. One cannot deem that a person is guilty of a fault which he has not committed. That is only a drafting point, but it should be put right, in fairness to those who may be made liable under the Bill.
One or two hon. Members have referred to particular cases. One sometimes hears someone saying that a person is knocked down by a bus one day, and another person by a bus in the same road on another day. The first person gets a lot of money and the other one nothing. That is an appeal to sympathy. If one is to change the law, then change it, but not upon grounds that someone may be affected by sympathy and another may not. Hard cases make bad law.
No one has so far mentioned what are the rights of an employee. Someone who has suffered injury, the loss of an eye through a piece of steel going into it had rights against this employer under the 1983 Workmen's Compensation Acts. I am probably in a minority of one, but I believe that it was a mistake to bring to an end those laws. Now they are replaced by the Industrial Injuries Act. Workmen who suffer injury, of course, get industrial benefit. It is quite wrong to say that he would get nothing, whether or not his employer was liable, if he had bought the machine from a reputable supplier. That has not so far been mentioned, but we ought to bear it in mind.
The law has always been that one cannot bring an action for damages unless there is some fault on the part of an employer. The Bill is a clear and distinct breach of that. It may be, rightly, pointed out that there are already exceptions to this rule, to be found in the various regulations under the Factories Acts. However, such regulations apply only to particularly dangerous trades, such as builders working on scaffolding. As far as I know, in cases of the ordinary workman working under ordinary circumstances, no breach of the principle has so far been made until this Bill.
It may be that the employer is in a better position to obtain contribution than the employee. That does not seem to be a very good reason for breaching the law. It might be that we should pass a law, and I would support this, that there shall be an obligation upon an employer to disclose all information upon proper request, as to the supply of his equipment, date of supply and other relevant details. The Bill goes a great deal further, a great deal beyond that. The position of an employer in law is perfectly clear. Admittedly, it is discussed in the courts every day, but it has been sufficiently defined in Acts and in judgments for us to know what is the relationship between the two parties. On the whole, the balance is very much in favour of the employee, and rightly so. There is a very strong duty put upon employers, and the courts are quick to enforce this and to award damages against employers.
If we take the case which is the foundation of this Bill, the man who got a sliver of steel in his eye, through no fault of his own, how can his employer be said to be liable? Someone in the manufacturer's company had over-hardened 1984 the tool that he was using. It was not the fault of the employer, but the employee who made the tool, and put the responsibility upon his employers. How can one say that the employer was at fault because of a defect caused by an employee of another company which could not be found by him through inspection? How can it be said that he is liable to pay damages because of this fault? That is what the Bill of the hon. Member for Provan is saying.
There might be a Government Bill to say that injuries suffered during the course of work are the liability of the employer. I would disagree with that. The Government have taken over the liability for accidents in the Industrial Injuries Act. We should maintain the common law, as it is maintained in the Factories Acts and the regulations made under them, extend them and vary them where necessary. I look with some suspicion upon this change in the law brought in by a Private Member's Bill.
Of course, I know that there is a great deal of sympathy for a man injured at work, but it does not necessarily follow that he should be automatically entitled to receive sums of money from someone, even though it may be that—and if they are sensible, this will be the case—they are insured against such risks. Nor do I think that the insurance premiums will be increased very much. However, one must remember that increases in insurance means increases in costs, which mean increases in prices. Increased prices mean increased unemployment, because goods cannot be sold.
To a small degree, I am not saying that it is overwhelming in this case, but it is a matter one has to bear in mind, this is putting a further burden upon employers, or to be more accurate upon their insurance companies who quote the premiums.
I have not risen to oppose the Bill root and branch, but only to point out a few facts that hon. Members ought to bear in mind when considering the pros and cons of the Bill, and the effects that it will have. I feel we should say that, in principle, we support the Bill, but we are looking to the Government to do this, if it is necessary to do this type of work, and not for it to be done through the efforts of a private Member, supported by the majority of a few hon. Members 1985 in the House of Commons who are present on a Friday morning. I am sure that hon. Members will bear in mind what I have said.
§ 12.10 p.m.
§ The Solicitor-General (Sir Arthur Irvine)
I intervene at this stage because it has been suggested that it might be helpful if I were to explain how I regard the legal significance of the Bill.
I should like, first, warmly to congratulate my hon. Friend the Member for Glasgow, Provan (Mr. Hugh D. Brown) on his taking up this Session a Measure which was approved in principle by the Government last Session and which made some progress when introduced by my hon. Friend the Member for Loughborough (Mr. Cronin). I thank my hon. Friend for his clear explanation of the purposes of the Bill. At one point he said that if he made any errors in matters affecting the law they could be put right by lawyers who spoke subsequently. I listened with great care lest such an event should take place. I saw no sign of error in my hon. Friend's case, and I thought that he put the matter forward most ably, persuasively and accurately.
The Government's attitude to the Bill is one of approval because we feel that it will give a fairer deal to workmen who sustain the type of personal injury suffered by the workman in the case of Davie v. New Merton Board Mills. We see the Bill as providing for a rational and sensible extension of the principle of vicarious liability. We think that if the employer is liable to the employee for negligent acts committed by a fellow servant, it is hardly logical that he should not be liable to the employee for the consequences of a defect in equipment which he has given to the servant to use.
I realise the importance of the change in the law proposed by the Bill, but I do not see it as constituting—and it is a matter of degree and judgment—a major change in the established doctrine of negligence and vicarious liability. I would rather see it as a small but none the less extremely worthwhile Measure to enable an injured employee to obtain compensation in circumstances in which, but for the Bill, he might have real difficulty in doing so.
1986 Reference has been made to the position of an employee seeking to recover damages from a foreign supplier or from a supplier whom the employer does not co-operate in identifying. These are real, practical difficulties. I noticed in the reasoned and persuasive speech of the hon. and learned Member for Surrey, East (Mr. Doughty) his readiness to consider favourably legislation which, in the circumstances advocated, put the employer under compulsion to disclose the appropriate information. The hon. and learned Gentleman referred to the question of who is the supplier and the character of any contractual relationship he had with the client. I should have thought that what the hon. and learned Gentleman said made some concession to the wider remedy which my hon. Friend recommends.
There is great force in what was said by my hon. Friend the Member for Rowley Regis and Tipton (Mr. Archer). He stated that a relevant question to ask was: Who of several parties was in a better position to recoup his loss and could more easily protect himself against the relevant risk? All these factors taken separately, and especially when considered in the aggregate, amount to important grounds for thinking that on balance the proposals in the Bill deserve the support of the House. That is the Government's approach to the Bill.
The hon. and learned Member for Southport (Mr. Percival) mentioned the case of a gardener working for an employer—a private servant. The expression used in the Bill is… defect in equipment provided by his employer for the purposes of the employer's business".The phrase "employer's business" has a limiting and restrictive effect. In my view, it excludes the contract between a man who possesses a garden and his gardener. If it were desired to pursue the course of logic which appeared to be recommended by the hon. and learned Member for Southport, that would be a Committee point. But as the Bill is drafted it has this more limited effect, and it may be thought that it is the better for that because if one makes a change of this importance there is everything to be said for altering the situation step by step.
1987 The hon. Member for Bath (Sir E. Brown) referred to this as a fundamental change in the law. I think that I have dealt with that point. We do not regard it is as such. The hon. Gentleman said that here was an example of a basic principle being contravened—that a man was innocent until found guilty. As the hon. Gentleman will be the first to appreciate, that is calling in aid the language of the criminal law in a matter which is concerned with civil liability. I do not think that it can be regarded as a fundamental change of law to make this provision for a small extension of vicarious liability in the context of the existing state of the law which enables a workman to sue his employer when he suffers personal injury as a consequence of the negligence of a fellow employee.
In the master and servant relationship the common law has always held the master to be under an obligation to take reasonable care for his servant's safety. This obligation was restated in the light of modern industrial conditions by the House of Lords in 1938 in Wilson's and Clyde Coal Company v. English. The duty is a threefold one, to provide a competent staff of men—and I agree with the hon. and learned Member for Surrey, East that this duty is always subject to the concept of reasonableness—to provide proper plant and appliances, and to provide a safe system of work. In the Bill the House is concerned with the second of those duties.
It is perhaps pertinent to point out that the Davie case did nothing to abrogate the duty of the employer in that respect. It merely said that that duty was discharged by the employer if he bought a tool from a reputable source, and had no means of discovering a latent defect. The Bill will take away this defence from the employer, but it will preserve any right of action which he may have against the supplier or manufacturer of the tool. An incidental and valuable effect of the Bill may be to encourage employers to be careful about the source of supply and manufacture of their equipment.
It has been suggested that a Bill implementing changes in the law affecting such an important matter as this should properly come from a body such as the Law Commission, or the Law Reform 1988 Committee, or, alternatively, as the result of the recommendations of an official investigation. It has further been said that a Bill of this kind should come before the House as a Government Bill. There is a good deal to be said for that point of view, but it would be unfortunate if the fact that we have the advantage from time to time of receiving proposals for law reform from official bodies were to be regarded as in any way invalidating or discouraging independent exercises in law reform, such as that by my hon. Friend in the Bill.
It is true that this proposal comes forward without a recommendation in terms from the Law Commission, without a report from the Law Reform Committee, and as a Private Member's Bill, but, with respect to my hon. Friend, I venture to say that it is none the worse for that. It is a Bill of comparatively small scope, but of considerable interest and importance, and I recommend it to the House as a Bill representing, on balance, a change for the better. That is why the Government lend their support to it, and are grateful to my hon. Friend.
§ 12.24 p.m.
§ Mr. Philip Holland (Carlton)
I assure the Solicitor-General that I should never seek to argue against the rights of a back-bench Member to use the facilities offered by the Standing Orders of the House to the maximum to promote any Private Member's Bill within his scope. Like the hon. Member for Glasgow, Provan (Mr. Hugh D. Brown), I am not a lawyer, and my reasoning is, therefore, that of a layman with industrial experience.
The debate so far appears to have centred round two main issues arising from matters of principle and a number of smaller points about the application of the Bill and the definition of certain words in it. I should like to address myself, first, to what I regard as the two main issues.
The principal objective of the Bill, as I understand it, and as the Solicitor-General implied, is the distinctly humanitarian one of trying to weight the law in favour of those least able to cope with misfortune. This was the first point made by the hon. Member for Provan when he opened the debate. For that objective there is sincere and general approval on both sides of the House. I use the term 1989 "both sides" in the sense of those on either s de who may be in favour of the Bill, and those on either side who may be in any way opposed to parts of it.
I accept that there is a problem here, and that the Bill is an honest attempt to deal with it. In expressing misgivings about the nature of the provisions of the Bill, in voicing criticisms, and in making suggestions for amendment, hon. Members are attempting to define more precisely the nature of the problem, and to evolve a method of solving it without creating a new and glaring injustice.
That brings me to the second main issue, to which attention was first drawn by my hon. Friend the Member for Bath (Sir E. Brown), which is that the Bill seeks to make an employer liable for damages in circumstances where he, his agents and servants are all entirely innocent, and cannot in law be held to be in any way responsible for the latent defect in equipment complained of. Unlike the Solicitor-General, I regard this as a major extension of vicarous liability rather than a minor one.
I have always found it comparatively easy to understand, and approve, the aims and objectives of Pym, Hampden, and their colleagues in 1640–41, when they sought to preserve the hard-won rights and privileges of Parliament by trying- to remove the threat to those rights posed by the appointment of the Earl of Strafford to re-establish a much more centralised monarchical system. I find it much more difficult to justify the passing of a Bill of Attainder which declared Strafford guilty of treason by Act of Parliament, although his innocence had been proved during his three weeks' trial in Westminster Hall.
§ Mr. Speaker
Order. This is fascinating, but we cannot discuss the execution of Strafford, or the method by which Parliament tried him. It is obsolete, anyhow.
§ Mr. Holland
I was trying to make the point that the principle of declaring a person guilty by Act of Parliament tends to creep in from time to time into other Bills laid before the House.
The principle crept in to the Race Relations Bill in the last Session, but, thanks to the vigilance of my right hon. and learned Friend the Member for 1990 Huntingdonshire (Sir D. Renton), and hon. Members on both sides of the House, and thanks, also, to the good sense of the Government, it was not enshrined in that Act. Curiously enough, the elimination of the injustice towards the employer in the Race Relations Bill took place exactly one week after we had a discussion in Committee on the Bill introduced by the hon. Member for Loughborough (Mr. Cronin), couched in similar terms to this.
§ Mr. Archer
Would not the hon. Gentleman's point be met completely if the wordsthe injury shall be deemed to be attributable to negligence on the part of the employerwere eliminated, and the words, "the employer shall be liable" were substituted? Is there any more to it than that?
§ Mr. Holland
I shall explain what I regard as a better method than that. I am not opposing the Bill. I would add that the Attorney-General might take a leaf out of the book of his hon. Friend the Under-Secretary of State for the Home Department, who dealt with the Race Relations Bill in the last Session, and advise his hon. Friend the Member for Provan accordingly.
To decide how best to improve the Bill—and this is where I come to the point raised by the hon. Member for Rowley Regis and Tipton (Mr. Archer)—so that its humanitarian objective can be achieved without introducing what I regard as the objectionable procedure of finding an innocent man liable for something for which he is in no way responsible simply because he happens to be the most convenient bystander to accuse, we must examine the various possible reasons for introducing a change in the law and thereby define more precisely the need and the aim.
Concern has been expressed about the foreign supplier. As I understand, the only difficulty arises because legal aid is not available if the foreign supplier cannot be sued in the British courts. Therefore, legal aid is not available. In other words, it is more difficult to reach the foreign supplier if his residence is abroad and the whole of his business is abroad; he cannot be sued in our courts.
Surely, this is much more a matter of a change in social policy, and for 1991 making provision of this kind in the social policy system of social insurance, or for an extension of the legal aid system, rather than having a radical change in the law relating to vicarious liability.
We have heard something about the supplier who is a man of straw. I am not a lawyer, but as I understand, a man of straw is not a reputable supplier in the first place.
§ Mr. Holland
He may have been. I will come to that in a moment.
But if he is a man of straw in the first place he is not a reputable supplier, and, therefore, the employer is liable anyway under the law. If, subsequent to the purchase of the equipment, the supplier becomes financially shaky, and presumably that means he would be likely to be a man of straw, nevertheless I should have thought that, as a reputable supplier prior to this, he would have insured against liability for action for damages, and I should have thought that, if he had not done so, he would not have been regarded as a reputable supplier, anyway. I am happy to leave this, not being a lawyer, to hon. and learned Gentlemen to argue about, but that is my understanding of it as a layman.
The hon. Member for Provan suggested that a supplier may have a clause in his contract which excludes liability. This is so, but I imagine that this would only apply to the employer who was the customer. The clause in the contract could not apply to this kind of case where it is the employer suing for damages against someone responsible for a latent defect. Therefore, I do not think that situation affects the need or otherwise for this Bill.
It has been suggested that one of the main purposes of the Bill is to reverse the decision made in another place in 1959 in the case of Davie v. New Merton Board Mills. In that case, Mr. Davie having successfully sued the manufacturer, who was culpable, was trying to obtain also damages from his employer who was not culpable. I do not think 1992 anyone wants to change the law so that claims for damages successfully pursued against a culpable party may then be duplicated against an innocent party. In any case, Davie v. New Merton Board Mills is not a good example to be taken in support of any change in the law since Mr. Davie had a perfectly good judgment against the manufacturer for damages and it was enforceable. Therefore he did not need this Bill.
In fact, doubt is passed on whether there are any legal cases which justify this change, but this is not to say that, because we have no legal precedents, therefore there is no reason for a change in the law. I would assure the House that I would be the last to accept that kind of argument.
Generally speaking, if an employee seeks to obtain damages against the supplier of defective equipment who is at fault he usually finds his employer cooperative in supplying all the information necessary for him to initiate action against the manufacturer, but I can envisage circumstances in which it would be desirable to weight the law more heavily on the side of the employee who has suffered injury as a result of a latent defect in equipment. I have to tell my hon. and learned Friends that I cannot quote factual cases in support of my arguments, but from my own industrial experience I can well understand that in cases where there is a bad or inefficient employer it might well be that the action by an employee might be obstructed or retarded or made more costly.
I understand that, to avoid an action for damages under the law as it stands today, an employer must prove that equipment was purchased from a reputable supplier. If he cannot prove this he is liable anyway. On the other hand—and this is an argument in support of the Bill—if he is a very ignorant or stupid employer he may not disclose the supply information until unnecessary expense has been incurred, which might not, in certain circumstances, be recoverable.
Second, it may be, particularly with small items of equipment such as hammers, screwdrivers, chisels, that he may always buy these items from a number of reputable suppliers, but cannot identify from his records from which of several 1993 reputable suppliers he purchased the hammer or what it was which had the latent defect in it.
Third, he may simply have no adequate record of the supply of the equipment.
§ Mr. Simon Mahon
In a case like that could not an expert metallurgist examine the metal used? Would not that ass stance be sought by any responsible trade union? Then it would be found, by a chemical or metallurgical expert, that the faulty chisel, for instance, was made of metal belonging to such and such a supplier?
§ Mr. Holland
I should not like to drift away into the realms of forensic science, but I imagine that it might be difficult to decide between a number of suppliers who might all have used the same metal and, to a degree, a similar process of tempering of tools. It might be extremely difficult, I should have thought, through that process to ascertain who was in law the supplier.
I should have thought that in these three possible circumstances I have set out there is a point of substance which merits a change in the law relating to vicarious liability, but not to the full extent of the change embodied in the Bill. I should like to suggest that this change and these circumstances might be adequate y dealt with by making the employer responsible for providing full details of the supply of the equipment, and, in default of this, whether by reason of unwillingness or of inefficiency or of inability, or any reason at all, to do so, then he should become liable for damages sustained as a result of injury due to the discovery of a latent defect in the piece of equipment.
It seems to me that this modification, which does not detract from the purpose of the Bill, would be a much more natural extension of vicarious liability than the Bill offers at present, and I hope that my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) would approve at least of that kind of extension in the law of vicarious liability. It would cover the three cases I have mentioned arid it would cover the case described by the hon. Member for Rowley Regis and Tipton at some length, where there was great difficulty in proving the actual manufacturer of the hook who was responsible.
§ Mr. Weitzman
Would it cover the case where the manufacturer is bankrupt or is a company in liquidation or has no means or had entered into a contract of limited liability?
§ Mr. Holland
In any case, that is a legal hazard, surely, today, and would be a hazard if one were suing one's employer. I should like to leave that to my hon. and learned Friends to argue about, because it seems to me that this is a legal quibble rather than a genuine argument for or against the basis of the Bill.
The suggestion which I have made will meet the objective and the principle of the Bill, whilst removing the principle found objectionable by some hon. Members of purporting to declare an innocent person guilty simply by reason of his geographical position, in that he happens to be conveniently situated to be accused.
This is an honest attempt to meet a real objection. We do not wish to endanger the principal objective, and we have tried to evolve a form of modification, which could conveniently be done at a later stage, to obviate the objectionable aspect while retaining the main purpose of the Bill, which is to facilitate legal action by an injured employee against a culpable party.
There are a number of detailed Amendments which I hope may be acceptable in Committee. I should like to see a more legally definable term used in the drafting of the Bill than the word "equipment". The more I consider the matter the greater is my sympathy for the hon. Members who have been responsible for drafting, since I am unable to suggest an alternative which would exactly meet the requirements. One alternative which has been suggested to me is the phrase "plant and machinery" which has received legal consideration, but I do not feel that this phrase is sufficiently wide in scope to cover certain office appliances, protective clothing and industrial boots. There are other matters of detail which would be more relevant in Committee and I do not wish, on Second Reading, to get involved in Committee points.
I ask the hon. Member for Provan and his hon. Friends before Committee to consider suggestions made by hon. Members in this debate not only with a view to improving the Bill, but also as a means 1995 of enabling hon. Members on both sides of the question, rather than on both sides of the House, to work together to achieve the speedy passage of the Bill.
§ 12.43 p.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
The hon. Member for Carlton (Mr. Holland) has suggested, quite properly, that we should consider all suggestions made on the other side of the House. The hon. Member for Bath (Sir E. Brown) suggested that the Bill did not have the wholehearted support of the Government. My hon. and learned Friend the Solicitor-General has adequately dealt with that. We must remember that, had it not been for the fact that all stages of the Bill were not completed last Session, the Bill might well by now have been on the Statute Book.
Criticism has been made that it is a Measure that ought to have been brought in by the Government, that there ought to have been regulations making alterations, or that reform ought to have been commended by trade unions or the Law Reform Committee. I resent that criticism. Private Members have the right to bring in Bills enacting reforms, and I respectfully suggest that this is a typical example of a benefit that can be conferred by a Private Member's Bill. The Bill does not make a fundamental change in the law; it makes a real change I agree, such a change as can be brought about by a Private Member's Bill, and I think that my hon. Friend has rendered a service by bringing in the Bill.
As the law stands, it is the duty of an employer to take reasonable care to provide reasonably safe tools for his employees. In view of the criticism made on the other side, I have taken those words from a judgment in the House of Lords. In the Scottish case of Donnely v. Glasgow Corporation, 1953, the court decided that the employer could not shift the blame on to the manufacturer; but in Daviev. New Merton Board Mills, 1959, the House of Lords overruled that decision and held that the employer had discharged his duty to take reasonable care by showing that he had bought the tool from a reputable source and that he had no means of discovering the latent defect. My hon. Friend, with true 1996 patriotic zeal, would restore the effect of the Scottish judgment. He goes a little further; he makes it clear by the Bill that the employer is responsible for a latent defect.
My hon. Friend has rendered a service in endeavouring to achieve this reform. The case of Daviev. New Merton Board Mills, which alters the Scottish decision well illustrates the need for this Measure. There was a defective hammer, a piece fell off which struck the plaintiff's left eye and destroyed its sight. The plaintiff was awarded £2,030 damages against both the employer and the manufacturer. He failed in his appeal against the employer because the employer was able to show that the tool had been negligently manufactured by reputable manufacturers, who sold it to a reputable firm of suppliers who, in turn, sold it to the employers, and that the employer's system of maintenance and inspection was not at fault. It was said by the hon. Gentleman the Member for Carlton (Mr. Holland) that in that case the workman was able to obtain his damages from the manufacturers, but this may not always be the case.
Reference has been made to instances which I wish to emphasise because of the criticism made by the hon. Member for Carlton. The hon. Gentleman suggested as a remedy that the employer should be called upon in law to give the name of the manufacturer, and if for any reason he failed to give that name he would then be liable.
§ Mr. Holland
The point I was trying to make was that, if the employer failed to provide the full co-operation required to enable the employee to sue the culpable party, then he has neglected to do something, and in this sense it is a better extension of the law of vicarious liability than if, without him failing to do anything. he is still sued for damages.
§ Mr. Weitzman
I do not understand what is meant by full co-operation. Does it mean merely giving the name and address of the manufacturer? Does it mean that he has to assist by giving the details of the purchase made?
§ Mr. Holland
I am sorry to interrupt the hon. and learned Gentleman again, but I think that he is twisting it slightly. The words I used were that he would give 1997 the necessary information to enable the employee to sue the culpable manufacturer.
§ Mr. Weitzman
Then I think, with respect to the hon. Gentleman, that I have stated the position correctly. If it is suggested that the employer is prepared to give the necessary information to enable the workman to sue the manufacturer, then in that case he can sue the manufacturer. If he fails to do it then the employer is liable because of his neglect to provide that information.
§ Mr. Weitzman
Let me examine that proposition. I am assuming that the employer co-operates and provides the full information. The manufacturer may be a man of straw, a company in liquidation, or bankrupt, or in a foreign country. All the objections that have been made in detail to that position still hold good. If he is in a foreign country the objection that it may be difficult to bring a claim because of the difficulties of obtaining legal aid is clearly a formidable objection. If it is a company in liquidation, or an individual who has become bankrupt, or there is a contract limiting liability, the difficulty is there. The proposition put forward by the hon. Member does not help in any way.
A workman is placed in a very difficult position if he has to sue his employer, and possibly join with the employer the manufacturer, in obtaining the information from particulars or interrogatories the name of the manufacturer, because the employer is under no obligation to give it unless it is obtained in that way. The difficulty which arises in a case of that kind is that the workman brings his action against both. In the course of the action he obtains the information, the name of the manufacturer, and then has to discontinue the proceedings and he is liable in costs. I have already indicated the difficulty which arises in cases of liquidation, of bankruptcy and of limited contracts. Although the hon. Member referred to these matters, they are very real objections which cannot be brushed aside in the way he attempted.
I come to the main objection that has been put against the provisions of the Bill. It is said against the proposed 1998 change in our law that it is inequitable to place a further burden on the employer, a burden for which he is in no way responsible. The suggestion was made that there was some fundamental change in the law because of this and that this was an example of punishing a person before he was proved to be guilty. That, of course, is sheer nonsense. One must remember that already if a servant causes injury to another employee by his negligence for which the employer is in no fault whatever, the employer is liable in law. So there is no fundamental change here in the law.
§ Mr. Percy Grieve (Solihull)
Surely the hon. and learned Member will agree that there is a fundamental difference between liability for the act of one's servant and the maxim respondeat superior which has been put into full force and effect by the abolition of the doctrine of common employment and making an employer an insurer in effect of his employees because clearly he has no responsibility for acts of third parties who are not his servants.
§ Mr. Weitzman
The hon. and learned Member is forgetting the point. It was said that one should not punish a person for something which was not his fault. If an employee is injured through the negligence of the servant it is the negligence of the servant that has caused the injury. The employer is in no fault whatever and here the employer is in no fault whatever, but I am sure the hon. and learned Member, from his experience, will recognise that one has to weigh the consideration that it is inequitable to place another burden on an employer against the terrible consequences which follow an accident at work. The man may be maimed for life. He may be killed and his family deprived of the breadwinner's services. The prospects that he or his family may suffer in that way are terrible to contemplate.
If one says that an employer is liable for the negligence of a servant when the employer is guilty in no way of negligence on his part, it is not wrong to say that what the Bill does is merely to extend the principle that the employer is responsible for a safe system and the provision of reasonably safe tools. Take the case of the servant. If the servant is negligent the employer has to pay and, at any rate in theory, the employer can 1999 recover damages from the servant although we know that in practice the servant has little means and there is little chance of getting the money from him.
On the other hand, if it is the fault of the manufacturer the employer can recover against the manufacturer with a much greater likelihood of getting the damages. If it is said that the manufacturer is a man of straw or there is some reason why it is difficult to recover from him, the employer can insure against the risk just as he insures against the consequences of his servant's neglect. Therefore, it seems that as between employer and employee this change in the law is well justified.
I have only one criticism to make of the Bill. It is that it may not go far enough. Clause 1, makes an employer liable for injury due toa defect in equipment provided by his employer for the purposes of the employer's business".This does not refer to repairs. There are cases in which an employer employs a reputable independent contractor to repair equipment and as a result of a faulty repair an employee is injured. He would find difficuly in obtaining damages from the employer. As the Bill stands, it may not cover such a case. I hope that in Committee my hon. Friend will give support to a proposal to include a provision of the Bill which makes such liability clear.
I congratulate my hon. Friend on having seized the opportunity to make an important contribution to the law of master and servant and I fully support the provisions of the Bill.
§ 12.56 p.m.
§ Mr. Emlyn Hooson (Montgomery)
Many important changes have taken place in our law through the introduction of Private Members' Bills, sometimes fundamental changes. I cannot understand the criticism made today that this is not a Government Bill, for there is no reason why it should be. If it is thought by this House that it is right to change the law, it is a very strange doctrine that this proposal should come only from the Government. One can expect that the Government give their view, which they have done, and perhaps the Law Commission could look at the detail before 2000 the Bill completes its progress through the House to see if it can be improved in drafting without altering in any way its fundamental purpose.
I am very much in favour of the Bill, and I cannot understand the criticisms made of it. I should have thought that this is an obvious reform from the employer's point of view. In practice, I think most employers would welcome the Bill on practical grounds. It introduces an important change in the law, but not a fundamental change. It introduces absolute liability in certain circumstances, and this House has introduced absolute liability in many other circumstances. The judges themselves have on occasion imposed what is virtually an absolute liability. It is interesting to note that in the case of Davie v. New Merton Board Mills it was arguable up to the House of Lords as to what the law was in this matter. To suggest that this is a fundamental change in the law is absolute nonsense. It is an important change because of its practical effect.
The situation with which we are dealing here is one in which two innocent parties are involved, the innocent injured workman and the innocent employer who has done his best in going to a manufacturer to purchase equipment. However, the practicalities of the situation are these. The worker is doing work which the employer selects for him. The employer selects the equipment with which the workman does it. The workman does not choose it. Nowadays, as modern industry has developed, the employer will derive his equipment from many different sources, often from abroad.
The workman's injury is a serious matter not only for him but for his employer, too. My experience of these cases is that the employer is often anxious that his workman should have damages; he insures against it, and he is prepared to see that done. He is anxious to ensure that his workman is properly cared for. In my view, the sooner the law moves away from the old idea of culpability in this respect the better.
I do not accept the criticism that we should be making the employer a total insurer in these circumstances. In many circumstances, the employer should be a total insurer. That might deprive 2001 lawyers of a good deal of work, but it would be no bad thing from the country's point of view. It could well be cheaper than the present requirement to prove negligence, and that concept could well be extended in the law.
In practice, employers might well prefer the amendment in the law which the Bill would make in these cases. Employers know what their sources of supply are, and they can make contracts with those who supply them to safeguard against this sort of situation. They can insure against it with their insurers. It is simply a matter of moving the insurance cover from one to the other, and nothing more. I am sure that there would be no objection to the Bill from reputable employers. Indeed, they would overwhelmingly be in favour of it.
A few years ago, I appeared in a case for the manufacturers of a chisel a small piece from the cutting edge of which entered a workman's eye. The workman sued his employers and sued the manufacturers of the chisel also. The employers co-operated to the full in disclosing the name and whereabouts of the manufacturers. As I was the counsel for the second defendant, the manufacturers, my evidence came last. On the advice which he had received, expert advice, the workman thought that he had a cast-iron case against those for whom I appeared, so he slanted his case against me and did not pay much attention to the employers.
As I called my evidence last, I was able to call two of the greatest metallurgical experts in the country who proved that the metal was within proper or acceptable standards. The judge had no option in the end but to find for the manufacturers and against the workman. It was a perfectly proper decision, hut, in the meantime, the workman had virtually lost his case against the employer. The truth is that the chisel must at some stage have been damaged by being dropped, or something of that kind; a fault had come into the metal in some way.
That is an example of the practicalities of the situation. In the event, the man had an ex gratia payment of £500 from his employers. There was no fault of his; the problem was one of prov- 2002 ing where the blame lay, and, had the order of events been reversed, he would probably have had his £2,500 or whatever it might be against the employer.
§ Mr. Donald Dewar (Aberdeen, South)
I strongly support the Bill, but I question its value in such a case. In those circumstances, it would have been no help if it had been on the Statute Book, would it? One would still have to bring home negligence at some point against the manufacturer of the plant or equipment in order to succeed against the employer.
§ Mr. Hooson
I do not follow that argument. As I understand the Bill, if there is a latent defect, as it were, in a chisel, and if that is proved, he has a case against the employers and it is open to the employers then to argue the case against the third party so that it becomes an action between the employers and the manufacturers, does it not?
§ Mr. Dewar
Clause 1(1)(b) provides that there must be a defect whichis attributable wholly or partly to the fault of a third party".In other words, one has to prove that the manufacturer is at fault, or there must be a situation in which the facts speak for themselves and the court is willing to accept that there is fault, though one cannot specify whose fault it is.
§ Mr. Hooson
I follow that. In all Bills of this kind which we have to consider one can find omissions relating to situations which are not exactly covered, and obviously that is one such. Nevertheless, the Bill would make a good development in the law. In our modern industrial society, we must move away from the present basis of the law in these cases. I have for long held the view that culpability, negligence and so on do not afford a sound basis now. Our concern is to make sure that society works, to ensure that the workman is properly compensated if he is injured through no fault of his own, rather than to maintain doctrines of the law evolved in the past in a different kind of society.
§ Mr. Grieve
I appreciate that in many ways there is a case against making culpability the basis of compensation, but there is also a strong case against 2003 making liable someone who is not culpable.
§ Mr. Hooson
I do not agree. If the basis of the law is not culpability, how can it matter whether he is culpable or not? This is really a practical question. Industry insures against these things. Very often, from the lawyer's point of view, one looks at it through the wrong end of the telescope, so to speak, seeing it from the lawyer's point of view, not from the practical point of view of industry. Industry is concerned to insure. Industrialists want their workers to be properly safeguarded, and they would insure against this risk, too. It is a simple and obvious solution, and the Bill should be supported.
Having said that, however, I support the criticism which has been made of the wording. I do not like the form of words,the injury shall be deemed to be attributable to negligence".If it is not negligence, it should not be deemed to be negligence. We are introducing absolute liability here, and that should be plainly stated.
§ 1.18 p.m.
§ Mr. Peter Mahon (Preston, South)
The Bill represents a noble cause. It cannot be gainsaid that my hon. Friend the Member for Glasgow, Provan (Mr. Hugh D. Brown) has presented his case with sweet reasonableness and moderation. From time immemorial, injustice has been rampant because of the inadequacy of the law of the land to protect the workers, and their name is legion who have been unfortunate enough to sustain injury in the course of earning their livelihood.
It is often said that the law is an ass, but in the long sustained lack of justice meted out to unfortunate workpeople badly injured in industry it has for too long been an obdurate mule. To determine that an employee who is injured in the course of his employment has no redress against an employer if the employer can show that he obtained the equipment from a reputable source and himself had no reasonable opportunity to discover the defect is a reprehensible judgment.
This judgment has placed workpeople in a most unenviable and oft-times merci- 2004 less position. The hon. and learned Gentleman said—rightly—that a person is innocent until he is proved guilty. Surely, by the same token, he will agree that an injured or maimed person is deserving of justice.
The whole of the contractual arrangements governing the ownership of the defective equipment militates very strongly against an injured worker. Cases of skilled and conscientious workers who have lost their lives through an accident or who have been seriously injured, very often through no fault of their own, are well known. Not only they but their dependants suffer greatly. Oliver Goldsmith said:Laws grind the poor, and rich men rule the laws.In this instance the worker is at the mercy of the oppressors and it is in cumbent upon him, or his dependants in the case of fatal injury, to discover who the oppressor is. This is a situation worthy only of bedlam. My hon. Friend the Member for Provan will be performing a signal service to humanity if he succeeds with his Bill in altering it. We wish him well.
In cases of injury the charge of contributory negligence is often levelled against work people, and they are unfortunately in many cases placed on the wrong side of the law. My hon. Friend's action in endeavouring to opportion responsibility where it rightly belongs is laudable and worthy of magnanimous support. That the principle is even being debated is rather surprising. The eminent justice of the position to people who have had experience in industry and who have been confronted with many cases of this kind appears so obvious. It has been said in the debate that hard cases make bad law; but bad law makes very bad and painful cases. While the law stands as it does at present, it is apparent that a denial and evasion of responsibility will be the order of the day.
§ Mr. Hooson
Has the hon. Gentleman considered that if there had not been hard cases there would have been no law protecting the worker?
§ Mr. Hooson
I am sure that the hon. Gentleman has misunderstood me. I am saying chat law comes into being to protect workers only because there are hard cases. It is because they need the protection that we have had the laws. Therefore, hard cases create eventually the protective law.
§ Mr. Mahon
I am sure that work-people who suffer would rather have protection from a person with a normal, human heart than from a critical legal mind, because those in the former category can see the position through the eyes of the workers.
We would be unworthy of our trust as representatives of the working people and irresponsible in the extreme if we refrained from endeavouring to alter this iniquitous situation. I certainly hope that the Bill will proceed upon the even tenor of its way and that my hon. Friend in promoting it will have the success that he deserves.
§ 1.14 p.m.
§ Mr. Ian Percival (Southport)
I hope that the hon. Member for Preston, South (Mr. Peter Mahon) will acquit me of any discourtesy if I do not follow him in the wide-ranging propositions he has advanced. I want to get back a little nearer to the Bill.
I start on a note of agreement by saying that I am sure we all agree that we should be doing three things in a debate like this. The first is to get clear in our minds the reasons why we want to do something. The second is to get clear in our minds what it is we are trying to do. The third is to see whether we are doing in the Bill what we want to do. Sometimes quite inadvertently we do things in Bills that we did not intend to do. It is because we should approach these three questions in that order that I intervened twice earlier.
The hon. Member for Glasgow, Provan (Mr. Hugh D. Brown) gave as one of the reasons for doing something the fact that on the face of it it is somewhat illogical that one workman should have a claim and another should not. I agree that it is illogical, but the Bill will not cure that kind of illogicality. It was for that reason that I referred to the question of the gardener in private 2006 employment. I entirely agree with the Solicitor-General that the Bill will not touch, and that it should not be amended to touch, that case. That would be far too big an extension and change in the law at the moment.
So we must get our reasons straight. I do not think that it is a good reason for the Bill that there are some illogicalities and that the Bill might do something to remove some of them. If we were to approach it on the basis of ironing out this kind of illogicality, we should have to go much further.
I intervened also on the question of suing foreign manufacturers. The difficulty is that the tort has not arisen in England and that some manufacturers do not have branches in England which can be sued. Like my hon. and learned Friend the Member for Surrey, East (Mr. Doughty), I should be all in favour of anything that is put in the Bill which helps to cure that difficulty. So we must get clear in our minds what the difficulties are that we are trying to meet.
The hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) gave a lengthy instance in which he sought to show that because an employer had not done something the plaintiff would have to discontinue and would lose his costs. I do not think that this is a very good reason either, because in the law as it stands the greatest safeguard that the workman has is that, unless the employer, either in the proceedings or beforehand, gives the information, he will be liable. To defend himself, the employer has at some stage to give the information and the co-operation that is required to shift the blame on to the manufacturer.
I am all in favour of putting the obligation upon the employer to supply information, subject to finding a suitable formula. That is where we always run into a little difficulty. I would support anything which would facilitate the giving of information by a difficult employer. Again, let us not get our arguments mixed and try to do things for the wrong reasons. The difficulty mentioned by the hon. and learned Member for Stoke Newington and Hackney, North is not one that I have met and it is not easy to see how it could often arise.
2007 I want to make three general observations and then one or two of detail. In a debate like this we ought to have, and I am glad that we have in this debate, a look in some depth at some of the points of detail, because there is only the Committee stage to come. I appreciate that that is the stage when the points of detail should be examined, but it is helpful to all points of view if the matters which are likely to he discussed in detail in Committee are at least adverted to at this stage and some of the views for and against them are discussed. The Committee stage can then be useful, after people have had time to consider the points raised.
We all naturally want to see that someone who is injured because of somebody else's fault is fully compensated. The lawyers here can fairly claim on behalf of Her Majesty's judges that the common law has been most vigilant over a very long time to achieve that purpose, so far as it can. It is all very well for the hon. and learned Member for Montgomery (Mr. Hooson) to talk about doing away with the concept of culpability. The Bill does not really do that. There cannot be a successful claim under it unless the plaintiff establishes that someone was at fault.
We might have to discuss in more detail in Committee what is meant by "at fault". I am not sure that it is a term of art in the law at present, and I do not think that we do much service to anybody by introducing new terms which must be the subject of a good deal of litigation before it is known what they mean. The concept of fault is preserved here, I think deliberately, and I think that that is partly why the Bill receives the Government's blessing, because it makes it a much more limited step forward than anything the hon. and learned Member for Montgomery talked about.
We all agree on those principles. The only question is by whom the compensation should be paid.
§ Mr. Simon Mahon
Did not the hon. and learned Member for Montgomery, who is not present now, say that at a given level there was an over-riding responsibility to the employee by the employer which almost nullified the culpability or fault aspect?
§ Mr. Percival
I should not like to say whether he did. If he did, it is a novel concept which I should like to consider. It is not particularly my point. Whatever he said, I am saying that the Bill retains the concept of culpability, and I am glad that it does. If it did not, we should be having a very different debate.
We all agree that if someone suffers through another's fault he should receive full compensation. The question is where the compensation is to come from. The debate has proceeded so far on what appears to be a false assumption, that there are only two- or three-ways of dealing with that question. One is that the loss falls where it lies. The second is that the employer pays, and the third is that it falls on the employers' insurance companies. But that is not an exclusive list. A further alternative, which we should carefully consider when we talk so freely about compensating people, is that it is just possible that it might fall on the State if we say that people should be fully compensated and mean it, should not we at least consider following that up by saying that we shall see that that is done not by putting blame on employers and recovering from their insurers—and incidentally they do not always insure—but by the State? Until the mistake was pointed out by the hon. and learned Member for Surrey, East, the debate proceeded on the assumption that if that did not happen there was no compensation. I agree with him. We are talking about compensation in a very limited field, for injury suffered in the course of employment, which has been closely defined in cases under the Workmen's Compensation Act and the Industrial Injuries Insurance Act. In that limited field we have the industrial injuries benefits compensation where there is no fault, and wider rights where there is a fault. There is considerable common sense and merit in preserving that sort of balance.
It may well be argued, and I might argue myself in another context, that the industrial injuries benefits are not large enough, that there are cases where they would not be adequate compensation. But in the present financial situation—and I make no political point—it would be impossible for any Government to 2009 consider increasing the benefits to the extent necessary to meet that point, but I question whether it is a good foundation for what we are doing to say that it cannot be done in the best way, and that therefore we shall do it in another way, by putting a liability on somebody who is not at fault, though we recognise that the concept of fault is at the basis of compensation here.
I am trying to deal with the matter as briefly and non-technically as I can, but those thoughts should be in our minds when we examine it in detail. Although small changes in the law may be justifiable in the face of such considerations, it could be said without exaggeration that they are considerations that should lead us to limit the extension of the law to something modest which we are quite satisfied must be made because there is no other way of dealing with the question at present.
I should now like to say something about whether the Measure should be a Government Bill. I am somewhere in between the two points of view expressed. I entirely agree that it is a perfectly proper Bill for a private Member to introduce. A great deal of law reform has been initiated by private Members who have said, "If nobody else will do something about this, I will." That is wholly desirable, but I stress the word "initiated". The problem once a Bill of this nature has been initiated is that, whether the hon. Gentleman likes it or not—and I understand his not liking it—we get into technical legal matters. If one is to do something concerning the nation's health, one might think it reasonable to listen to the views of the doctors, similarly, when one is doing something affecting the nation's laws it is inevitable that the technical aspects of the law must be considered. But there are better ways of doing that than in the House.
We have a number of agencies outside the House, such as the Law Commission. We may not all agree on the best jobs to be done by it, but it seems to me that this sort of thing is eminently fitted for a body of such high standing to consider. The Government have the Lord Chancellor's Department, the Departments of the Attorney-General and the Solicitor-General, and other legal Departments. Once a Measure like this has been 2010 initiated by a private Member and it has the Government's support, as this one has, there is a great deal to be said for its being taken over by the Government, if they do not take it over lock, stock and barrel, they should at least subject it to all the processes to which they would subject a Bill if they were promoting it, and in particular consider the legal technicalities. Such a course would be of great advantage to the House in considering the final form of the Bill.
Finally, on the generalities, I invite a little caution on the argument "What does it matter? The employer will insure." No doubt he will, but that does not seem to be an awfully good argument for changing the law, especially when it is a bit of a side wind. I am not sure that nowadays, having regard to the much improved status, financially, educationally and otherwise, of the vast majority of our people, it is not a bit of an insult to suggest that it is only employers who can think about insurance. A large proportion of the population are represented by very large and responsible bodies. If this is to be covered by insurance—and I think there is a good argument for it—let us not fall into the trap of thinking that there is only one party who can insure.
All of this might be quite unnecessary if we were all to get out and in our contacts with various walks of life in our constituencies—perhaps we ought to have done this years ago—say to the man on the factory floor, "You are at risk. Did you ever consider insuring against it?" It may be a question of pounds for employers to insure but for individuals it would be a matter of pence. I hope that we shall not place too much weight on that argument. It is a consideration, but it does not seem a very good reason for taking this step.
Turning to some comments on the form of the Bill, I think it fair to state, from what the promoter and the Solicitor-General have said, that one must look at the Bill on the assumption that what it is intended to do is purely and simply to overcome certain difficulties which arise and is not intended to be of any wider application than that. The Solicitor-General was a little more specific than that, rightly. There are only two real difficulties here. One is in the case of a foreign supplier, which is a company 2011 which has not got a place of business in England or has no one in England who could be sued. The second is that of getting information to sue the appropriate person.
In so far as those are real difficulties, most of us would want to see the Bill in its final form doing something to meet them, but we must consider what it is we are trying to overcome. If what we want is simply to deal with the case of a machine bought from abroad, where a plaintiff would have little chance of sueing the manufacturer. Very well; let us make the manufacturer liable for the risk in that case. I can see the sense of that. I should not regard it as unreasonable. The person then buying from abroad would know that the manufacturer was under strict liability, and that there would be nothing unreasonable. That would not be breaching a principle. It would be dealing with a difficulty that is known to arise. An alternative way would be for the State to accept liability in such a case and pursue the claim against the manufacturer.
I am not sure that what we are doing has not got rather near saying "We will jolly well ensure that he gets paid as long as it is someone else who does the paying." For reasons that I mentioned earlier, I am not happy about that proposition. We should not lay ourselves open to accept this except within the very narrow spheres in which it might be essential.
I hope I have said enough about the second point, the question of making information available to prospective plaintiffs. My experience is that where an employer wants the blame to be shifted to the manufacturer, he is only too ready and willing to give the details. I propose to say no more than that I agree with my hon. and learned Friend the Member for Surrey, East and the Solicitor-General that if any provision could be worded to deal with the point it might be useful for some plaintiffs in some circumstances, and, therefore would be a useful thing to do.
On the other side of the matter, I ask the promoter and the Solicitor-General to consider these matters before the Bill goes to Committee. I have dealt with the 2012 first two stages, the reasons for doing something and what we are trying to do. I want to say a word about the way in which we are doing what we are trying to do and whether we may not be doing an awful lot that we did not intend to do and getting into another jungle, in that, instead of simplifying the law, we shall have made so many changes that it will be a long time before we have enough cases to tell us what it is all about.
I assume that it is intended to cover simply defects that were in the equipment when it was acquired by the employer, defects that he could not have discovered by reasonable examination when he acquired it. I suggest to the promoter and the Solicitor-General that if we leave the Bill as it is we shall have gone a very long way further than that.
First, I do not know of any definition of "equipment". I ask the promoter to give most careful consideration to introducing such a definition in Committee. Unless the Bill has that definition, the possibilities of litigation on that point will be too great. It may be difficult to define the term, but let us not make the mistake in this Bill of leaving all the difficult things to the courts. That is a habit which we have in the House. When we cannot decide what we mean by a word we tend to leave it to the courts to decide, and when the courts find it difficult, we say, "Aren't the courts silly?" It is we who have the responsibility to get it right first.
The promoter might consider the following points if he adopts my suggestion of introducing a definition. Is this only new equipment, or is it secondhand equipment? If he means the Bill to apply to second-hand equipment, will he give attention before the Committee stage to the difficulties that may arise in connection with second-hand equipment? He should bear in mind that in Clause 1(1)(b) of the Bill the plaintiff has to prove fault on somebody's part, and that with second-hand equipment he may be in some difficulty. The equipment may have gone through the hands of several people, and it may be difficult to prove whether there was fault or whether the defect occurred purely accidentally, or how it occurred. Does the hon. Gentleman intend defects in equipment to mean defects that got into the equipment when 2013 it was being prepared? I will not develop this; it is a matter for Committee. I put the point forward now because it will help the Committee if it has the considered view of the promoter and the Solicitor-General on this kind of problem.
Is the intention to cover defects which existed simply at the time of acquisition, or is it to be defects which developed in the equipment at any time? From the wording of the Bill, I think the second is the intention. If the second is intended, it appears to me to be making; such bigger changes in the law than either the promoter or the Solicitor-General has said are intended.
What is a "defect"? This must be defined for the same reasons as I have suggested that equipment ought to be defined. Let us not walk straight into another lot of litigation with the courts being accused of being silly and lawyers of buttering their bread. We spend many hours here trying to simplify the law and then are castigated afterwards for getting a living by trying to sort out the mistakes made by our colleagues in the House because at the time they would not listen to us because we were lawyers. Again I take this briefly, because I think that I have said enough to indicate the way in which my mind is working.
What is the position intended to be if the injury cannot be proved to be anyone's fault, if there is a defect which was pure accident, if the injury resulted from pure accident or was outside anyone's control? Would it not still be that the loss would lie where it fell? I was about to give the House one or two examples, but instead, I will give them to the hon. Member for Provan in the hone that he will find them of some use in giving such consideration as he can to the points which have been made. I hope that he will give special consideration to the matter of definitions and pay careful regard to what has been said about the wording of the Bill. If we are to make an absolute liability, let us do it. Do not wrap it up by saying that something shall be deemed to be something which, ex hypothesi, it is not. That is another fault into which this House has fallen, and I hope that the hon. Gentleman will not lead it into yet another by adopting that sort of phraseology. If 2014 it is to be an absolute liability, say so, and follow it up by making it clear within what limits that absolute liability is to be imposed.
It might be thought, after making all those complaints, that I am against the Bill. Like the Irishman, in a manner of speaking I am and in a manner of speaking I am not. I am against it in its present form, and were there an indication that that was to be its final form, not only would I vote against it, but I would round up others to vote against it. In view of the spirit in which it has been introduced and in which the learned Solicitor-General has made his observations about it, I think that we can regard ourselves as a working party. We all agree that a wrong needs to be put right. For the benefit of us all, and more especially for those whom we are trying to help, we should make sure what exactly we want to do and then make sure that we do it.
I welcome the Bill as an opportunity to make corrections. In its present form, I regard it as a Measure which is likely to do more harm than good. But in the spirit in which the debate has proceeded so far, I hope that there will be considerable flexibility built into it.
I give a cautious welcome to what the hon. Member for Provan has brought before us.
§ 1.44 p.m.
§ Mr. Donald Dewar (Aberdeen, South)
I start by congratulating my hon. Friend the Member for Glasgow, Provan (Mr. Hugh Brown) both on heading the list of the Private Members' Ballot and on introducing the Bill. It is not a Measure which will be widely noticed by the ordinary rank and file in his constituency, and it will not get very many column inches in the newspapers, though there have been moments during the last half hour when I thought that it would get an unpleasantly large number in HANSARD.
Given the circumstances, there are always those hon. Members who go in for a little propaganda platform work with a Private Member's Bill. It is tempting to make a little essay in gesture politics. My hon. Friend is to be congratulated on going for a useful and constructive law reform rather than for a Measure which might have been more 2015 sensational, but was not likely to reach the Statute Book.
It is a Measure which is limited in scope. I recognise the reason why it had to be, but in some ways it is rather a pity. It reverses the judgment of Daviev. New Merton Board Mills. No longer can a defence be brought that a piece of defective equipment was purchased in good faith from a reputable manufacturer and that reasonable inspection was carried out. It returns Scottish law to the state in which it was before the House of Lords gave judgment in that case.
Reference has been made to the judgment in Donnellyv. Glasgow Corporation, in 1953. In that case, a bus spring broke. When the corporation was sued by the injured driver and conductor, its defence was that the bus was purchased from a reputable manufacturer and that a certificate of fitness had been issued by the Ministry of Transport. Both defences were put aside as being highly irrelevant.
The Bill will be popular in Scottish legal circles. The last Lord Advocate, the present Lord Stott, was an enthusiast for this reform. There have been occasions in the past when the other place, in its judicial capacity, has imported into the law of Scotland rather alien concepts from south of the Border with unfortunnate effects. An example was Bartonshill Coal Companyv. Reid, back in the 19th century, which wished on us the law of common employment as it applied in England. It was not until 1948 that this House found time to do away with it.
As one who has practised law in Scotland, I welcome the Bill. I am pleased to see that matters have progressed since it was before the House last Session. At that time, it got a rather dusty reception, and, though I would not say that enthusiasm has burst all over the benches today, I think it is clear that the Opposition will not vote against it.
§ Mr. Percival
Let me make it clear that it is certainly not regarded on this side of the House as a party Measure. No view expressed from this side of the House is an Opposition view.
§ Mr. Dewar
I apologise to the hon. and learned Gentleman.
Apart from the legal niceties, the Bill represents certain social attitudes to the 2016 way in which industrial activities should be organised. I shall refer briefly to that presently.
We are all agreed, irrespective of our opinions or where we sit, that there is a wrong here and that some sort of Measure should be introduced to put it right.
The hon. Member for Carlton (Mr. Holland) was not entirely convincing when he drew attention to the difficulties which undoubtedly face employees who raise actions in the circumstances about which we have been talking. For example, where the manufacturer is a foreign company, certainly in the law of Scotland there would be enormous difficulties. In my time, I have been employed in a law office which has had the unfortunate job of attempting to establish jurisdiction in the Scottish courts against a foreign defender. It is an expensive and tiresome business to be looking desperately for a piece of plant or a ship moving through the jurisdiction of the Scottish courts which can be arrested in passing.
§ Mr. Holland
It is because I recognise that there are enormous difficulties in the case of a foreign supplier who cannot be sued in the British courts that I suggest that the position should be dealt with by a change in our social policies. It could be done, for example, by a change in our social insurance arrangements.
§ Mr. Dewar
I am attracted by that suggestion, but it would bring in wider considerations about the issues of culpability, fault and negligence. As a remedy for the specific matter with which the Bill seeks to deal, I find it difficult to think of a neater and more convenient way of righting the situation than the way that my hon. Friend has picked.
The hon. Member for Carlton was unspecific. He said that there must be some other instrument of social policy. Perhaps we can change the legal aid rules, but my experience is that that would be very difficult. I do not see that any of these so-called alternatives would meet the point and get round the fundamental difficulties in principle which some hon. Members seem to see in the Bill.
Of course, I accept that there is a shortage of precedents which illustrates the need. The reason, in part, is, and I do 2017 not want to sound too smug that on occasions the legal profession advises clients, and I have known of this personally, that there is no point in proceeding with the case because of the rule in Daviev. New Merton Board Mills and that to proceed would only raise considerable difficulties. This would be one of the problems in any legal aid scheme, because there would be no prima facie case and a client would be advised that to proceed off his own bat might land him in much expense in a hopless cause. The fact that there is not a great plethora of cases does not mean that there is not a great deal of injustice below the surface.
My hon. Friend the Member for Rowley Regis and Tipton (Mr. Archer) was right to ask some fundamental questions. Who is in the best position to protect himself in these circumstances? It seems to me that undoubtedly it is the employer, and the whole basis and the whole social bias should be to increase—and I and not ashamed about this—the liability in social terms of the employer to protect his employee if there is continuing injustice.
The Bill is limited, and I interrupted the hon. and learned Member for Montgomery (Mr. Hooson) who seemed, at least in the example he was giving, to suggest that this was absolute liability in the sense that, if there were an accident, liability would fall on the employer irrespective of all circumstances. It seems clear that the need to prove negligence in all circumstances is being retained and while it may be that the employee can now proceed against the employer, at the end of the day he still has to prove negligence or fault on the part of the manufacturer. Some of us feel that this is a timid reform in this respect, but it should be reassuring in view of some of the general criticisms and attacks mounted in the speeches of various hon. Members.
I accept that there is a principle enshrined in the law, to use that kind of terminology, to which we all pay lip service on occasion, that there should not be liability unless there is fault, and from the way in which some speeches have been framed one would think that this principle was enshrined in the legal systems of England and Wales and Scotland in its pristine simplicity unsullied.
2018 I think that it was the hon. and learned Member for Surrey, East (Mr. Doughty) who said that we should not be swayed by appeals to sympathy. But, in fact, the law and the courts have been swayed by appeals to sympathy for a very long time, and we have innumerable examples of strict and absolute liability being placed on an employer for very good social reasons. I do not want to weary the House by going through them for they will be familiar to hon. Members involved in legal debate.
After all, the very idea of reasonable foreseeability, for example, leaving aside statutory strict liability, is an infringement of the general principle, which most people assume to hold good, that if there is a moral wrong, an offender should pay in terms of damages and compensation to the person who has lost. There may be a situation in which in general moral terms a person is not culpable, but, because the law takes the standard of a reasonable man and a reasonable man's actions, even in that respect one breaches the general moral principle which most people seem to assume to lie behind the law.
One hon. Member said that the Factory Acts provided only a negligible exception to the general rule, but I do not agree. For example, any moving part of a machine must be guarded and even supposing that the relevant guard is supplied but not used and there is absolutely no fault of the employer, he is still held liable, which I would have 'bought was a more serious and blatant breach of the general principle, to use the kind of terminology used in those speeches, which hon. Members are calling to their aid.
§ Mr. Percival
It was not I who spoke about the Factory Acts, but would not the hon. Gentleman agree that the point there is—and I think that this is of application to all absolute liability—that the absolute liability of which he is talking is a liability in respect of dangerous machinery, of the moving parts of dangerous machinery, where the basis is the inherent element of danger. The Bill is a much wider extension.
§ Mr. Dewar
It is an extension, but it does not run counter to the traditions of legal development for many years. There has already been talk of Rylands v. 2019 Fletcher and there are other examples in maritime law, in the ports and harbours legislation, and so on. I could go on giving examples for hours. I cannot understand why hon. Members should put such enormous weight on the fact that there must be fault before there is liability.
The very principle of vicarious liability itself, which was openly attacked in the Committee stage of the similar Bill last Session—and I was surprised by this, because I thought that few people nowadays attacked this principle—when hon. Members went so far as to say that they disapproved of the principle of vicarious liability, that it was inequitable, is now rightly built into our system, and it is justified on any kind of social grounds which might be considered.
Other arguments have been used, but I do not think that they have much substance. I recognise that there may well be an argument over the definition of the word "equipment", but presumably the common law of England has had to define "equipment" on many occasions because of the duty of an employer to provide safe equipment or safe plant. Certainly, the law of Scotland before Davey v. New Merton Board Mills had a situation very similar to that proposed in the Bill and, as far as I know, it did not raise any great difficulties. It is something to be considered and no doubt further advice will be taken by my hon. Friend the Member for Provan, but I cannot imagine that this is any sizeable objection to the passing of the Bill in its present form.
Again, although we have not heard much about it on this occasion, there were many piteous plaints about the place of small businessmen when a similar Bill was discussed in Standing Committee in the last Session. I do not want to labour the point about insurance, but there is no doubt that if businesses cannot insure properly against risks to their employees, they are not the kind of businesses which we should encourage to continue in existence. As we are always having pointed out to us, there is recourse against the manufacturer and I would have thought that the addition to the insurance premium of 2020 a small business which it must pay for general protection against negligence would be very small and hardly a substantial argument against the Bill.
§ Mr. Holland
The hon. Gentleman refers to the discussion of a similar Bill in Standing Committee in the last Session, and I gain the impression that he is suggesting that hon. Members should keep closed minds in debate and put forth the same arguments time and again. I see no profit in that and I wonder whether he will confirm or deny that he is implying that.
§ Mr. Dewar
Not particularly. I was merely saying that it was a substantial argument in a number of speeches on the last occasion and that it has not been pressed today. I mention it in passing, which does not seem particularly improper or unfair.
The other arguments seem to be basically a repetition in a variety of forms of the general dislike—and I return to what I said about social attitudes—of the idea that there should be comprehensive cover for industrial injury at the expense of the employer. Some interesting and fair comments were made by the hon. and learned Member for Southport (Mr. Percival), for example, about exactly what the general social system should be. I accept that the number of anomalies is enormous, and none of us likes leaving industrial injury to analogy. None of us likes a situation in which, if a man is badly crippled and his whole family is put in jeopardy as a result of a car accident, he may claim substantial damages if there is some notion of negligence, while if the accident is due to an act of God, if a tree falls on his car, or something like that, he gets absolutely nothing.
Similarly, it is right and we accept this, that if a man is injured at work and there is some infringement of strict law imposed by a statute, or if there is common law negligence, substantial damages can be claimed. Otherwise, he would have to subsist on industrial injury benefit, which is not the same kind of money and which is not meant to cover the same kind of conditions.
§ Mr. Percival
The hon. Gentleman has attributed to me a little more than I said. I said that it is very unfortunate, 2021 I did not say that it was always unfair. A great many of the things that he is now mentioning could be covered by insurance. I wish they were. I do not go as far as he does.
§ Mr. Dewar
"Unfortunate", "unfair". It is certainly a fact, and it leads to uneven treatment of individuals who are only a very small degree at fault, or maybe not at fault at all.
I would like to think that there might come a time when, although it is far away, we can get away from the whole concept of negligence and fault as we observe it in the courts now. There might be a case for trying to establish a system of compulsory insurance, in which employer and employee, and the State if necessary—this would be a matter of actuarial computation and policy—might combine together so that anyone who has the misfortune to suffer an accident could look forward to proper compensation, irrespective of the arbitrary decision of the court as to who was at fault, when and how.
I think that this will come some time, but, given that it is outside of the scope of the Bill and must remain so, it is certainly right that the employee who finds himself in this difficult and unfortunate situation should have the right of recourse against his employer. That is where the balance of social justice undoubtedly lies. The Bill is useful because it tidies up the law of reparations, and as such I support it.
§ 2.2 p.m.
§ Sir Brandon Rhys Williams (Kensington, South)
When Mr. Speaker asked me whether I was to speak in favour or against this Bill I found it difficult to answer. It is true to say that everyone who has spoken has extended a welcome to it in varying degrees of warmth and I would indeed like to congratulate the hon. Member for Glasgow, Provan (Mr. Hugh D. Brown), the promoter of the Bill, on drawing the attention of the House to a problem which certainly needs investigation. He put his case in an extremely reasonable way.
When the Bill was published, having served on the Committee which considered the same Bill in its previous existence, I hastened to see whether the particular phrase in it which had caused objection in Committee had been 2022 amended. I was very disappointed to find that it appeared in precisely the same form as before, that is to say, in lines 12 to 14:… the injury shall be deemed to be attributable to negligence on the part of the employer (whether or not he is liable in respect of the injury …But for that unhappy phrase this might have had the makings of a satisfactory Bill.
It is very disappointing that all the arguments in Committee appear to have been neglected. It is highly objectionable that we should pass a law to the effect that in future white is black. Although the Solicitor-General makes the point that this is simply an extension of the principle of vicarious liability, that does not seem to meet the objective of the Bill. Rather it seems that the drafters have said to themselves, in a rather lighthearted spirit, that just as any peg will do to hang one's hat on, so any party to the action can be selected to become responsible for the compensation which ought to be paid.
This is a very wrong and impractical approach, as I hope to show. It possibly stems from the unhappy "two sides" mentality which is still the dominant outlook among employers and employees in industry. It seems to suggest that the drafters of the Bill feel whatever the position may be in law, the law is an ass, and, of course, the boss is the guilty party. This will not contribute towards better industrial relations. The promoter suggested that the Bill would have a tendency to improve the climate of industrial relations, but I feel that it is diametrically opposed to this. It is simply another way of differentiating between the interests of workers and employers. I would like to see, in every canteen and boardroom, fastened on the wall, the old truism that there is only one side of industry and we are all on it. It may be a truism, but there are unfortunately very few people today who recognise it as a fact.
The object of the Bill should be to cover the eventuality that an employee may suffer an injury for which no one is liable. Everyone in the House feels that something ought to be done to cover these, perhaps few, but serious cases when there are accidents. It is a very small problem in the context of 23 million or 25 2023 million people at work, but it is extremely serious for the unfortunate man or woman who suffers injury as a result of defective equipment. The object of the Bill is not simply to procure an extension, in a legalistic sense, of the principle of vicarious liability, nor is it simply to fasten the burden of blame on the employer.
That is not likely to prove very fruitful in itself. As a number of hon. Members have said, the right course is to provide for this particular eventuality to be covered by insurance. If this is what we mean we should say so, and not allow ourselves to be side-tracked into questions of who is to blame, particularly when the courts have already decided that the employer is not to blame, and that is what the problem is all about.
If the Bill were on these lines, that is to say, if it were to procure that the employee should in every case be covered by insurance, I would think it an extremely constructive and useful Bill. If this is to be done, and a number of speakers have suggested that this is what will happen if the Bill goes through as it stands, I concede that the money for the insurance has to come from somewhere. I hope that we can work together to look at this and to see where the money should indeed come from. I cannot make an estimate of what the insurance companies, or using the insurance principle, what any particular insurer, would quote in order to cover his risk. My guess is that it is a tiny risk and that possibly a shilling or a few shillings a year would be sufficient to cover it. Nevertheless, the money has to come from somewhere and it is right that we should decide who is liable to find it.
The employers are the prime movers in any employment situation. I feel that they should find the very small sums involved. No one would really disagree with the proposition that protection of the employee is part of the context of the proper conditions of work which everyone, whether employer or employee is willing to accept in the twentieth century. Every good employer must be willing to cover the hazards of employment as they affect the employee.
Under the Bill it seems that either through neglect or ignorance, or for other reasons, employers, and particularly small 2024 employers, might omit to take the appropriate cover. The object of the Bill would thus fail, because the employer might not be in a position to meet the possibly quite large sums of compensation that might be required in the event of a serious accident.
It is also a defect of the Bill that it only applies if the accident occurs while the workman is employed in the course of business. I realise that some of my hon. Friends may not agree with me, but we really ought to consider the whole sphere of employment, not just of employment for profit, when one is talking of accidents. It does not very much matter for the injured employee whether profit is the objective of the work he was engaged on.
§ Mr. Peter Mahon
The hon. Gentleman will surely concede that even the employer who is not quite a man of straw cannot cover every contingency in industry, and it is in this way that the unfortunate worker has suffered in the past?
§ Sir B. Rhys Williams
I do not see why a contract of insurance should not be drawn in such terms that it would cover all the contingencies which can reasonably be expected where accidents arise in the course of employment. Whether the employment is for the profit of the employer or for other reasons should not affect the rights of the man who suffers injury.
A number of years ago I bought a mechanical saw from what I believed to be an extremely reputable manufacturer. I understand that the manufacturer has since gone out of business. It was a good saw in its day and it is still a usable machine. When using it myself, I am often impressed by the fact that if it contained any defect the accident which it could cause might be extremely serious. If I ask anybody to use it on my behalf I insure against any accident arising from its use.
If I omitted to do so, or if there were loopholes in the contract of insurance, someone who suffered an accident while working the machine on my behalf might have a very substantial claim to make against me which I might not be in a position to meet. Occasionally, a tree needs to be cut up or the saw may be used to remove an obstacle. If I saw 2025 an opportunity to sell the timber as firewood for a few shillings I would be willing to accept the money for it. Does my decision make all the difference in law to my employee having the right to claim against me or not? It does not seem to me that it does or that it should.
I feel that an Act is required, but the Bill is not the right approach to it. To take the matter slightly wider, we should consider the possibility of covering this eventuality by National Insurance. The slogan which introduced the National Insurance scheme was "Nine-pence for Fourpence", because the employee paid 4d., the employer paid 3d. and the State paid 2d. Not enough attention has been given to the reason why employers put in 3d. in the early days of National Insurance and why they still make a very substantial contribution to National Insurance Fund. I believe that there is a very good reason for employers to make a contribution, but that it has been lost sight of.
I do not know the precise amount which employers are now contributing to the National Insurance Fund, but I believe that it is about £800 million a year. Is this simply another form of taxation, or does the contribution by employers to National Insurance have some mewling? We are about to receive, I hope, copies of the long awaited White Paper on the reconstruction of the National Insurance scheme. I trust that it will deal with the future rôle of the employer's contribution to National Insurance, that it will justify the figure being what it is and that it will show what the money is used for. In particular, I should like the White Paper to define precisely the responsibilities of the Industrial Injuries Fund.
Another reason why it is possible that National Insurance is the best way of dealing with cases of the kind we are considering is that it should be possible for National Insurance to settle compensation without the interminable delays which seem invariably to occur when complicated questions of liability are brought before the courts. I believe that it is commonplace for years to go by before a man who has suffered injury—or perhaps his wirow—learns whether the courts will decide in the man's favour and what is settled as the amount of the compensation. This is a 2026 serious defect of the present situation which has not been mentioned today. I should like the employers' fund, within the context of National Insurance, to cover all genuine hazards of employment—that is, sickness benefit, income maintenance in unemployment, retraining costs, redundancy compensation and, particularly every aspect of industrial injury.
Reverting to the Bill, if it can be redrawn in Committee in such a way that it ensures that the eventuality which it seeks to deal with is covered by insurance, and if the objectionable phrases can be taken out which try to make the employer blameworthy when he is not, I would warmly support it. I am very much afraid that for procedural reasons a change of this magnitude may not be possible. If it is not possible, the Bill should be withdrawn.
§ 2.15 p.m.
§ Mr. Simon Mahon (Bootle)
Before I welcome the Bill, I should like to say that one or two unfortunate remarks have been made by hon. Members opposite. The hon. and learned Member for Southport (Mr. Percival) said this morning, of all mornings, that lawyers were not listened to. We have had a surfeit of legal advice today, but on this occasion it has been to the profit of all who have listened to it and certainly to the benefit of many workers in this country.
I worked from 14 years of age until I became managing director of my own firm. I should like to refer to the courteous speech of the hon. Member for Kensington, South (Sir B. Rhys Williams). So often the statement is made that there is only one side to industry and that we are all on it. Regrettably, that simply is not true. One of the most beneficial results of this Bill may be that it removes some of the irritation which causes so much trouble in industry. I wish that there were no class war. I do not want anyone to exacerbate it. Throughout my life I have tried to avoid circumstances—strikes and everything else—by which this war and the friction between people have led to the economic difficulties of the country.
I am glad that the hon. Member for Kensington, South said what he did, but 2027 I wish that he would have a greater effect on his hon. and right hon. Friends. There is a tremendous difference between the lad who works on the Liverpool docks and the London shipowner. I want to see the gap narrowed. We have made a great deal of headway, but let us go forward and make much more. I offer my services to the hon. Member for Kensington, South and anybody else who tries to raise the standard of working class people so that the tremendous difference between people in this country is lessened and ultimately banished.
I agree with the hon. and learned Member for Southport that compensation for many of the injuries which people have suffered has not been large enough. People have suffered in the past and have received no compensation. In other cases, one has been appalled by the paucity of the compensation given for quite alarming injuries in industry.
My hon. Friend the Member for Glasgow, Provan (Mr. Hugh D. Brown) has done a service by introducing the Bill. How much more pleasant it would have been, and how much sorrow would have been avoided in industry, if it had been introduced 30 years ago. Whether it be the responsibility of the Government or of a private Member, I congratulate my hon. Friend on taking this action which is so worthy of the cause which he represents.
I have always believed that when a man offers his services to an employer that employer should be responsible for his safety. In this House there are people from many different walks of life, and it is sometimes a good thing to use an analogy. I can remember, in the early days, being on the stand, that iniquitous system of casual employment. We did not know whether we would be employed. We did not know who the employer would be. We did not know what sort of tools we would have to use if we got employment. We did not know which ship we would be working on. We did not know what nationality the ship would be. We did not know the circumstances under which the ship would be berthed. We had all those things to worry about, but they faded into insignificance, because our first responsibility was to try to get work irrespective of the difficulties under which we would be working.
2028 The hon. Gentleman spoke about dermatitis. In spite of all the difficulties which I have enumerated, we had to go to work, and the fear of contracting dermatitis was always with us. As a boy of 14 I had to work in the double-bottomed tanks on ships. It is extremely difficult to pin responsibility on anybody for a piece of broken machinery, or bad material. Very often we were saturated from head to foot in oil. If we claimed that we had contracted dermatitis through our work, we were told that our social conditions were responsible for our contracting the disease, not the conditions in which we worked. Anybody who knows anything about industry knows that that was the dilemma in which many work people found themselves. It is good that such things have faded into insignificance, and no one in the House would wish that state of affairs to return.
We have been talking about a Bill like this for many years, but we were discussing it in a vacuum. Nobody ever listened to us. Lawyers have the knowledge that they are addressing what might be termed the best forum in the land. Their voices have effect. The provisions of the Bill have been discussed for many years in the depths of every mine in the country, in the hold of every ship, and on every large and small factory floor. It is therefore all the more praiseworthy that my hon. Friend has introduced this Measure.
The hon. Gentleman talked about the element of chance in industry, and about trying to pinpoint responsibility on an employer. Of course this is difficult to do, and, as the hon. Gentleman said, many complications will arise while the Bill is being considered. Once that principle involved in the Bill is admitted, more and more complications are bound to arise. For example, equipment does not always come from one place. The deck equipment on a ship, or the machinery which drives a crane, could be made in one place, while the steel could be made in another. The manilla, or wire, ropes, and the blocks and tackles, which are ancillary to that machinery, could all be made in different places, and under different circumstances. Such a situation could lead to complications, but I nevertheless applaud the principle in the Bill.
2029 I am sure that everyone in the House will agree that there are two things which frighten ordinary working-class people, even today. One is the blue paper, and the other is entering into litigation. Working class people are completely in the hands of their lawyers or advocates. We are dependent on the legal profession to a great extent to iron out our difficulties. Will the Bill apply to materials bought abroad and used to manufacture machinery in this country if, because of faulty material, that machine injures someone?
If a mask is used and there is an abrasion which causes dermatitis, or if there is something about the material which causes a form of pneumoconiosis, or if the material is asbestos, or if some other material which is not scheduled is used, what will be the position there? In Committee I should like to ensure that the principle which has been enunciated is analysed still further. The Bill will be of great benefit, and once we start on this kind of provision I do not think that we can stop there. Hon. Gentlemen opposite are right when they say that this must not be a Bill of partial power. It must go the whole way, if it is to go any way at all It is a much bigger, and much more important, Bill than it appears to be. I know that some of my hon. Friends have another important Bill to discuss today if there is an opportunity for that, but I wish that that Measure had the same merit as this one.
I have spent my life in industrial towns, and I know the kind of things which plague our people and present a danger to them while they are at work. I know the dangers faced by people at work in the docks, and in factories. It may be amusing in some ways, but I know that on a number of occasions a man's life has depended on a steel hook. In some instances, just one hook may be holding 70 or 80 tons of material above a man's head. Because of a fault in the equipment, that load could well kill somebody.
That sort of situation arises almost every day in a great international port like Liverpool, yet when there is an accident it is often difficult to be specific. We are not dealing with British commodities all the time. We have to deal with Japanese, Liberian, and other ships from all over the world. We have 2030 to deal with all kinds of complicated gear. We come up against all kinds of complications in different engine rooms, and inside different boilers. These are the practicalities of the job.
I do not wish to take up any unnecessary time, and I do not want to be accused of things for which I am not responsible. I am glad that the Government have given the Bill their blessing. This is a belated Measure, but I do not wish to be churlish. I am grateful to the Government, and I am grateful, too, to my hon. Friend the Member for Provan. I congratulate him on the way he made his case, on the impression that he made on the House, and on the fact that he has gained Government support for this Measure.
§ 2.30 p.m.
§ Mr. Percy Grieve (Solihull)
The hon. Member for Bootle (Mr. Simon Mahon) and many other hon. Members have drawn on their personal experience of the hardships which can befall a working man when he finds himself in difficulty in seeking a remedy for an injury which he has suffered. No one could fail to have a great deal of sympathy with the objects of the promoters of this Bill, and I certainly declare myself straightaway as one who has such sympathy. I question, however, whether this Bill is the right way to seek a remedy or a proper means of righting any injustice which the promoters of the Bill have under consideration.
I had quite recently to advise in a case which appeared to come on all fours within the case of Davie v. New Merton Board Mills, and I imagine that most practising common lawyers have had that experience not infrequently over the years. It is very hard, and very hard for one's client, when one has to say, "Your employer was not at fault. You have to look beyond your employer to the manufacturer of the tool or the machinery the faulty manufacture of which was responsible for your injury." Therefore, I hope that I have made myself plain in saying that with the objects of the Bill I have sympathy, and I should like to see them effected, but I question very much whether this Bill is the right way of going about them.
A number of hon. Members on both sides have referred to the possibility of 2031 taking all injuries at work and possible injuries on the road and accidents of that kind outside the tort of negligence altogether, and there is a very strong case for doing that. I would certainly welcome an inquiry into the possibility of a system of national insurance which covered every individual against the possibility of serious injury to him and to his family and which would have as its object compensation on such a scale as that which the courts at present find appropriate in awarding damages where negligence is proved. But it is one thing to suggest that his might be a desirable object of social policy, and quite another thing to say that the State will impose upon an individual or a corporation a liability to pay damages where there is no fault in that individual or that corporation at all.
It is for that reason that I find myself very unhappy about the way in which this Bill sets out to achieve the objects of its promoters, because we cannot escape from the fact that what the Bill is doing is by a fiction to say that an employer has been negligent or shall be deemed to have been negligent where, by definition, he has not been negligent at all. I am looking at Clause 1:Where after the commencement of this Act—In a number of the speeches which have been made in the House today the point has been made that the employer will cover himself by insurance. It is a costly matter to cover oneself by insurance. All employers are covered to the extent that such cover is necessary by reason of the law as it is at present. Should the State, because it says an injustice may befall an employee, impose what is in fact another injustice upon the employer by putting him to expense because it finds this the most convenient thing to do?
- (a) an employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by his employer for the purposes of the employer's business; and
- (b) the defect is attributable wholly or partly to the fault of a third party (whether identified or not), the injury shall be deemed to be attributable to negligence on the part of the employer. … "
That, in effect, is what this is. If the State thinks the employee should be compensated, where at present he has no 2032 right to compensation, or only a right which is difficult to enforce, then the State should undertake to provide it, and not put the burden upon an individual or upon a corporation or an aggregate of persons where they are not at fault.
I am not here pursuing the points which were made by the hon. Member for Aberdeen, South (Mr. Dewar). One could pursue a philosophic inquiry as to whether there is a moral element in the tort of negligence. There clearly may be a moral fault, but also there are some torts which are negligence but not moral faults. The tort of negligence in itself has nothing to do with morality one way or another. One may be at fault but morally in the clear. What this Bill seeks to do is to impute a fault where there is none at all, and so would shift to an individual liability for a fault which is not his, and that is not the right way of going about. It is as simple as that.
I speak at the end of this debate. I ought to apologise for not having been here at the beginning. I was kept from the Chamber by constituency matters, and I came in, therefore, after the hon. Member for Glasgow, Provan (Mr. Hugh D. Brown) had spoken and after the Solicitor-General had spoken. I hope, therefore, they will forgive me if I have misinterpreted anything which has been said or have not adverted to something that has been said and which met the point which I had sought to make. But I think I have made my point as clearly as I can. I believe it to be wrong in law to impute a fault and to put responsibility on a man when the responsibility is that of society and not that of the individual.
I conclude by referring to a point which was made by the hon. and learned Gentleman the Member for Stoke Newington and Hackney, North (Mr. Weitzman). He submitted to the House that what it was sought to do here was not different in fact from what was done already by making the employer vicariously liable for the acts of his employee when the employee injured a fellow servant. With respect to the hon. and learned Gentleman, I submit that this is not a true or apt analogy at all. An employer has always been liable to third parties for the acts of his servant in the course of his employment because the 2033 servant is his agent in the commission of those acts. The doctrine of common employment, which denied to an employee a remedy against his employer, or for an injury caused by the negligence of his fellow servants, was a fiction, of which it was said thatLord Abinger planted it, Baron Alderson watered it, and the Devil gave it increase.The doctrine of common employment which made such an inroad into the ordinary rules was a fiction, and it was a bad fiction, and Parliament did away with it in 1948. The employer is now liable for the acts of his employee in injuring a third party or a fellow servant. I think that that is quite right, but it is wholly different from making an employer liable, not for the acts of his own servant done in the course of his employment, but for the acts of a third party, a manufacturer, over whom the employer has no control whatever, and for whom he could not possibly have any responsibility.
I hope that if the Bill receives its Second Reading, and goes to Committee, some of the criticisms which I and others on this side of the House have made may be remedied in Committee, but I find it difficult to see how, as the Bill stands, this matter can be put right. It seems to me to be an irremediable fault in the Bill that it is making persons responsible for acts which are none of theirs and for which they have no fault.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bits).