§ Order for Second Reading read.
§ 11.22 a.m.
§ Mr. Arthur Probert (Aberdare)
I beg to move, That the Bill be now read a Second time.
May I first correct two typographical errors in the Bill. In paragraph 3 of the Explanatory Memorandum,Clause 2 and Schedule 2should read:Clause 2 and Schedule 1".In the fourth paragraph of the Explanatory Memorandum, the phrase… the necessary transitional provisions are contained in Clause 2 and Schedule 1.should read:… the necessary transitional provisions are contained in Clause 3 and Schedule 2.I apologise to the House for those errors.
Before I deal with the Bill I should also like to express my deep apologies for its legal complexity, certainly after the very hectic moments of last night. But I am persuaded by my legal colleagues that the matter of limitation is very difficult to legislate upon. Further, I have been advised by the highest authority that the proposals as drafted in Part I are necessary. Who am I as a layman to spurn such advice? My only defence in presenting the Bill is that a layman is often naïve enough to think that a common-sense approach to the effects of the law, as it is, is part of the spur that gets the law changed to something better. I have been aware for some time, as have many of my colleagues on both sides of the House, of certain anomalies in the Limitation Act, particularly as I represent a highly industrialised constituency, where the incidence of industrial disease and industrial accidents is high.
I shall not make a long speech, because many of my colleagues on both sides will wish to take part in the debate. I admit that the truth is that the shorter my speech, the less likely am I to reveal my ignorance of the law as it is. I have asked my hon. Friend the Member for Pontypool (Mr. Abse), if he succeeds in catching the eye of the Chair at an appro- 1120 priate time, to try to answer points raised in the debate that require answer. That will allow me to deliver a more orderly address on the Bill and it will avail me of the extensive experience of my hon. Friend, to whom I am deeply indebted for the assistance he has given me in preparing the Bill.
It will be apparent that although the Bill is divided into three parts there is a thread, however slender, of common interest running through it. It deals with the "when" and "how" of the amount of damages which may be assessed in claims for damages for personal injury, and for claims in respect of a person's death, where such claims can be sustained.
Part I amends the Limitation Act, 1963. Part II provides that where there is a claim for damages for a surviving spouse her remarriage prospects shall be disregarded in certain circumstances. Part III attempts to put in explicit terms the interest which may be charged in the assessment of damages.
It will be obvious that Part I is by far the more complex in its attempt to replace or amend the existing law. But I believe that if I am forgiven for ignoring the legal arguments and requirements I can put the position simply. The Bill will extend the period within which a claim may be made. It will extend the period of 12 months from the date on which an injured person has acquired knowledge of the facts relating to the cause of action to a period of three years, and provide the same period of three years for a claim on behalf of the estate and/or dependants of a deceased person from the date of his death.
In many ways it is that second provision that has struck me as vital from the experience I have had of widows suffering in consequence of the existing legislation. The present position is that a widow is given no more than 12 months from the date of her husband's death to make a claim. I stress that it is the date of her husband's death and not the date on which she was made aware of the circumstances which brought about his death.
I am glad to see two of my lady colleagues present, my hon. Friend the Member for Holborn and St. Pancras, South (Mrs. Lena Jeger) and the hon. Member for Birmingham, Edgbaston (Mrs. Knight), because they will appreciate 1121 what I am about to say. The widow is often in a state of shock on the death of her husband. Often, too, she is of an age when it is difficult for her to become aware of her rights. We all know that a widow more often than not cannot be consoled at the time of her husband's death, quite apart from discussing with her how her husband died.
Time quickly elapses, and she hears rumours that her husband may have died as a result of an industrial disease or accident due to negligence of breach of duties by his employers. I have been told of a widow who had such rights for claim having to be admitted to hospital suffering from shock on her husband's death and being there for a considerable time. I need hardly elaborate. One does not need a great deal of imagination to see the position. The House will agree that a considerable and vital time may elapse before she hears that she should approach the union branch secretary or a solicitor directly.
The case of Lucy v. Henley, which I shall not elaborate, has shown how rigid is the interpretation of the 1963 Act. I think that it is that case that has spurred a number of us to consider altering the existing provisions. In any case, if three years is permitted as the time in which an injured person may claim, uniformity should prevail, and the widow should be given the same rights.
I could present all the arguments in the Report of the Law Commission on the Limitation Act, which was, coincidentally, published the day after I had deposited my dummy Bill in the Public Bill Office. But I should be wearying the House if I were to do so. Suffice it for me to say that that report recommends the extension of time to three years. In the case of a claim by an injured person, the reasoning behind the three-year limitation period applicable to personal injury cases under the Limitation Act, 1954 is that three years is a sufficient period for the mounting of a claim. I suggest that if it is accepted that an injured person who has remained ignorant of his rights should be allowed an extension of the normal time, then by the same reasoning as is behind the provision of three years in the 1954 Act, he should also be allowed three years from the date at which he became aware of his rights.
1122 In Part II of Schedule 1 provision is made to extend the effects of the Clause to Scotland. I confess a great deal of temerity in doing this especially to my fellow Celts, but I thought that if England and Wales can obtain any advantages from this Bill, why should not Scotland? I am given to understand from conversations with my Scottish colleagues that they feel that it may not go quite as far as the Scottish Law Commission recommended, and naturally I defer to their better judgment. My information from other sources is that the Bill does what was recommended by the Scottish Law Commission. However, I suggest that my Scottish colleagues might wish to look at this matter in Committee, if the Bill receives a Second Reading, and they might wish to put down suitable Amendments.
Paragraph 3 of Schedule 2 contains transitional provisions which are necessary to enable those whose causes of action have accrued before the Bill comes into force and who fulfil certain conditions to take advantage of the Bill. Schedule 2 also provides for the Bill to cover pending actions and also enables leave to be obtained in such cases, even though the action has already commenced. The Bill does not, however, enable a case to be reopened on the ground that the new limitation period would have enabled the plaintiff to succeed where a decision had already been reached. This follows the procedure laid down in the 1963 Act.
I turn to Part II of the Bill, which has created a great deal of interest in the Press. I have had a good deal of correspondence from women's organisations, soroptimists, women's institutes, and others commending this Part of the Bill to the House. Part II provides that in a claim for damages by a surviving spouse her remarriage prospects shall be disregarded and only those facts which can be shown to have existed at the date of the death of the deceased shall be taken into account.
I base my proposal on two main grounds. First, the Report of the Committee on Personal Injuries Litigation, under the chairmanship of Mr. Justice Winn, published in July, 1968, said in paragraph 378:We are well aware and we have had passed on to us from your Lordships' office correspondence demonstrating that representative bodies concerned with the welfare of 1123 women are gravely dissatisfied with the present practice … of forming a judgment as to whether there is a probability that the individual widow will remarry and, if there appears to be such a probability, of forecasting when this may happen.In paragraph 379 the Committee says:We are unanimous in expressing the definite view that the law should be so changed as to obviate the continuance of the present practice.I do not suppose for an instant that Clause 4 will be all that is required to accomplish the recommendation of the Winn Committee and I have inserted the words:… there shall be taken into account only those facts which can be shown to have existed at the date of the death of the deceased.in order to satisfy any fears that may be expressed by some of my legal friends.
The second ground—and this is very important—concerns all the human problems associated with the present position in law. Two hon. Ladies are present, and I hope that if they have an opportunity to take part in this debate they will be able to describe the humiliating and degrading position in which a widow finds herself when confronted by a judge who has to make an assessment of her chances of marriage. It may be irrelevant, but we should also spare a thought for the judge in this embarrassing position, as wise as he may be. After all, who is he to decide on a woman's eligibility for marriage? It is not true that all gentlemen prefer blondes. I married a brunette and I am very happy that I did so. How often have we all heard the expression, "What on earth did he see in her to marry her?" May I say, without wishing to be blasphemous, that God often moves in a mysterious way, but the ways of man and woman are even more mysterious. No one, not even Freud, whom my hon. Friend the Member for Pontypool is so fond of quoting, can explain the mutual attraction of certain men for certain women, particularly when that attraction leads to marriage.
I will not spend much more time on this matter, but before I leave it I wish to refer to an unpleasant aspect that arises in consequence of a judge having to decide upon the prospects of marriage. This can best be described by quoting from a letter from a father-in-law in 1124 regard to such a widow. He says—and this occurred in Monmouthshire—My daughter-in-law, who was left with two children—one thirteen months old when my son was killed and another born seven months after his death—has been greatly distressed by inquiry agents employed by the insurance company concerned in the claim for damages. They have watched the house for long periods and questioned her neighbours when she has gone out, about her mode of life 'Has she a job?' 'Has she lodgers?' 'Has she men friends?' 'Is she living with anyone?' and other questions of the same type. My daughter-in-law's reaction was 'People will think I am involved in some filthy divorce case'. I understand that it happens very frequently in such cases. Is it not a blot on British justice and a grave injustice to women?The fact that judges do presume to guess the probability of remarriage causes insurance companies to institute inquiries of this kind and also to delay settlement as long as possible in the hope that the widow will be forced by financial circumstances to accept damages far below that which she should receive or even resort to remarriage solely as a way out of her financial difficulties.That letter clearly illustrates the problem.
Part III of the Bill deals with the interest on damages. I am again guided in my proposals by the recommendations of the Winn Report, and I will give the paragraphs concerned, namely, paragraphs 234 and 235, rather than quote them. Paragraph 235 outlines in explicit terms the rates of interest to be charged in respect of damages for personal injury. I have included the same principles for application in respect of fatal accidents. The Administration of Justice Act 1969 has proved, in effect, that the discretion left to the judge could mean inequality of treatment as between one case and another. I believe that something more explicit must be written into the law to allow fair treatment all round.
In conclusion, I must express my appreciation of the help I have received from the Lord Chancellor and his Department. This help was freely given, and without it I could not have attempted to frame Part I of the Bill. I repeat also my gratitude to my hon. Friend the Member for Pontypool and my thanks to my supporters on both sides of the House. I trust that the Government spokesman will intervene at an appropriate stage. I shall listen carefully to what he says and I will consult with my hon. Friend the Member for Pontypool in regard to any assurances which my supporters and J may agree to give.
1125 I am fully conscious of the fact that I have over-simplified my presentation of the Bill and what it proposes, but I am presumptuous enough to think that, as a layman, this will be my best tactic, leaving it to the lawyers to disentangle the legal knots that I may inadvertently have created. I commend the Bill to the House.
§ 11.40 a.m.
§ Mrs. Jill Knight (Birmingham, Edgbaston)
I think that hon. Members on both sides of the House will wish to congratulate the hon. Member for Aberdare (Mr. Probert) on introducing the Bill and on doing so in his customary modest, gentle, and yet extremely efficient manner. It is pleasant, after the exigencies and hostilities of the night, to find an atmosphere of unanimity and sweet reasonableness dawn upon the Chamber this morning.
I am particularly anxious to support Part II of the Bill dealing with damages for widows. We need not use much imagination to appreciate that for a woman to lose her husband in a fatal accident must be a terrible experience. The hon. Member for Aberdare spoke of this and of a wife's shock. Indeed, many women suffer grievously from shock. This is not a condition which disperses quickly in such circumstances. It will certainly continue for weeks, probably for months, and possibly for years.
At such a time the widow must also face what may be the worst financial worries of her whole life. She may have young children, and therefore it is not easy for her to go out to work to keep herself and her children. Perhaps insurance has been inadequate.
At all events, the widow will then wish to claim damages from whomsoever caused the fatal acdident. The law requires the judge, who certainly finds his task distasteful, to assess damages. An important part of that assessment is whether, in the judge's opinion, the widow has prospects of remarrying. The law is not just being an ass in this instance; it is being utterly callous. To subject a poor woman, who has already suffered greatly, to the ordeal of standing up in court, like a houri in an eastern slave market, or a horse at a bloodstock auction, for some man to assess her personal charms is the most humiliating and cruelly degrading practice in the whole of our 1126 judiciary system. We do not even subject the most hardened criminal to such cruelty. No other section of the community has to submit to such barbarous treatment in court.
Imagine the feelings of the widow of whom a judge, quoted in The Times, said:She would be fortunate indeed if she did marry. But, being realistic, one must assess the chances as low.Poor woman! That was said in court. I do not know whether the judge made that observation because she had several children or was perhaps at an age when she might not be thought to be readily or easily marriageable. It may have been that her style of beauty did not commend itself to that judge.
As the hon. Member for Aberdare said, this is a most extraordinary arrangement because of the multiplicity of choice. Indeed, human nature being what it is, men and women being so different one from another, if it were not that a woman to one man is appealing and to another may be appalling, the human race would not have existed so long.
The Conservative Political Centre, in March, 1969, produced a document called "Fair Share for the Fair Sex". On page 15, it states:Thus at present a judge is required to assess the value of the widow's likelihood of remarrying on the theory that her dependence on her late husband would cease on remarriage, and on this basis to reduce what would otherwise have been rewarded. Such an assessment, which the judges often find so difficult as to verge on the impossible, undeniably involves an affront to the dignity of womanhood at a peculiarly inappropriate time in a widow's life.That thought has obviously struck the hon. Member for Aberdare, because he has enshrined it in his Bill. I support it most warmly. It is absolutely right, it is fair; it is, indeed, long overdue.
Although this document is not a Conservative manifesto, nevertheless, I hope that my party, in office, will support the Bill in this regard.
I am told that the judges themselves object strongly to this barbarous practice. As a matter of fact, there is a rumour—I do not know whether the hon. Member for Aberdare has heard it—that already it has become case law that the judges will no longer apply themselves to this task. I have sought diligently through the Library and through 1127 Press cuttings, but I find that it is only a rumour; it is not true at all. It is certainly true that the judges find this task distasteful and would, I am sure, be only too glad to have it removed from their shoulders.
But even if it were to become case law, it would still be absolutely vital that it be made statute law. Surely if it were only case law, any decision could easily be reversed on appeal. If a concept is wrong it ought to be recognised to be wrong in the laws of the land.
I come to the point where some people would indeed still argue that it is not wrong. They may say, "But is it wrong? When you think about it, a woman might get substantial damages and be married again within the year." So she might. On the other hand, she might not. Justice ought not to depend on the use of a crystal ball. Whether or not a woman remarries does not alter the culpability of the person who caused the fatal accident. It is absurd to cling to a rule which means in practice—when one spells it out the stupidity of it is apparent—that if one is going to knock down and kill a man it is essential to pick one with a pretty wife, because it will not be nearly so expensive.
If one continues to follow that train of argument, to pick a man with a pretty wife, it is better to kill him, not just to maim him, because the latter could cost a great deal. Therefore, one should do the job properly. That is how ridiculous it is. The same person making the same argument might say, "If you collide with a man who has an ugly wife and four children, heaven help you." Stating that as a bald fact shows how stupid the situation is.
The other argument and difficulty about assessing damages after a man has been killed in an accident is that the widow may have been living apart from her husband at the time of his death. Again I refer to "Fair Share for the Fair Sex" because this thought has also struck those who compiled it. On page 17, it states:We recommend that in assessing damages under the Fatal Accidents Acts the Courts should be entitled to take into account only those facts which can be shown to have existed at the date of death of the deceased and that any subsequent evidence of the 1128 claimant's remarriage prospects should be disregarded.There we have it in a nutshell.
The hon. Member for Aberdare has enshrined precisely the same concept in Clause 4, which clearly states that:only hose facts which can be shown to have existed at the date of the death of the deceasedshall be taken into consideration.
The point here is that what ought to be taken into consideration is the degree of dependency of the widow on the man at the time he was killed. That is the crux of the matter. If that were clearly enshrined in statute law, there would be no question but that if the woman was living with another man at the time of her husband's death it would be right and fair for that to be taken into consideration, because her degree of dependency on her husband at the time of his death would have been very small indeed. That is clearly enshrined in the Clause, and it therefore seems to me that the whole Clause is a very well-written part of an extremely necessary Bill.
I have immense pleasure in being one of the sponsors of the Bill. I again congratulate the hon. Member for Aberdare, and I commend the Bill to the House.
§ 11.51 a.m.
§ Mrs. Lena Jeger (Holborn and St. Pancras, South)
I am glad this morning to follow the hon. Lady the Member for Birmingham, Edgbaston (Mrs. Knight). I rarely agree with the hon. Lady, but this morning the agreement between the two sides of the House augurs well for this important Bill.
It is fair for the House to recognise that it is the law relating to fatal accidents, the law for which the House must take responsibility, which imposes on judges this difficult task, and, because the House is responsible for the law of the land, it is proper that this morning we should examine those aspects of it which, because of the burdens that we impose on judges, give rise to these unfortunate circumstances for widows claiming damages.
The present situation is not only cruel and unacceptable, but is, I submit, grossly inefficient. This is shown by the way in which, in many cases, the amount of damages is varied on appeal. In one case, the first court awarded a widow 1129 £28,000. Perhaps the judge on that occasion was not particularly attracted to the lady. The insurance company appealed. The judges in the appeal court obviously thought her more attractive than did the judge in the lower court, and they knocked £5,000 off her damages.
En another case, damages were reduced on appeal from £8,500 to £6,000, again showing how impossible and unrealistic the assessment must be. How is it that one judge can make it £8,500, and another judge can decide to knock it down to £6,000? I submit that this is an impossible auction atmosphere which is not conducive to good law, and it certainly is not humanity.
In another case, damages were reduced from £8,000 to £5,500. This was a young widow of 26 who had two children, and Lord Justice Davies said of her:It would be a matter of surprise if this young lady had not remarried by the time she was 30",and that was the basis on which he cut her damages from £8,000 to £5,500. This woman has no redress. If she reaches the age of 30 and has not remarried, she will not be able to go back to Lord Justice Davies and say, "You made a wrong guess. Please may I have the rest of the money?". I am trying to make the case that this is not a sensible way in which to administer the law.
In many instances judges themselves have frankly expressed their difficulties. I was particularly impressed by a statement of Mr. Justice Phillimore who, confronted with such a case, said:Am I to assess the lady on her appearance? If so, I should have to call in assessors and ask her to put on a bathing dress, because the witness box is calculated to disguise the figure.Am I to label the lady to her face as attractive or unattractive? If I have the temerity to apply the label, am I likely to be right?The fact is that this exercise is a mistake.It seems to me that this particular exercise is not only unattractive, but one for which judges are not equipped.Is a judge fitted to assess the chances of wishes of a lady about whom he knows so little and whom he has encountered for only 20 minutes in the witness box?I venture to suggest it is time that judges were relieved of the need to enter into this particular guessing game.1130 It is a guessing game and the House must recognise that guessing games do not make good law.
As far as I can remember, I was not inordinately or excessively plain when I was widowed 17 years ago, but I remember the clumsy and quite unacceptable sympathy of people whose first thought was to say, "You are sure to get married again". That is totally unpredictable, it is impertinent, and quite unacceptable.
What can we do? I think that my hon. Friend has done a great service by bringing in the Bill, but there is just one suggestion which I want to put before the House. I recognise the difficulties involved, but I put this forward in an effort to be helpful. I wonder whether it would be possible to consider awarding damages, not always in the form of a lump sum, but possibly in the form of an annuity, so that if the time came when a widow remarried, the damages would cease? If she did not remarry, they would continue.
I recognise that there would be difficulties in that. It would be difficult for insurance companies to have an openended commitment. There may, of course, be a need for adjustments of the sums concerned, in view of the change in the value of money, but this is a policy which is followed in other spheres. A war widow, or a widow claiming benefit under the National Insurance Scheme, is paid a steady sum, subject to remarrying.
It may be argued that my suggestion would be a disincentive to a widow remarrying when she had a chance of doing so because she would not want to lose the money. But that argument applies equally to the war widow and to the National Insurance widow. I think that that is rather a cynical attitude to adopt. If people want to get married, they do so, and there are many examples of widows having given up pensions to enjoy a second marriage. That argument is not tenable.
There may be serious legal difficulties about my suggestion. I think that the ideal would be for it to be possible for the court to award a lump sum in partial damages and then to make some regular payments available.
Whether or not that is a helpful suggestion, I do not know, but what I do know is that the present situation ought 1131 not to be allowed to continue. It is bad enough for the widow to have to stand up in court and hear all the details of the accident recounted. This must be extremely harrowing for a bereaved woman at a particularly vulnerable time of her life. It is ordeal enough for most women to go into a court at all, in any circumstances, and for a woman to have to stand up in court while a judge eyes her and makes his decision is totally unacceptable.
The logic of the situation is that, being entirely cynical, one ought to advise a widow who finds herself in that situation to go into court looking her plainest, not having been to the hairdresser for a month, wearing her oldest clothes, squinting, and leaving her false teeth out, in the hope that the judge before whom she appears is not kinky about women with no teeth or dirty hair.
I do not wish to appear too lighthearted about this situation, but the logic of it leads one to appreciate the stupidity, inefficiency and callousness of the present situation. Whether or not my hon. Friend's Bill can be accepted as it stands. I hope that the Government will be able to promise us some measure of reconsideration of this aspect of the law.
§ 12 noon.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
My hon. Friend the Member for Aberdare (Mr. Probert) is to be congratulated on utilising his luck in the Ballot to bring forward what, to say the least, is a very useful and necessary Bill. For a layman to tackle matters of this legal complexity is particularly praiseworthy.
Part I of the Bill contains three important provisions. Under the Limitation Act, 1939, a limit of six years was imposed in regard to all actions founded in simple contract or tort. The Law Reform (Limitation of Actions, etc.) Act, 1954 reduced that period to three years, subject to certain exceptions. The case against Jopling and Sons Ltd. illustrated the difficulty that arose with regard to exceptions to the rule. In that case, seven persons and the representatives of two others who had died issued writs claiming damages on the ground that they had contracted pneumonconiosis during their employment. The disease had developed over many years, and the fact that it was going to result in severe injury was not 1132 apparent in the early years. The employers were found guilty of breaches of their statutory duty under the Factories Acts. At the trial, in 1959, damages for all the claimants were assessed at £25,000; but because the actions had been commenced more than six years after the cause of action accrued they got nothing, despite the fact that they could not possibly have known what damage would be caused to them at the time, and also that they had commenced their actions within the statutory period after they had first learned that they had contracted the disease.
In the case of Cartledge against Jopling and Sons Ltd. the House of Lords held, in 1963, that only in a case where the resulting damage had been concealed by the defendant's deceit did the law provide for the time to run from the date when it became or ought to have been apparent to the plaintiff, and they therefore dismissed the appeal, but in doing so, they severely criticised the existing state of the law.
Then came the Limitation Act, 1963, which, as stated in Clause 1(1)(a) of the Bill, provided that the plaintiff had a further period of 12 months of the date on which all the necessary facts on which he founded his action became or might reasonably have become known to him. That cured the difficulty that arose in the terrible Jopling case. The Bill extends the time to three years. Clause 2 and Schedule 2 make corresponding provisionson behalf of the estate or the dependants of a deceased person.I welcome this extension. I agree with my hon. Friend the Member for Aberdare that it is necessary to extend the period, in the interests of justice.
I have some doubt about Part II—that is Clause 4—of the Bill. I recognise that considerable criticism has been expressed of the right of a judge, under the Fatal Accidents Act, in respect of a claim following the death of a person, to take into account the possibility of the remarriage of a widow. As we know, on many occasions judges have expressed themselves as having doubts on the matter, and have implied that it is a difficult and rather distasteful task to assess damages.
My hon. Friend the Member for Holborn and St. Pancras, South (Mrs. Lena Jeger) rightly pointed out that widows 1133 might come to court in dreadful garb, trying to look their worst in order to get he judge to increase damages.
We must remember that under the Fatal Accidents Act a widow who has suffered the loss of her husband is compensated for the pecuniary loss, as the dependant of the deceased. To assess such compensation is a difficult task in any case. If she remarries within the years that follow her husband's death her dependency will normally cease, and therefore the pecuniary loss that she has been suffering will also cease or be reduced. It is difficult for a judge to say that a widow will remarry.
I note that the Clause provides thatany subsequent evidence of the claimant's remarriage prospects shall be disregarded.Let us suppose that the widow has already remarried at the time when the action is heard. Is it clear that such a remarriage has to be disregarded? There is a much more serious objection. Let us suppose that when the husband was killed the wife was injured, or is a lady of mature years, and in the view of the judge is unlikely to remarry. If a judge were trying such a case today he would increase the damages by holding that there was little prospect of the widow's remarrying, but under this provision he must disregard the claimant's remarriage prospects. It might be argued that that provision would appear to operate to the detriment of a widow in the case I have instanced. I am sure that the promoter did not intend that possibility. I hope that the provision will be considered carefully in Committee.
I was interested in the suggestion made by my hon. Friend the Member for Holborn and St. Pancras, South. There are various ways in which the matter may be tackled. It is a serious matter and I hope that the Committee will look at it carefully. Something must be done about it.
Part III of the Bill puts into statutory effect some of the recommendations of the Winn Committee on Personal Injuries Litigation, with regard to interest. I find the provisions in the Bill more complicated than those recommendations. The recommendations were intended to be guidelines upon which a court could act, and I suggest that these provisions should be carefully considered 1134 in detail in Committee. In paragraph 521 of the Winn Report the Committee said that in order to provide protection for the defendant who correctly appraises a situation, he is empowered to give notice to the plaintiff—dealing with liability or quantum, or both—and this should have an operative effect on the liability for costs. Paragraph 325(e) points out that by doing this he should be able to stop the accrual of interest.
The promoter of the Bill has inserted in Clause 5(2)(g) a much wider and wiser provision which enables the court to reduce the rates of interest and the period if the claimant is shown to have been dilatory or to have refused a reasonable offer.
I am sorry that the opportunity has not been taken to deal with the definition of "dependant" under the Fatal Accidents Act, but has thought fit to deal only with damages to a widow under Part II.
Section 1 of the Fatal Accidents Act, 1959 extended the classes of dependant under the 1846 Act to include any person who is, or is the issue of, a brother, sister, uncle or illegitimate child of the deceased. This definition is restrictive and has resulted in many hard cases. May I instance just two actual cases?
A husband whose wife had left him was, with his disabled son, living with the wife's parents. The husband was a traveller. When with them, he paid them £5 a week and £5 towards his son's keep. When he was away travelling, he paid the £5 for his son and a little less for them. This went on for many years. He was killed. The wife's parents, now old-age pensioners, had little means and were clearly partially dependent upon him. The disabled boy has a claim; they have not.
The second case is of a woman living with a man for many years but not married to him. She herself may be unmarried or married to someone else and awaiting a divorce. There are two children, and the elder is illegitimate, not the son of the man she is living with and not adopted. The second is illegitimate, but the son of the man she is living with, and all of them are dependent on the man. He is killed. The second son has a claim. The woman and the first son, who were entirely dependent on him, have no claim.
1135 I am sure that the House will agree that hardships of this kind should be remedied. It could be done simply by enacting that any person to whom and for whose benefit the deceased has been making regular payments or contributions for their support and who could reasonably have expected, but for his death, that such payments would continue, should be held to be a dependant within the meaning of the Act—or words to a similar effect. I hope that it will be possible to deal with this matter in Committee.
With these reservations, I support the Bill and look forward to its passage.
§ 12.12 p.m.
§ Mr. Martin McLaren (Bristol, North-West)
I, too, congratulate the hon. Member for Aberdare (Mr. Probert) on introducing the Bill and the hon. Lady the Member for Holborn and St. Pancras, South (Mrs. Lena Jeger) and my hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight) on their appealing speeches. I think that the proposals in the Bill are fair and reasonable. This is one of a series of Bills passed in recent years extending periods of limitation and making it easier for plaintiffs to recover damages.
Perhaps there is a modern tendency to think that the plaintiff should always recover, and that if there is a rule of law which prevents him from succeeding, that is a bad rule, which should be abolished. After all, it is said that defendants usually have insurance companies behind them and that it is better that an insurance company should pay than that a plaintiff who has suffered misfortune should go unrewarded. Saying that, I should perhaps declare an interest, as a member of Lloyd's.
Judges are sometimes irreligiously described as either plaintiffs' judges or defendants' judges. The former tend to be sympathetic, while defendants' judges look whether liability has been established. Of the two classes, the defendants' judges are usually the better lawyers. In the end, we may arrive at a different system altogether, with a right to compensation for personal injuries through a State insurance scheme, without the need to prove negligence.
It is fair that if people did not know and could not have known the facts 1136 needed to establish their claim, the period of limitation should be extended, and that is one of the Bill's principal proposals. I also agree with the provision about remarriage and that it is distasteful that widows should be looked over in court to assess their prospects of remarriage.
However, I have some grave doubts about the wisdom of the other limit in Clause 4, which says:… in any action under the Fatal Accidents Acts … there shall be taken into account only those facts which can be shown to have existed at the date of the death of the deceased …The usual provision, surely, is that, in assessing damages, the court is entitled to look at the circumstances as they exist at the date of the trial. Even then, the court has to peer uncertainly into the future.
It would surely be very odd if the court had to look back to the date of the death of the deceased and to ignore any circumstances which had happened since. Suppose, for example, that the widow plaintiff had died by the date of the trial. What would then have become of her dependency? Or suppose that, by the date of the trial, the widow had already remarried? Should not that be taken into account? We should then be concerned not with remarriage prospects, but with a fait accompli.
There is a case which bears indirectly on this situation, called Curwen v. James, reported in 1963 Weekly Law Reports, Volume 1, page 748. That was a fatal accident case. The plaintiff widow remarried not before the trial but very shortly afterwards and before the time for an appeal had run out. The Court of Appeal there held that that new event should be taken into account.
Lord Justice Harman, whose recent death we all so much regret, said some things in his judgment which are very apposite:It seems to me that there is an important principle here involved and it is this, that the court should never speculate where it knows. That is a principle which is involved where there is a change in value in property, for instance.He then referred to an earlier case where the judgment stated:If the question goes to arbitration, the arbitrator's duty is to determine the amount of compensation payable. In order to enable 1137 him to come to a just and true conclusion it is his duty, I think, to avail himself of all information at hand at the time of making his award which may be laid before him. Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he calculate? With the light before him why should he shut his eyes and grope in the dark?Then Lord Justice Harman said:The principle is the same. Why should we, when we know that the lady has married, pretend that we do not know it and assess the damages, as we are assessing them anew here, on the footing that she may or may not marry? As we know the truth we are not bound to believe in a fiction.'So I think that we should revise those words in Clause 4 about relating back only to those facts which existed at the time of the death.
Subject to that, I support the Bill. Perhaps an agreeable by-product of it will be fewer claims for negligence against solicitors, who have a fatal tendency not to issue a writ until the claim has become Statute barred.
§ 12.21 p.m.
§ Mr. G. Elfed Davies (Rhondda, East)
Being a layman, I trust that the House will forgive me if I do not comment on the matters which were raised by the hon. Member for Bristol, North-West (Mr. McLaren).
I wish, at the outset, to congratulate my hon. Friend the Member for Aberdare (Mr. Probert) on his good fortune in the Ballot and on bringing this Measure forward. The Bill will be of great importance to many people and will, I trust, be wholeheartedly welcomed by hon. Members.
Being a layman, I will not delay the House on what is an extremely technical matter. I wish to raise only one point which is concerning the National Union of Mineworkers, which is naturally extremely interested in this Measure. It concerns the vast number of accidents the cases about which are hanging fire. This particularly relates to cases of pneumoconiosis.
The need for the 1963 Act to be amended was highlighted by the settlement in January of last year in the Pickles case. It is generally accepted that 12 months must elapse between the date of the settlement in that case and cases being brought. It is important, therefore, to 1138 ensure that there is provision for those whose cases fall between that time; that is, between the date of the Pickles case and February of this year. We must make sure that the position of these people is covered by the Bill.
May we have an assurance from the Solicitor-General that these cases are covered by the Measure as worded? If they are not, will he undertake to table an Amendment at a later stage to ensure that they are covered? Clause 3 partly deals with this matter in its transitional arrangements, but I would rather have the assurance of the hon. and learned Gentleman than rely on my reading of what is a complex Bill.
I am happy to be a sponsor of the Measure and I hope that it will reach the Statute Book quickly.
§ 12.24 p.m.
§ Mr. Ernle Money (Ipswich)
I congratulate the hon. Member for Aberdare (Mr. Probert) on bringing forward a wise, humane and valuable Measure. It is particularly pleasing from the lawyer's point of view because it has the blessing of being blessedly straightforward, especially compared with so much of our legislation relating to the administration of the courts.
Obviously the second part of the Bill will attract the greatest public interest, in that it deals with a matter about which real concern has existed for some time, both in the judicial and public mind. This point was dealt with movingly by the hon. Member for Aberdare and I agree—one has proof of this from the letters one receives and observations from the judicial bench—that the cattle market aspect of this situation is offensive to plaintiffs, who find themselves in an intolerable position through no fault of their own, and because it produces some very strange decisions indeed in law.
There was some wisdom in the misgivings expressed by the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzmann) about the way in which this part of the Bill is likely to be applied. I hope that those and similar misgivings will not be permitted to cut at the central point of the Bill, which is to get rid of the present intolerable state of affairs. However, I share the misgiving of my hon. Friend 1139 the Member for Bristol, North-West (Mr. McLaren) about the words in Part II:… only those facts which can be shown to have existed at the date of the death of the deceased and any subsequent evidence of the claimant's remarriage prospects shall be disregarded.I share his misgiving not for the reasons he adduced but because I fear words or saving provisions of that type. Although such saving provisions may be inserted with the best will in the word, when they fall into the hands of some of my professional colleagues—I say this without any disrespect—it is possible for them to open up a whole class of action which might result in the entire history of a marriage being raked over on the death of the husband.
I was particularly glad to hear what the hon. Member for Aberdare said about the activities of inquiry agents. The present state of affairs is completely intolerable and I look forward to seeing an end to the present set-up immediately.
I accept straight away the need for an extension of the period of limitation in this class of case, though there are other types of case which the hon. Member for Aberdare did not mention, though he spoke feelingly about those suffering from certain types of diseases. One can anticipate that this would apply to Reynaud's phenomenon. This type of eventuality should, perhaps, also be covered by the Bill.
My only misgiving on this score is that an extension of the period of limitation in any circumstances might in some cases act as a charter for the inefficient lawyer. I would, of course, have such a misgiving about any period of limitation, though I accept that in this case it is right that such a period should exist. However, I hope that it will be secured with a continuation of the judicial process which has applied over the years. I trust that there will be no letting up in the increased pressure that is placed on the legal advisers of plaintiffs in the form of the dismissal of applications for want of prosecutions. This is happening now in the High Court. I trust that it will continue because we do not want to be in the intolerable position of prosecutions failing because it is virtually impossible for the High Court judge to try a matter as a result of the case going stale in the minds of witnesses.
1140 While I therefore accept the need for a period of limitation, I doubt whether there will be any benefit from a general extension of the period. This is one advantage of retaining the present aspect of the law, so as to obviate a matter which counsel so frequently meets; of being handed papers which are delivered at the last moment along with the discouraging remark, "Counsel will see from the date of the accident herein that the period of limitation runs out in three weeks' time. He will please deal with it immediately in consequence."
This is one aspect of the law for which the whole profession has been very much to blame over the years and on which the public expects that there should be a considerable tightening up. I hope that there will be an extension in the future of what one might call "the test case". So often one has a series of cases, such as the unfortunate thalidomide children, and matters of that sort, which could be dealt with on the question of negligence in one action. One would hope that, on the prolix issue of different writs by different complainants, by establishing a common interest at once and by a consultation of actions, the amount of preliminary work and the action which takes place in front of the courts could be reduced.
Part III of the Bill is very valuable. It will act as a spur to the law as a whole and, because it refers in essence to personal injury and fatal accident schemes, to those insurance companies who sit, always quite deliberately, and settle only at the door of the court. One has seen that type of case over and over again. The list for civil actions, particularly at assize, has become intolerably weighed down with cases which were never to be tried before a judge and which become desperate last-minute discussions at the door of the court, with no benefit to either of the parties, especially the unfortunate plaintiff who has had to wait an intolerably long period sometimes for damages to which he or she is entitled.
I hope that in Committee some of the wording here will be looked at carefully. I am a little unhappy, for instance, on Clause 5(2)(g) about the provision that there should be a reduction in interest either in cases where the plaintiff has been shown to be dilatory—that is 1141 obviously a fair provision—or if the claimant has refused an offer subsequently found to be reasonable. Here one is dangerously close to an extension of the principle of the payment in, which is one of the matters which has caused more worry, perhaps, to practising lawyers than anything else. I have always found it the most unhappy aspect of civil actions of any sort for personal injuries, where one has constantly the spectre of the payment in hanging over the head of one's client. That is bound to sway one's judgment as to the amount which should properly be accepted in settlement. I hope that that provision will not become another matter which has to be taken into the mind of a plaintiff's legal advisers, having the effect of blackmailing them into settling when no settlement would be proper.
Subject to those misgivings, I welcome the Bill and congratulate the hon. Member for Aberdare (Mr. Probert).
§ 12.35 p.m.
§ Mr. Brynmor John (Pontypridd)
The Bill has commanded and will command general support in the House. As the only new Member who is privileged—I stress that word—to be a sponsor of the Bill, I should like to say that I think that the hon. Member for Aberdare (Mr. Probert) deserves the warmest congratulations.
The Bill will confer real benefit to the community. That benefit particularly arises in Clause 1, where the situation as in the case of Pickles and the National Coal Board is dealt with. In that case for the first time, men who had suffered from a disease which can properly be described as a living hell were shown that they were not without remedy in establishing responsibility for the contraction of that disease.
Inevitably, as a result of this sudden extension of the frontier of case law, many such cases are now pending. Unless this Measure is passed by the House there is a danger that, because of this sudden logjam, many deserving cases will be denied their rights under the law. Consequently, it is a Measure which must be welcomed.
I welcome Part II, which deals with damages for widows. If there is one word which might be taken as a consensus word for the existing state of the law about the assessment of damages and 1142 remarriage prospects, it is "distasteful", because there is an insoluble and intractable problem of how to avoid being a mere seer and at the same time how to avoid humiliating the person who has already suffered the grief of a death.
I am sorry that the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) is not in his place. I could not follow his argument in one particular. He said that it is difficult on this wording to comprehend some of the points. I do not take the technical point, but I cross swords with him when he said that an advantage would be lost if this right is taken away. We are faced with a reduction in a total sum of damages for remarriage prospects. If remarriage prospects are low, widows will not get an additional bonus. That is my hon. and learned Friend's error. I hope that he will reconsider that matter. In his absence, I say that in the kindest spirit and I know that he will accept it.
Despite my strong support of the Bill I should like to deal with some aspects which cause me a little anxiety. The hon. Member for Ipswich (Mr. Money) has spoken of his reluctance to extend periods of limitation. I shall not get involved in a demarcation dispute with him, but as one who practises on the other side of the legal profession I can assure him that it is not always a question of the dilatoriness of solicitors. It is very much a problem that many persons even now are generally unaware of their rights under the law. It is right that we should try to make the law regarding the limitation on actions as uniform and as comprehensive to members of the general public as possible. There is no good purpose to be served by making the limitation periods so varied that they become a legal minefield.
A point which I want to make, and one which I hope can be taken up in Committee, is the problem; of where the defendant in an action dies, because the present limitation period in connection with this is six months from the taking out of letters of administration. This, without any lack of diligence, can provide the most fearful hazard.
§ The Solicitor-General (Sir Geoffrey Howe)
The hon. Gentleman was kind enough to mention to me that he would refer to this point. Law reform proceeds so fast these days that one cannot be 1143 certain that one is absolutely right, but I understand that the rule to which he is referring was amended by the Proceedings Against Estates Act, 1970. Thus, the former necessity for commencing proceedings within six months of the taking out of letters of administration has been replaced by the ordinary rule. That is as I understand the position. I cannot identify which Member of which House it was who had the good fortune to sponsor that reform.
§ Mr. John
I thank the Solicitor-General for that intervention. This will have been a worth-while exercise if it publicises only that development in the law and brings it to the attention of people.
Clause 5 deals with interest on damages. I have two anxieties on this matter which come within subsection (2)(d) and (g). There are genuine reasons why in some cases actions are not set down within 18 months of the date of the accident. It may be that the trade union organisation to which the plaintiff belongs has been engaged in negotiation; it may be that the legal adviser has engaged in negotiation and therefore does not set the matter down within that period; it may be that the plaintiff himself is unaware of his rights. To put a period of 18 months after the accident and say that, from that date, no interest shall be payable until the setting down, causes penalty upon the injured person concerned. I would welcome a rendering consistent of this provision to give him discretion, so to speak. In many circumstances it would be unreasonable to penalise the plaintiff for failure to set down in the time. I commend that suggestion to the House.
On subsection (2)(g), my concern is in part reflected by the speech of the hon. Member for Ipswich, because the claimant may have refused an offer subsequently found to be reasonable upon grounds which at the time of the refusal appeared to him to be reasonable. Secondly, where the claim is shown to be dilatory, again I fear that this may equate the claimant with his legal adviser. I would welcome an Amendment which would make it applicable that a rejection will take place only if the claimant himself is shown to be personally dilatory in taking up his rights for no good reason.
1144 But these are properly matters for consideration in Committee, so I conclude by saying that I welcome the Bill, admire it and commend it to the House.
§ 12.43 p.m.
§ The Solicitor-General (Sir Geoffrey Howe)
I join in congratulating the hon. Member for Aberdare (Mr. Probert) on his good fortune in securing a place in the Ballot and taking the opportunity of introducing a law reform Measure of this kind. Also, without in any sense, I hope, seeming to exercise a lawyerly type of patronising approach to the matter, I congratulate him on the great skill and lucidity with which he presented the arguments for this very human package of law reform measures.
The hon. Member for Rhondda, East (Mr. G. Elfed Davies) almost apologised for intervening in what appeared to be a lawyers' field day. I hope that it will never come to the day in this House when that kind of apology is called for, because the law is for laymen and lawyers must listen to laymen and, indeed, as my hon. Friend the Member for Ipswich (Mr. Money) pointed out, to the anxieties of laymen about the dilatoriness and inadequacies of the law. This House is one of the places in which law and laymen are brought into contact with each other, and it is right that that should happen.
There is something almost appropriate, I suspect, in the fact that the hon. Member for Aberdare should have the good fortune to advance and improve the 1963 Act, which was founded upon the recommendations of the Committee presided over by Lord Justice Edmund Davies, a "Mountain Ash boy who made good in the law", and it is significant that so many hon. Members from Wales—the hon. Member for Pontypool (Mr. Abse), the hon. Member for Rhondda, East, the hon. Member for Pontypridd (Mr. John) and the hon. Member for Aberdare himself—are taking part in the debate.
As a "Port Talbot" boy myself, I may make a modest claim in the same direction. My father was coroner for West Glamorgan and he dealt with very many tragedies of industrial life in that part of the country. One remembers from those days some of the terrible dust diseases which have been the scourge of the mining industry. This subject is therefore something in which the whole House has a genuine interest and it is 1145 a welcome provision in Part I that extends the period within which claims may be brought under the 1963 Act.
As the hon. Member for Aberdare said, this is of particular importance for the widow. He was supported in this by the hon. Lady the Member for Holborn and St. Pancras, South (Mrs. Lena Jeger). The problem of the widow who does not have knowledge is one of the matters dealt with in these provisions. The Government manifestly welcome the alteration in the law put forward in this Part of the Bill.
I was asked by the hon. Member for Rhondda, East to deal with the question of cases where proceedings are now being started, where the facts also subsist, and what is the impact on these pre-existing cases of the provisions of the Bill as it stands. I have studied it myself as far as I can and have also taken advice. I understand that, under the provisions of Schedule 2, such cases—that is, those cases where the facts now exist and which might be caught adversely by the present law—will be able to take advantage of the provisions of the Bill, with the exception of those in which final judgment has already been recorded, as the hon. Member for Aberdare pointed out. The hon. Member for Rhondda, East can be reassured in that respect. This is important in the light of the backlog and build-up of cases that is taking place.
I turn to that Part of the Bill which deals with the assessment of damages under the Fatal Accidents Act. Some hon. Members—and I suppose that this will always be the case—expressed the hope that the Bill would reform many other aspects of the law which require reform. The hon. Member for Holborn and St. Pancras, South discussed the possibility of annuities in place of lump sum damage awards. I was a member of the Cripps Committee which considered this matter. We found that, like most matters of law reform, it is not as easy as it looks. I feel that this is not the time at which or the vehicle in which a fundamental reform of that kind could be embodied. Nevertheless, it is right that her suggestion should be discussed in this kind of debate.
The hon. Lady was even more anxious when she criticised the fact that appeals in this class of case take place as often as they do. It is right to say that, in this class of case, a change of mind by 1146 the judiciary at different levels underlines the lottery element of the present system of awarding damages to widows. It would be asking too much to expect the risk or prospect or possibility of appeals to disappear altogether so long as we depend upon human beings rather than upon computers to try our cases. But, within the narrow context of this Part of the Bill, it is plain, as all hon. Members have agreed, that the present system is unattractive. It has scarcely found a voice to defend it on either side of the House. It is unattractive certainly to the widow and certainly in so far as it involves the activities of inquiry agents. It is also unattractive to the court.
My hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight) discussed the possibility that the courts might have already eroded the present provisions. One learned judge—I think it was Lord Justice Phillimore—tried to escape by pioneering reform of the law. Unfortunately, he was brought back into line by the Court of Appeal subsequently.
Finally, it is unattractive to advisers. I have always found it unattractive to have to ask my instructing solicitors in this kind of case whether they considered the way in which the widow was likely to present herself to the court lest she should appear too attractive and thereby impair her recovery of compensation.
It becomes more difficult when one looks at the right way in which to produce reform. We considered, in the light of the Cripps Committee, various alternatives, and it is right that we came down in favour of the one embodied in this Bill, but the Winn Committee, when it looked at it, could not agree on an answer, and it is certainly right, as several hon. Members have pointed out, that this proposal, in which one has regard solely to the facts existing at the day——
§ Mr. Leo Abse (Pontypool)
It is not quite right to say the Winn Committee could not agree on an answer. It unanimously, as my hon. Friend stressed, wanted to be rid of this, but said that under the procedural terms of reference which it had, it could not devise an answer.
§ The Solicitor-General
I think that that is right. It certainly said, even as to procedure, that it could not agree on how 1147 to set about it, and I suspect that it regarded the substance as outside its terms of reference. I merely cite it as an illustration of the fact that not all is easy in this field, and several hon. Members have pointed out that there are, in the proposals embodied even in the Bill before the House, difficulties which were not, I confess, apparent to me when considering this as a member of the Cripps Committee. The more one looks at these things the more complex they become.
This proposal certainly involves, as the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) pointed out, an unrealistic element for compensation for the widow who has remarried by the date of the trial. So it is imperfect. It may be that we shall almost have to have an imperfect system. If one were to look at it in the light suggested by my hon. Friend the Member for Edgbaston and consider only the degree of dependency at the date of death, one would exclude the situation where at the date of death the widow was working and the death of her husband leads to a breakdown in her own health and she can no longer remain at work, so that her dependency would thereby have been increased. But one could not take account of that. There is also, of course, as my hon. Friend the Member for Bristol, North-West (Mr. McLaren) pointed out, the case where the widow has died between the death of her husband and the date of the award.
I mention these matters not because I wish to challenge the principle—it would be hard indeed for me to do so—but to lead up to this point: this very matter is now among those being considered by the Law Commission very closely. The Commission is taking account of views which have been expressed by many bodies, expressed by the women's representative organisations, and expressed by Members of the House. I remember the proceedings on the Administration of Justice Bill in 1965 when the same matter was considered. It may be that, when this Bill gets to Standing Committee, if it does, the sponsors of the Bill will consider that, however well supported in general terms this principle is, it might be prudent to await the final and con- 1148 sidered deliberations of the Law Commission. It is not my temperament, nor something to which I come happily to argue, to defer any reasonable measure of law reform, but I do see here, and the House may share this view, the necessity of ensuring that a matter of this kind is well and properly done, and it may well be therefore that at the same time the question of dependence, which the hon. and learned Member for Stoke Newington and Hackney, North raised, should be considered. It is a matter at which the Standing Committee would, no doubt, look in connection with this Bill.
Finally—and I wish to take no great time about this—we have Part III of the Bill, the proposals for changing the principles by which the courts assess interest on damages. In the light of the recent statutory change and the decision of the Court of Appeal in Jefford v. Gee, it appears to the Government—and I must confess that the more one looks at it the more it seems a commendable view—that the principle suggested in Clause 5(2) of the Bill may tend to multiply the difficulties which face courts and parties on this matter, at least at this point in time.
The Winn Committee, it is true, suggested a reform in the law, and that reform is embodied in Section 22 of the Administration of Justice Act, 1969. If one looks at the relevant part of the Winn Committee's Report, and I do not want to weary the House with it now, one could argue that the Winn Committee wanted to enlarge the discretion in a general way and did not wish to have embodied in statutory form the procedure which is set out in Clause 5(2).
I know that some criticism has been advanced of the principles enunciated by the Court of Appeal, but it occurs to me, and it may well occur to the House, that the principles here set forward as alternatives are equally open to criticism, the more one looks at the detail of this, and the hon. Member for Pontypridd and my hon. Friend the Member for Ipswich both cited examples. If it is dangerous, as my hon. Friend suggested, to shackle the courts by saying that they ought to have regard only to the facts existing at the date of death, how much more difficult it might be to shackle the courts with all the matters suggested in Clause 5(2).
1149 Whilst one can recognise, and the Government do, that the working of Section 22 of the 1969 Act and the courts in the light of Jefford v. Gee certainly needs to be kept under review to make sure that they are going down the right road, it is the Government's view that it would be premature to legislate in this way on this topic. So that, too, is a matter which hon. Members who are sponsoring the Bill may like to consider when it goes to Standing Committee.
Certainly this Bill in its totality the House may wish to welcome enthusiastically—as, indeed, it has done; but in these two matters, compensation for widows under the Fatal Accidents Acts, and the assessment of interest, there may be room for further thought along the lines I have suggested.
§ Mr. Probert
Has the hon. and learned Gentleman any idea of the time when the Law Commission may be considering damages to widows and when it may be able to report? I can await a reply.
§ The Solicitor-General
I fancy that I would be better advised to check this, rather than utter a possibly inaccurate answer, but this has certainly been under the Commission's consideration for some time, and I know that at the time when the Cripps Committee's Report was published we then had a response from the Chairman of the Law Commission. This has been on its plate, and one hopes, therefore, that it will come off its plate in the not-too-distant future.
§ 1.0 p.m.
§ Mr. S. C. Silkin (Dulwich)
May I begin by adding my congratulations to my hon. Friend the Member for Aberdare (Mr. Probert) for taking upon his shoulders these extremely important and valuable matters and bringing them before the House in the form of a Bill. In introducing the Bill he made a most moving speech. He apologised for the fact that he was dealing with matters that are often dealt with by hon. and learned Members of the House although he himself made no claim to that title, but he will recall what the poet says:A little learning is a dang'rous thing;Some of us who may be entitled to call ourselves "honourable and learned" none the less have only a little learning, and in that respect he has the advantage over us, as he amply showed.
§ Mr. Silkin
I will.Drink deep, or taste not the Pierian spring:We also wish to welcome the Solicitor-General and express our gratitude to him, after the rough passage which he has had recently, and, no doubt, after a minimum of sleep, it any, for coming to the House to give the views of the Government. In addition to welcoming him, we may to some extent commiserate with him for having to do so, but at least he will be able to take consolation from the fact that it is a far far better thing that he does today than anything that he has done in the last few days.
The Solicitor-General drew attention to the fact that, not unnaturally with a Bill which contains the subject flatter of Part I of this Bill, it was to be expected that many hon. Members representing Welsh constituencies would feel it desirable to stay in Westminster rather than to return to their constituencies. He sought to place himself in that category by origin if not by constituency. I will not be outdone by that. I also am a boy from Neath—even if it was only a passing incident. I am glad, therefore, to be able to take up the cudgels in a matter which so much concerns miners everywhere and, in particular, those in Wales.
As my hon. Friend the Member for Pontypridd (Mr. Abse) emphasised, there is no doubt that the way in which the common law has developed over recent years in relation to diseases of the nature of pneumoconiosis has been wholly beneficial and desirable. It was a blot upon our legal system when it was believed that the horrible incidence of diseases of that kind could not give rise to a cause of action for damages for negligence. Once the principle was established, it became more important that a sensible system should be introduced for dealing with the question of limitation—what one might perhaps call the guillotine—operating on a claim as a result of the sheer ignorance of those concerned of their rights——
§ Notice taken that 40 Members were not present;1151
§ Sir S. McAdden
Is it in order for the hon. Member for Glasgow, Hillhead Mr. T. G. D. Galbraith), having called a count, to leave the Chamber?
§ House counted, and, 40 Members being present—
§ 1.7 p.m.
§ Mr. Silkin
Mr. Deputy Speaker, if it is in order for me to comment upon the procedure in which we have just participated, all hon. Members who have taken part in the debate and all but one who have listened to it, will feel that it is quite disgraceful that a Measure which has the general support of those who have spoken and of hon. Members generally should have been subjected to tactics of this kind. I certainly hope there will not be a repetition. In a Bill which is supported by hon. Members on both sides of the House it is a deplorable occurrence.
I was dealing with diseases such as pneumoconiosis which are dealt with in Part I of the Bill, and I had pointed out that delays are often due to a lack of knowledge of the facts and of the rights of the claimant. We should give every possible latitude to those who, through ignorance, possibly through a very affecting bereavement, which has been referred to in relation to Part II, are not placed in a position in which they can make a claim. I entirely agree with my hon. Friend the Member for Pontypridd that delays of lawyers ought not to be visited upon potential claimants. The principle involved in this Part of the Bill is much more important than the question of delays of lawyers, and this aspect will equally apply when we come to Part III of the Bill.
My hon. Friend the Member for Rhondda, East (Mr. Elfed Davies) referred to the question of retrospectivity. 1152 Like the Solicitor-General, I think that it is adequately dealt with in Schedule 2. I raised the point with the Attorney-General at Question Time, when he announced the Government's broad support for the Law Commission's proposals and promised to look into the question. I hope that the provisions of the Schedule will be carefully scrutinised in Committee to make quite sure that all possible retrospectivity is given, because that is a very important factor.
In relation to Part I, I would also draw attention to the desirability expressed by the Law Commission in its advisory report that the law of England and Scotland should be common, by which I do not mean that it should be the common law but that it should be the same. If there are any doubts about that, I hope that they, too, will be set at rest in Committee.
§ Mr. T. G. D. Galbraith (Glasgow, Hillhead)
Does the hon. and learned Gentleman mean that the law of England and Scotland should be the same only in respect of this Bill or is he suggesting wider changes, which might perhaps lead to the removal of the Court of Session?
§ Mr. Silkin
If the hon. Gentleman will take the trouble to read the debate on the introduction of the Law Commissions Act, he will see that I and many other hon. Members expressed the feeling that it is desirable that the law of England and Scotland should gradually become assimilated together. That was one of the purposes of the setting-up of the two Law Commissions. Which law, if either, is the better in any particular circumstances, is not for me to say.
I should now like to say a word about Part III, leaving Part II, which is perhaps the more contentious part, to the end. I think that the Solicitor-General recognised that the decision in Jefford v. Gee has created difficulty, and his problem was to consider whether the way in which the Bill seeks to solve them, by following almost entirely the wording of the proposals in paragraph 325 of the Report of Lord Justice Winn's Committee, is the best way of dealing with the matter. The provisions of the Bill have been approved as being more flexible than those of the Winn Committee, but the hon. Member for Ipswich (Mr. Money) and my hon. Friend the Member for Pontypridd (Mr. John) suggested that even now they are 1153 rather too rigid. If I understood correctly the Solicitor-General's remarks, this is probably generally in line with the Government's view that once we start to put these matters in a Statute, rigidity is a danger that we must accept. This question should also be looked at very closely in Committee. I hope that the Government will not take the view that because of the difficulties of improving upon the present situation nothing should be done about it in the Bill.
Although I would not for a moment suggest that the provisions of the Bill are the last word on the matter, they are better than the situation today, and I hope that they can be improved in Committee. I agree with my hon. Friend the Member for Pontypridd that it would be wrong to equate the claimant with his legal adviser in visiting upon him any penalty that there may be for delay. I hope that that principle will be followed.
Part II deals with the question of a widow's prospects of remarriage. This matter received the attention of the Winn Committee, which was unanimous that the present situation should be changed. I believe that the House will regard that as very significant, having regard to the composition of that Committee, which consisted of many distinguished people operating in this field in particular. They had no doubt that a change should be made, though they were unable to say precisely how.
My hon. Friend the Member for Holborn and St. Pancras, South (Mrs. Lena Jeger) suggested that wider issues are involved as to the way that damages generally should be allocated. I have a great deal of sympathy with her view. This point, too, was considered by the Winn Committee, which did not find itself able to support the suggestion that damages should be paid on an annuity basis. This matter should be carefully examined, because undoubtedly the present system is very hit-or-miss.
I agree unhesitatingly with those who have suggested that the present system of assessing a widow's remarriage prospects is unattractive and humiliating. In addition, there are two most important fallacies in the present law. Attention is drawn to one in paragraph 378 of the Winn Committee Report, which refers to the difficulty of 1154forming a judgment as to whether there is a probability that the individual widow will remarry and, if there appears to be such a probability, of forecasting when this may happen.This has been referred to extensively in the debate. We may well say that it requires deep psychological insight on the part of a judge to be able to make either of those forecasts. Even if he has it, he is highly likely to be wrong.
A number of hon. Members pointed out that one cannot go simply on whether a woman appears or sounds attractive. People marry for wholly different reasons, and they refrain from marrying notwithstanding that they are attractive, particularly when they have lost a very loving husband in a very happy marriage. Therefore, it would be quite wrong to assume that merely because a widow is young and attractive there is a higher probability that she will decide to remarry than a woman who is perhaps not apparently so attractive but who may have many more sterling virtues.
In addition, there is another fallacy to which attention has not been drawn during the debate—namely, assuming the widow remarries, whom will she marry? Is it to be assumed that a bereaved Lady Chatterley will marry someone of her own social class, if I may use that expression, or might she marry a gamekeeper? Who can foretell matters of this kind? Yet, the whole basis of a reduction in the damages awarded because of remarriage prospects must be on the assumption that the widow, on remarrying, will be put broadly into the same category of income and social statuts that she had before. That seems a highly speculative element which really makes the whole thing a complete gamble.
The hon. Member for Bristol, North-West (Mr. McLaren), I think generally accepting the argument, referred to the wording of the Clause, and particularly the effect of remarriage after the death of the former husband. I accept entirely that the wording requires to be looked at very carefully. Indeed, I am sure that it will be looked at very carefully in Committee. I do not think that my hon. Friend would wish to bind himself too closely to the text of the Cripps Committee of Conservative lawyers with which the Solictor-General himself finds difficulty.
1155 In my view, a great deal of consideration ought to be given to whether remarriage before damages are awarded should necessarily operate to reduce the damages which are awarded. We ought to look at that question in the light of other factors occurring after the death of the husband which do not get taken into account but may arise, directly or indirectly, as a result of the death. For example, a situation may arise where, simply because a woman has been widowed and may be suffering from hardship as a result, somebody leaves her a fortune in his or her will. That kind of situation is regarded as quite independent of the death and, therefore, not to be taken into account.
The whole question whether remarriage ought to be taken into account at all, let alone what is here involved—the prospect of remarriage—should be very carefully considered before the House assents to the proposition that that in itself ought to operate to reduce damages.
The Solicitor-General has indicated that the Law Commission will be considering these matters very broadly. I am certain that it will take note of everything said in this House. I am sure that it will also take note of the fact that not only did the Winn Committee unanimously take the view that the law ought to be changed, but that the burden of every speech but one which we have heard has been in favour of making a change from a situation which all regard as humiliating, embarrassing, illogical and unsatisfactory. Knowing how the Law Commission works, even if my hon. Friend the Member for Aberdare does not have the satisfaction of seeing this part of his proposal become law as part of his Bill, I am sure that he can content himself with the knowledge that a change in the law in this respect will not be long delayed. I congratulate my hon. Friend on bringing in the Bill.
§ 1.25 p.m.
§ Mr. Leo Abse (Pontypool)
I am grateful to my hon. Friend the Member for Aberdare (Mr. Probert) for permitting me to co-operate with him in formulating the Bill. The welcome which the House has given to the Bill means that, if it is its wish that this is the last speech, then, as someone winding up 1156 the task has become, because of the unanimity of the House, comparatively easy.
This proposal has come about because, above all else, the Bill is an attempt to bring in out of the cold widows whose late husbands have been the victims of industrial accidents. But it is important that it should be generally understood outside the House that the effects of the Bill are directed also to others suffering disabilities. The Bill seeks to reach out a helping hand to many other faultless victims whose working lives have brought them not the relief of death, but the affliction of continuing and painful disability. Inevitably this includes the category of workers employed in the most hazardous of occupations—mining.
I am sure that my Welsh colleagues will agree that it is little short of a national scandal that in 1971 the miner who contracts pneumoconiosis through no fault of his own, when the management has, in the most perfunctory manner, observed the extraordinary minimal safety precautions laid down by Statute, has still no right to damages in our courts. Although he has perhaps spent his working life in the pits and personally observed every safety precaution, when his lungs are turned to stone and he is coughing his last gasp, he cannot, as the law stands, claim a single penny by way of damages in our courts.
I suggest that this is an occasion for reminding many of those who pontificated so much when the miners recently demanded higher wages that certainly those of us who come from South Wales understand that it is not surprising that the overwhelming majority of miners in South Wales voted to strike for higher wages. Who amongst us would be prepared to go down those pits when the statistics reveal that each year in the South Wales coalfield the hazards of pneumoconiosis, far from diminishing, are increasing? There were more certifications in 1970 than in 1969. The whole trend over the last decade shows that although, with a declining working population in the Welsh coalfield, the overall certification has necessarily lessened, nevertheless, the number, if taken on the shifts worked principle, is significantly increasing.
It would doubtless be too radical a measure for a private Member to attempt, 1157 with any success, to overturn the present position and to insist that every man certified as having pneumoconiosis should have a right to claim damages unless the management could show beyond doubt that all precautions against injurious dust had been taken. Then, with the onus of proof thus reversed, we could begin to grant miners the rights which, ironically, are granted even in countries like South Africa. Then perhaps, too, with a less stricken conscience, we could seek to recruit the 8,000 miners now desperately needed to maintain our economy.
At least this Bill, which my hon. Friend has so usefully introduced, seeks to help to give aid to those miners who, after contracting a lung disease arising from their work, years later may become aware of facts which may give them some slight chance of obtaining damages in court because even the lenient duties imposed on management by the Mining Acts to minimise the effects of dust have not been taken.
My hon. Friends the Members for Rhondda, East (Mr. G. Elfed Davies) and Pontypridd (Mr. John) have both stressed that in January last year an action was settled out of court when the Coal Board made a payment to a ex-miner named Pickles who, having mistakenly thought that he had suffered from tuberculosis, later discovered that it was silicosis contracted in his earlier working life in the mines and that he may well have been able, had the case been fought by the Coal Board to have obtained damages for negligence of breach of statutory duty.
It would be cruel if as a result of the debate in this House it were to go out to miners who have contracted pneumoconiosis that they have now automatically a right to damages. That is not the position. The case of Pickles was unusual in its character. Because of that there was naturally much publicity throughout the mining industry in the spring of last year, and particularly in the unions of which many members are miners or ex-miners. It has been suggested that there may well be some 2,000 miners or ex-miners who during the last year possibly could have heard that they may make a claim such as that which I have mentioned.
1158 Already some of the unions are considering some hundreds of cases: and since under existing law many of these potential plaintiffs may be taken to have actual or constructive actions on the relevant facts from the time they learn of the Pickles settlement, in view of the serious hazards involved as the law stands if they have not obtained leave to commence their actions and if granted if they have not commenced within 12 months of the time they learned of the Pickles settlement. Yet to make an application for leave as the law now stands it is essential to obtain leave for the applicant and his advisers to collect the information needed to satisfy the vital conditions for leave to be given. That is precisely when and in what circumstances the applicant first acquired the relevant knowledge.
Moreover, the court requires that a draft statement of his claim is before it and this may mean, in an endeavour to show that there has been negligence or breach of a statutory duty, that far-reaching inquiries often prolonged and difficult, may have to be made. The plaintiff and his advisers will in those cases be compelled to trace witnesses who, if alive, may have long ago left the area. The mine may have closed down and all records and all people who could have helped the plaintiff may be widely dispersed. Justice demands that a plaintiff, faced already with these difficulties, and faced, certainly in the mining industry, with the special difficulties of ever being able to prove negligence in silicosis cases, should not have the additional difficulty of trying to get all his case mounted under the handicap of too onerous a time scale.
Clause 1 by extending the period from 12 months to three years covers the disabled man's date of knowledge of his possible claim as to when he can seek leave. This would ensure that a ligitimate claim will not crumble for want of time.
I have cited the present existing difficulties in the mining industry to demonstrate the need for this Bill. It should also be stated that the Bill is not simply a rescue operation giving first-aid to a particular group. It is also a Bill that bears in mind that progress in medicine and discoveries about the relationship 1159 between health and environment may well give rise in future to groups of plaintiffs bringing identical actions for personal injuries and diseases which at present are unattributable to a wrongful act or omission. It is important that if such cases arise, those affected should have the opportunity to present well-founded and well-investigated reasons why they should have leave of the court to pursue the action, though their disability arose out of employers' negligence many years previously.
If under the present law a man who discovers he is afflicted with an insidious disease brought about years previously through the negligence of his employers has too limited a right to ask the court for relief, the widow's position is still worse. If some time after he dies it is discovered by his widow that the husband's death was due to her husband's employer's negligence, unless she brings an action within 12 months from the date of his death she is undone. So if in her 13th month of widowhood she or solicitor discovers the facts of the cause of the death, it is too late. So it comes about that men who remain alive, albeit crippled by disease, can bring an action when they belatedly discover the cause, but the widows of the men who have died cannot. Scores of women whose husbands have died of bladder cancer and pneumoconiosis have in recent years been left out in the cold, while the workmates of their husbands who have managed—not without suffering—to survive the disease have received damages. Clearly, this Bill seeks to remedy those iniquities.
Although Part I of the Bill providing opportunities to a considerable number of injured people and widows to have a right where none existed before to commence actions is the weightiest part of the Bill, it is not surprising that great attention has been paid to Part II. I will not recapitulate the strong arguments advanced by hon. Ladies on both sides of the House. These were powerful advocates as to the need for change of the type with which the Bill deals. The right hon. and learned Gentleman the Solicitor-General served on the Cripps Committee, and he will know that that Committee advocated a need for a change in the law. Indeed, it must be unusual 1160 in the assistance I gave to the hon. Member for Aberdare to find that reforming Labour Members have been able on this unusual occasion slavishly to follow the exact words drafted no doubt by our able Solicitor-General when he served on the Cripps Committee. I would merely point out that the points raised express some concern that perhaps the Clause as drafted does not take into account all the variety of circumstances which may result.
The matter of the widow's damages seem to be based upon two facts. The first is the degree of dependence. I hope that when, as seems likely, the Law Commission looks at this matter, it will understand and take account of the great changes which have come about since the last century when the courts made awards which included the loss of prospective pecuniary advantages and had a totally different attitude to the position of a widow than that which has now been evolved by case law where inquiries are made upon the basis of weekly contributions made by the late husband to the household. Professor Street has complained of the cynical attitude by judges to working-class life and I would take his words to have great weight. The reasoning behind the present case law is that the wages which a man does not give to his wife he spends on drink and gambling. If that was ever a valid assumption it is certainly not the case at present, otherwise how can one account for example for the vast expansion in national savings?
I hope that the whole issue of dependence will be looked at by the Law Commission. It cannot be right to put the widows not only in the present humiliating position, but also to insist that regard to any accelerated gain should be taken into account, apart from certain statutory exceptions, when the judge decides what should be awarded to a widow by way of damages.
I think secondly that hon. Members who has stressed some difficulties about the Clause as drafted take an excessively romantic view. I suspect that even the hon. Ladies are looking at it from the point of view of the widow. When people say that perhaps after a year or two the widow may remarry, and she should not therefore have had the original sum, they are surely disregarding social needs within 1161 the community to assist and not to deter a widow to remarry?
I think that a widow with two children should be given every encouragement, and not have a disincentive, to remarry. I think that it should be possible for the law to encourage a widow to marry by creating a situation in which a man, looking realistically at the situation, will feel that if he marries a widow with two children he will not be taking on excessive burdens, and the widow herself will be able to feel that she is coming to the marriage, not as a drag, but as an equal partner. I believe that we should get away from the existing romanticism surrounding marriage and look at the matter realistically. We should so frame the law that a woman with fatherless children is encouraged to remarry and establish a new family.
I have only a few words to say about the final part of the Bill, which deals with the question of interest. I hope it is sufficiently appreciated that the motive, above all others, for this part of the Bill is that as matters stand there is, unfortunately, almost a compulsion for solicitors to advise their clients that writs should be issued speedily, and oft times unnecessarily, in view of the unfortunate Court of Appeal decision that interest should become payable only from the time of the issue of the writ.
This procedure has meant that trade unions are in some cases being called upon to issue writs by the score because they feel that otherwise they and their legal advisers may find themselves open to an action for negligence because interest which would otherwise have accrued may not accrue. The result is that there is a tendency for solicitors to abandon traditional forms of negotiation and to feel themselves compelled unnecessarily to rush into litigation. It is because we want to avoid unnecessary and excessive litigation that, whatever blemishes there may be in this part of the Bill, we hope that the Government will consider that point above all else before we come to the Committee stage.
My hon. Friend has done a great service in bringing in this Bill, and the sponsors on both sides of the House, who have given my hon. Friend so much help, as he has readily acknowledged, have shown that even when there is so 1162 much turbulence in the House, and when we are so divided, it is nevertheless possible for the whole House to be mobilised in its concern for those who, through no fault of their own, have become the victims of industrial accidents or industrial diseases, and wish to extend a helping hand to them.
I hope that the Bill will be given a Second Reading so that we can move forward to a situation in which there will be fewer burdens placed on those who wish to establish a real and genuine case before the courts of the land.
§ 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 Bills).