§ 11.4 a.m.
§ Mr. Arthur Probert (Aberdare)
I beg to move Amendment No. 2, in line 6, leave out 'suing under the Fatal Accidents Acts' and insert:'in actions arising from the death of their husbands'.I apologise to you, Mr. Speaker, and to the House for the fact that this is a starred Amendment. My only defence is that it is a consequential Amendment on an Amendment which was approved in Committee.
§ Amendment agreed to.
§ Order for Third Reading read.—[Queen's Consent, on behalf of the Crown, and Prince of Wales's Consent signified.]
§ Motion made, and Question proposed, That the Bill be now read the Third time.
§ Mr. Probert
I should be dilatory if I were once again to go over the many reasons for my asking support for the Bill on Third Reading. I should be accused of repetition, but I think not tedious repetition, because what the Bill proposes is very important and, in a purely legal sense, it can produce many interesting arguments. But I am emboldened to ask that the Bill be given a Third Reading because of the support I have had from all quarters of the country, particularly from women's organisations.
The first part of the Bill deals with what is without doubt a very difficult section of the law. Consequently, it is very difficult for the layman to understand. Nevertheless, it has received the support and approbation of legal representatives and, in particular, of trade unions. But it must not be forgotten that this part of the Bill, if the Bill is approved, will advance the interest of widows.
Part II, on damages for widows, is the part which has attracted much attention. 1085 It seeks to put an end to reprehensible obligations upon judges. I confess that the Solicitor-General is right when he argues, as he argued in Committee, that these provisions can sometimes produce an occasionally illogical position in law; but the present law is itself sometimes illogical. However, I believe I am right when I say that there comes a time when logic itself can be inconsistent with human justice, and logical argument, as I have experienced myself in Committee, can sometimes—I say with some degree of presumption in front of the legal luminaries here—descend into mere semantics. Be that as it may, I feel that this part of the Bill is a just one and accords with the best human sentiments. It will put an end to many undesirable practices consequent upon the existing law.
It would be very churlish of me if on this occasion I did not once again express my appreciation and thanks to the Lord Chancellor and his Department for the guidance and help they have given me with this Bill, and to the Solicitor-General who, on occasions when he has been very sorely pressed, as we are well aware, in recent weeks on other contentious matters, has, whenever I have asked, been able to give me advice which I sought from him. I must therefore express my grateful thanks to him.
I realise that in the debate to follow many legal points may be raised. I have received great assistance from my hon. Friend the Member for Pontypool (Mr. Abse), and I hope that, in consequence of legal points which may be raised in the debate, my hon. Friend will be fortunate enough to catch your eye, Mr. Speaker. I shall consult him on points which may be raised.
§ 11.12 am.
§ Mr. Edward Gardner (South Fylde)
May I be allowed first of all to congratulate the hon. Member for Aberdare (Mr. Probert) upon promoting what is, I think, generally seen by the House to be an admirable Bill? The main aim and effect of Part II of the Bill is one with which for the moment I am particularly concerned. I am very grateful for this opportunity of being able to examine with the House the provisions which are contained in Part II.
1086 This part of the Bill has as its main aim and effect the relief of the courts from what has been long regarded as an impossible task of judges in having to guess whether a widow who just lost her husband through the negligence of someone else is ever likely to marry again. I support this object of the Bill.
I noticed, as other hon. and right hon. Members may have done, in The Times this morning a letter to which the first signature is that of Mr. David Croom-Johnson, and other signatories are very distinguished members of the Bar, all of them expressing anxieties about the consequences of Part II of the Bill. While I read this letter with concern, and while in large part I understood the source of their disquiet, one cannot help feeling fortified in one's view that this new provision in Part II could have effect in law according to the views which were expressed so authoritatively and indeed so eminently by the Winn Committee and by the Cripps Committee. Even if one had not the comforting authority of both those Committees, I am bound to say that personally I would find it intolerable that the old and indeed the present system should continue as we have known it.
I suppose it is doubtful whether this country has ever had better judges than it has today, and it is certainly doubtful whether there is any country in the world which has better judges, but our judges are not men of magic and they should not be asked to play the part of soothsayers and fortune tellers. They cannot be expected to look at a pretty face or an attractive figure, no doubt with equally attractive characteristics, and decide whether or not the young widow is likely to marry again. Cases should be decided on fact and not on fiction. All too often a pretty face has deceived a judge. All too often the pretty widow will decide for her own good and no doubt deep reasons why she does not wish to get married again. All too often there is no means of knowing or ascertaining what her decision in the future is likely to be.
At the same time, whilst I personally, with what appears to be the almost unanimous support of the House, want to see the law amended in this respect, I am anxious, as I am bold enough to suppose there are other hon. and right hon. Members of the House who are anxious, to see the principle upon which damages 1087 are awarded unimpaired by the reforms which are contained in this Bill. Fundamentally I believe that the principle which governs the awards of damages in cases like this should be left undisturbed.
The fact of the matter is that damages are awarded to compensate a person for the injury he or she may have suffered. They are not awarded to punish the negligence or the person responsible because of his negligence for the death or injury of another, and the dominant rule in relation to such damages or financial loss is restitutio in integrum, that is, that the injured party should be restored to the position in which he or she would have been if the loss he or she has suffered had not been sustainted. This, I would submit, is good law, and it is also good common sense. It may never be possible to legislate with or for complete or perfect fairness. Equity in law, as all too often in life, is an unattainable ideal, and however we legislate there will be some anomaly, some hardship suffered by someone who does not come equitably within the principle which guides, or should guide, our legislation.
I hope when the Bill goes before another place for consideration that Part II will be amended on the narrow fundamental point of making it clear that, although we deplore and wish to remove from the responsibility of the courts the impossible task of speculating upon the likelihood of the young widow marrying again, we do not do anything that will undermine the equally vital and fundamental principle that at present governs the award and the assessment of damages in cases such as this. These damages are for pecuniary loss; they represent money which the widow does not have because her husband has been killed. They are not awards given to a widow in a moment of extreme distress because she has lost the person to whom she had devoted her life. Indeed, the result of seeking to measure damages by the degree of attachment which a women may have to her husband would be just as impossible as seeking to anticipate whether or not she will marry again after his death. Courts do not do that. All they can do, without any mathematical principle or scientific basis for their assessment, is to try to discover from the evidence what in terms of money the widow has lost.
1088 To take the most elementary example, supposing that a widow, by reason of the death of her husband, no longer gets the £20 a week which she was receiving for herself and her children when her husband was alive. That is a figure that can be arrived at and examined by the court, and there is precision in coming to the conclusion that she has lost £20 a week. There is obviously less precision in deciding for how long she is likely to suffer that loss and all the other matters that are attendant upon the ultimate conclusion of what her final pecuniary loss is likely to be.
Supposing—and it happens in real life—that instead of losing that £20 a week, the young widow marries again, this time someone who is not providing her and her children with £20 a week but with £40 a week. There is the difficulty. Whatever we may think about the need to make exceptions to or keep to the principle of restitutio in integrum, by marrying again this time a man who is able to provide her with more money than her former husband, she is in a better position financially than she was before. How can it be said in good sense and in good law that she is thereby entitled to be compensated for a loss that she has not suffered? Looking at it in the crudest possible way, she has, in the financial sense only, made a profit.
This does not seem right, and I hope that when the Bill comes to be considered in another place thought will be given to the possibility of making the provision which we are dealing with in Part II exclude from the effects of the Bill the woman who remarries. Clause 4(1) includes these words "the remarriage of the widow". The effect of this is, as the Clause clearly states:In assessing damages payable to a widow in respect of the death of her husband in any action under the Fatal Accidents Acts … there shall not be taken into account the remarriage of the widow …It will be a somewhat strange situation if those words are left in the Bill in its final form. The situation will be that where a widow has remarried, the fact, not the anticipation of the fact, should be left out of account by the court. I see the arguments that can and no doubt will be relied upon to undermine the objection which I am seeking to put before the House.
1089 If we were to remove those words about the remarriage of a widow as a fact that should not be taken into account by the court, there may well be widows who will deliberately refrain from remarriage until their case is settled by the court. There may be widows who will be so impatient that they will go and live, unmarried, with the man of their choice in anticipation of the day when they get their damages and can marry. There would, in other words, be people who would seek to evade the provisions of the Bill if it were amended in the way I suggest.
This does not seem to me a particularly attractive or cogent argument. On this basis would it not be possible to persuade the House that there should be no laws imposing taxes, because to introduce such laws may well persuade people to be dishonest by evading the laws? Merely because there is a possibility that someone may take steps to evade the consequences of a particular provision in a Bill is no good reason for saying that that provision should not be contained in the Bill.
§ The Solicitor-General (Sir Geoffrey Howe)
Could my hon. Friend help me on this by spelling out what the House has to face if it accepts his argument? I do not follow how he uses the word "evade" which has pejorative overtones. If the example were accepted, he would be entitled to advise a client in this situation, "My dear, you may certainly announce your engagement to the millionaire you seek to marry. You may set up a home in concubinage with him"—to adopt the French phrase—"ahead of the hearing in the court. You may go to court and say to the judge, 'I am now much better off than I was, and I shall in the future be much better off than I was, because tomorrow, after you have given me my £10,000, I intend to marry the millionaire'. "Is that not the consequence? Is that not more clearly described as avoidance rather than evasion?
§ Mr. Gardner
I agree with my right hon. and learned Friend that "avoidance" is the better word to use. It would be difficult to make a perfect analogy. I was not seeking to say anything offensive against those who might find themselves in the position which we are now trying to examine. I was making what 1090 I hoped was a helpful analogy. Certainly "evasion" connotes some form of dishonesty, and I am not suggesting that any widow who decided to delay her marriage so that she could appear before the court unmarried would be doing anything dishonest.
§ Mr. Probert
Would that situation not also lead possibly to protracted negotiations on behalf of the defendants?
§ Mr. Gardner
The courts have ways of dealing with undue delay. I am aware that some insurance companies indulge in tactics of delay which are quite disgraceful, but there are means by which the courts can deal with such delay which would be available to the widow as well as to any other litigant.
§ Mr. Martin McLaren (Bristol, North-West)
In regard to the interesting analogy drawn by my hon. and learned Friend, there is a similar situation in taxation matters involving the aggregation of husbands' and wives' incomes, which in many cases is very disadvantageous. Is it not the common experience of mankind that that situation does not prevent people from entering into marriage?
§ Mr. Gardner
I am obliged to my hon. Friend for those remarks. I return to the difficult problem of what is to be done about the woman who remarries. I am seeking to persuade the House that this legislation ought to be realistic. It should not contain provisions dealing with artificial situations concerning what might happen; it should not be based on speculation. Indeed, the ratio of provisions of Part II will extinguish the possibility of leaving a court to decide by speculation a fact which in deciding damages may, if time elapses, prove to be unfounded and of no value. If a widow remarries, that is a fact. All I am seeking to do is to make certain, so far as possible by argument in this House at this late stage, that later when this provision comes to be examined and reviewed in another place those who shoulder that responsibility may think it desirable to keep the law in a realistic form and to keep unimpaired the fundamental principle to which I have already referred. In order to do that, it will be necessary to remove the words referring to the remarriage of a widow.
§ 11.35 a.m.
§ Mr. Martin McLaren (Bristol, North-West)
I am in full agreement with all that has been said by my hon. and learned Friend the Member for South Fylde (Mr. Gardner) and will give my reasons in my own way. I feel that if we were to leave out remarriage as a matter to be considered by the court we should be driving a coach and six through the whole theory of the assessment of damages.
To go back to first principles, we know that two matters must be proved in actions for personal injury or death of a plaintiff. First, that the accident has been caused by the negligence of the defendant; secondly, that as a result the plaintiff has suffered loss and damage. We are not here concerned with the first point but with the second: in other words, the calculation of the plaintiff's loss. One looks at the plaintiff's situation at the time of the trial and compares it with what would have been the situation had the accident not occurred. The award of damages is made to compensate the plaintiff in terms of money for the difference between those two situations. There is no question of punishing or fining the defendant for his negligence; it is simply a question of compensating the plaintiff for what he has lost. If, for instance, the plaintiff in an accident case makes an unexpectedly good recovery from his injuries, the defendant pays less. On the other hand, if there are unexpected medical complications, the defendant pays more.
One principle is that the plaintiff has a duty to mitigate his damage and make the best of his situation. That is a point which stretches over the whole area of damages either in contract or in tort. For example, in actions for wrongful dismissal the plaintiff must try to find another job. If he finds an equally good job on the same day he was dismissed, the damages are only nominal even though the dismissal was wrongful. In claims under Lord Campbell's Fatal Accidents Act of 1846, the question has always been: what has the widow lost? One calculates the financial benefit and support which she received from her husband. That is what she lost by his death. Surely the court cannot shut its 1092 eyes to the fact that the plaintiff has remarried and is supported by another husband. It is like the example of the man who sues for wrongful dismissal and has another job. The only difference is that the widow is under no duty to remarry since naturally that is left to her own inclinations, but if she chooses to do so she would usually reduce her loss.
If the Bill is left in its present form, surely we will run into insuperable difficulties. Is the court solemnly to calculate all the details of the financial loss caused by the death of the first husband knowing that the widow has become remarried to a man of equivalent or even greater economic status? The question would then arise of what the damages would be for. That was a question which I asked in the Standing Committee and no one vouchsafed any answer because there is no answer, unless it is that the widow is to be given a vague, sympathy payment on the footing that it was the defendant who was responsible in law for the death of her first husband.
Until 1846 the old common law rule was that no one was entitled to make a claim for the death of another human being. Then, in 1846, an entirely new cause of action was created by Parliament, by which a widow claims for the financial loss caused to her. No payment is ever given for her grief or for the loss of the society of her husband. The court is concerned only with the money loss.
It is true that if there is life assurance, that does not have to be brought into account because that is reckoned to be a collateral matter based on contract. But I do not see how the same can be said of remarriage, an essential factor in the calculation of the damages of a woman who comes to court to complain of loss suffered by the death of her first husband. It seems to me that an actual remarriage is quite different from a prospect of a possible remarriage. The latter is a speculation, a possibility, and I agree that that should be left out of the reckoning. But the actual remarriage is an event to which the court, in my view, cannot shut its eyes, and hitherto it has been taken into account. I cannot see why, if we remove consideration of the prospects of remarriage, we should alter the situation of actual remarriage.
1093 It is said that women would artificially postpone their second marriages, that they might live in sin so as not to have their damages reduced. Some might be so mercenary, but I hope that most women would not allow themselves to be influenced by rather base considerations of that kind. We should get into dreadful confusion if we departed from the simple and well-tried yardstick in assessing damages: what has the plaintiff lost?
For those reasons I do not wish to oppose the Third Reading of the Bill, which has many valuable features and has generally been given a popular welcome. But I hope that the points to which my hon. Friend and I have referred will be further considered when the Bill reaches another place.
§ 11.44 a.m.
§ Mr. Norman Miscampbell (Blackpool, North)
Before the Bill moves on to another place, I wish to air once again the grave concern against the whole concept of Part II of the Bill. One welcomes the other parts of the Bill wholeheartedly. I shall be saying nothing that is not well known to hon. Gentlemen opposite, with whom I have discussed the matter, and everyone in the House this morning who has considered it.
If one goes back to the first principles and looks at the Fatal Accident Acts, one is driven to the conclusion that we are driving a coach and horses through all their principles.
The Fatal Accident Acts set out to compensate the widow for financial loss, and it was restricted to financial loss. To do justice between plaintiffs and defendants, the courts must look at the financial status of the husband and his health and age, and they do the same with the wife. It has all been set out very well in a good and cogent letter published in The Times newspaper today. But if the present proposals go through, the natural and inevitable result will be that a widow of 39 with five children will get X pounds, and a widow of 21, ignoring the possibility of remarriage and the position of the children, would get more than the widow of 39. As between two plaintiffs, that is unfair.
It is cogently argued that we are trying to get rid of one unfairness—that marriage prospects are considered—and that that is of sufficient weight that we 1094 must accept the anomaly, which was clearly recognised in previous debates, which we are importing into the law today. I want to argue briefly that this is not so.
I part company entirely with my two hon. Friends who argue that there is some magical distinction to be made between the woman who comes to the court married and the woman who comes to the court engaged, or perhaps living with a man, or, just with marriage in prospect or in hope. The amendment to include the widow who has subsequently remarried and comes to the court in a newly married state is nothing more than the logical extension of what we were doing in the original proposals. It is right that if we are to accept the original proposals. it would be nonsense to make any distinction between a girl who was engaged, a girl who was married, or a woman who was living with somebody and has not actually gone through the marriage ceremony.
§ Mr. Gardner
I wonder if my hon. Friend makes any distinction at all between speculation of the fact and the fact itself. The fact that someone is engaged to marry a millionaire does not mean that this will ultimately mature into a fact. Surely there must be distinction between speculation, which must be fiction, and fact, which is fact.
§ Mr. Miscampbell
I would make a distinction betwen speculation and fact. But the difficulty is that this matter tails off from pure speculation to almost such certain fact that, if the woman is actually living with her millionaire or it is absolutely clear to everybody that she is going to get married, one cannot draw the line simply at going through the ceremony of marriage to make the difference between speculation and fact. I accept that if it was pure speculation an argument could be founded upon it, but I do not know whether it would be a good argument.
I want to accept the logical consequences, because it is when one comes to the position which we are logically driven to, when the woman has already remarried somebody else who is possibly noticeably better off than her last husband, that one finds the illogicality not of the remarriage clause, but of the very fact of remarriage. It goes to the heart 1095 of the illogicality of what we are doing, because if we are to retain the Fatal Accident Acts as they are at present drafted, under those Acts it is very difficult to see, if a woman comes to the court and says, "I am remarried; I am better off; I have had no financial loss, but under the Acts which allow me to be assessed on the basis of financial loss, I want you to compensate me". My hon. Friend's question has already been asked, what, under those circumstances, the compensation would be for.
One is inevitably driven to the conclusion that we in the House are making a nonsense of it. It is said, as between two widows, that there is a social problem here. I accept that. There is a social problem that they may have to have their marriage prospects considered. Admittedly, the 39-year-old widow will not get as much as the 21-year-old widow. But one could simply say that it is nobody's loss and it just happens to be a gain to the 21-year-old. I do not consider that to be a very attractive argument, but it is one that could be at least put forward. I ignore the arguments about its fairness or otherwise to the defendant, though no lawyer should. I ask the House to consider, when we ask judges day after day to assess prospective loss in the courts, why we are making it more difficult for them to do their job in this case. Prospective loss and the consideration of the possibility of marriage will still have to be considered in the courts. A girl whose face has been injured in a motor accident goes to the court and asks for damages because her marriage prospects have been impaired. We are not stopping this consideration in the courts. We are simply removing it in one set of circumstances.
There is a case for a full-scale look at the Fatal Accidents Acts, I am not sure that legislation passed nearly 150 years ago is the basis on which we should be considering fatal accidents today. But, having said that, I protest at any tinkering with it albeit for well-meaning reasons, in a Bill which his otherwise admirable and has nothing much to do with the Fatal Accidents Acts.
If anyone thinks that what we are doing today will not matter, will not cause distress and will not be troublesome to widowed plaintiffs later on, I 1096 suggest that he considers an example which will come readily to the mind of the hon. Member for Pontypool (Mr. Abse), of an accident in a mining village. In such a case, it may be that 20 men are killed. Such a tragedy will affect close-knit relationships in a village where everyone knows everyone else. It may be in such a case that most are middle-aged but that, among them, there is one very young, newly married miner with an attractive wife. By these provisions, all the middle-aged widows will get less than she does. I understand that the women's organisations want a change in the law, but I do not think that that is really what they want to happen, and I do not think that it is what this House should do.
§ Mr. Probert
As the law stands, in such a case there would be a parade of widows before the judge, who would be in the position of having to assess the marriageability of one against another. Does not the hon. Gentleman agree that that is totally reprehensible?
§ Mr. Miscampbell
I accept that there is assessment. I hope that the House will accept from me that in most cases it is not an uncivilised procedure. It is something which has to be done. The widow has to be seen. There is no more to it than that.
I hope that I have not left the House in any doubt that there is a problem here. I question only whether this House is going about its solution in the right way. In the tiny number of cases which present difficulty today, judges are dealing with the problem day in and day out—
§ Sir Elwyn Jones (West Ham, South)
The hon. Gentleman is a member of the Bar and has to deal with these problems in court. Has not he felt the painful embarrassment, when instructed to appear for an insurance company, of putting these kinds of questions to a widow in the witness box? Speaking for myself, I have found it almost intolerable.
§ Mr. Miscampbell
I readily accept that. I hope that nothing that I have said undermines my acceptance of it. I have even been involved in cases where evidence has been obtained by inquiry agents and provided to me for use in cross-examination. I accept that. But I still 1097 think that the House should look carefully at what it is doing. It may be that we should amend the Fatal Accidents Acts completely. However, in my view, the changes that we are proposing today will create more anomalies than they will cure.
§ 11.55 a.m.
§ Dr. Alan Glyn (Windsor)
Like other hon. Members, I welcome the Bill. In my few remarks, I want to confine myself to Part II. I have listened with interest to what has been said by my hon. and learned Friend the Member for South Fylde (Mr. Gardner) and my hon. Friend the Member for Bristol, North-West (Mr. McLaren) about the operation of this part of the Bill, but I have been more impressed by what my hon. and learned Friend the Solicitor-General has said.
We are really considering what should be the measure of the damage which a widow has suffered. One cannot really legislate on the basis of whether she is about to get married, is engaged to be married or has deferred her marriage until the case is decided. The point that we have to decide is what she has actually suffered as a result of the loss of her husband.
As the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) has pointed out, until now the courts have had to go into these sordid and embarrassing questions in front of relatives and friends, a process which I find quite repugnant. If it does nothing else, the Bill does away with that. However, it will be difficult in another place to produce an Amendment which will rectify that and give universal justice. After all, compensation is a once and for all payment. There is no question of a variation afterwards. We would be making one law for the person who has married literally the day before the proceedings are concluded and another law for the person who married the day after. I cannot see equity in that.
We have been talking about the case where a widow remarries. But let us consider another position. What happens in the event of a merry widow, during the course of the proceedings, winning £350,000 in a football pool or being left money by a relative? In such a case, her good fortune will not be taken into consideration.
1098 If we want to treat matters in an equitable manner, one is forced back to the position of deciding what is the measure of the damage that the widow has suffered in her loss. In my opinion, the House should disregard any prospects of future marriage and even any existing remarriage. It should ask itself what damage she has suffered and assess the case accordingly. As my hon. and learned Friend the Member for South Fylde pointed out earlier, we do not intend to penalise anyone. We are compensating for a genuine loss.
Having listened to the arguments of my hon. and learned Friends, I am more influenced by what my hon. and learned Friend the Solicitor-General has said. It would be better to leave the Bill as it is and make sure that widows are compensated for the damage that they sustained at the time of their loss and not bring other considerations into the assessment of damages.
§ 11.59 a.m.
§ The Solicitor-General
Throughout the proceedings on the Bill, I have tried to play a benevolently neutral rôle.
I begin by responding to the kind observations of the hon. Member for Aberdare (Mr. Probert) about my part in the proceedings. The hon. Gentleman has ensured that these two important matters have been dealt with by the House with the sympathy and care that they both deserve, and I join every hon. Member who has spoken in welcoming the continued progress of the Bill. I hope that it will go on its way and that the important proposals in Part I which arouse no controversy will not be impeded in their progress to the Statute Book.
On Part II, I acknowledge, as I have done from the beginning, some responsibility for the appearance of these provisions in the Bill. Indeed, it would be difficult for me to escape from it.
Every hon. Member who has spoken has continued to share the concern which led the members of the Cripps Committee and others to put forward these proposals. Everyone has expressed concern, even the most ardent root-and-branch opponent, including my hon. Friend the Member for Blackpool, North (Mr. Miscampbell), at the unattractive prospect of cross-examining a widow about her 1099 intentions, the unattractive aspects involved in the employment of inquiry agents, and the unattractive features of a judicial pulchritude test, which have been spoken about previously. We have all been anxious to avoid that, and we have arrived in our considerations at the proposals now in the Bill.
It is platitudinous to repeat that any departure from the basic concept and principle underlying the 1846 Act of compensating for loss must amount to an illogical conclusion in some respect. I have searched for many months, whilst I have been thinking about this matter, for any logical alternative. My hon. Friend the Member for Windsor (Dr. Glyn) grasped this nettle when he said that if we are to depart from the 1846 solution there is no logical point at which to get off.
On the other hand, my hon. and learned Friend the Member for South Fylde (Mr. Gardner) and my hon. Friend the Member for Bristol, North-West (Mr. McLaren) have advanced yet again the alternative of having regard to the fact of remarriage and not to the prospects of remarriage. It is plain that there is concern in this House and concern as expressed in the letter in The Times today at the practical consequences of the illogical conclusion which is now being commended in the Bill. There is no escape from that once we decide to abandon the unattractive features of the present system. But because it gives rise to concern, and as the matter is no doubt to be considered in another place, perhaps the House will forgive me if I recapitulate the alternatives and throw in one or two in addition so that the matter will be on record for consideration in another place, even if those who there consider it in the end feel themselves impelled towards the solution in the Bill.
First, there is what I might call the stand-pat argument: that any departure from the present principles is unacceptable and we should stay with the law as it is. That is the view expressed in The Times letter, and it is supported by my hon. Friend the Member for Blackpool, North with the important qualification that there should be an inquiry into or a pursuit of this so far undiscoverable alternative. That is a point of view which will no doubt be considered.
1100 Secondly, there is the half-way position supported by my hon. and learned Friend the Member for South Fylde and by my hon. Friend the Member for Bristol, North-West. I emphasise that my intervention in the course of my hon. and learned Friend's remarks was in no sense unfriendly. It was designed to point up the position which he was defending. The House has grasped the difficulties of that half-way position, whereby the court takes account of the fact of remarriage, not of the prospects. My hon. Friend the Member for Blackpool, North denounced that, rather fiercely for a Friday morning, as nonsense. The difficulties are well illustrated. The fact that the widow who has remarried would get very little and the widow who comes with a triumphant declaration of an intention to remarry as soon as she leaves the court with the cheque in her hand would get full compensation is plainly an illogicality which seems more difficult than any of the other alternatives.
A third alternative, which has not so far been canvassed, has been suggested by more than one person who has discussed this matter with me. I mention it so that it should be on record. It is that the court should take account of the fact of remarriage and of a definite and settled intention to remarry, applying something like the test which is applied under the Landlord and Tenant Act when a judge is trying to determine whether a landlord has or has not an intention to demolish and reconstruct. The court would, on this alternative, have to decide whether the widow's decision to remarry had crossed what Lord Justice Asquith described in a case as the valley of decision.
That alternative proposal would remove the obligation for the judge to consider the widow's attractions subjectively, but it would not remove the temptation to employ inquiry agents. Indeed, it might increase that, because there would be every incentive to discover whether the widow had arrived at that decision. That strikes me as getting the worst of several worlds. I mention it to show that it has been considered.
A fourth alternative, which we have mentioned in our debates, is that we should disregard altogether subjective factors, but should have regard to the actuarial prospects of remarriage measured objectively by reference to the age and family size of the widow.
1101 The courts have continued to show a reluctance, which I find difficult to understand, to have regard to actuarial evidence. Indeed, that view was reasserted by the Court of Appeal in Mitchell v. Mulholland. If we leave that difficulty on one side, it seems to me that this House or another place could provide in this sphere that the court should not have regard to the fact of remarriage or the subjective prospects of remarriage, but should have regard only to the actuarial possibility. Then some account could be taken of the point put by my hon. Friend in his example of the 20 people injured in the same colliery accident where it is manifest that, as a matter of actuarial forecasting, the 20-year-old childless widow would be more likely to remarry than the 39-year-old widow with five children. But even this could still result in illogicality, because we may find the 39-year-old widow with five children had defied the actuaries' forecast. Although the actuarial forecast might be that she had no prospects whatever of remarrying, encumbered as she was with so large a tribe of children, she might come to the court nevertheless saying, "Here I am. Here is my husband. The actuaries seem to say that I should not have remarried, but I have." So, again one would be confronted with an illogical conclusion.
The last possible alternative—I find it impossible to see how it could be defined—would be to say to the judges in some way: "You must continue, as in the past, to have regard to the fact and prospects of remarriage, provided that you do not undertake any assessment by reference to your response subjectively to the charm and beauty of the widow before you". If we had to tell the judges to continue to have regard to the facts of life but to disregard the beauty or otherwise of a particular plaintiff, it is difficult to see how a Parliamentary draftsman, with all his skill, could formulate such a prohibition on judicial inquiry. It would still leave it open to the judges to say that they must take account of the fact that the widow, having received a substantial sum of damages, had, by that very fact, increased her prospects of remarriage. That is another factor which is sometimes brought into account. I find it difficult to see how we could warn the judges off taking account of those factors, to tell them to dehumanise them- 1102 selves in the personal sense but to have regard to the broader facts of life.
So I come back to the provisions in the Bill. If the House accepts these provisions, if they remain in this form after consideration in another place, it will be responding to a long-standing grievance by women and women's organisations prompted by the factors which even my hon. Friend the Member for Blackpool, North has in mind. As I warned the House when we first considered the matter, in responding in that way we shall he moving away from the cold logic of a bare assessment of "What has this widow lost as a result of this accident?"
The House must appreciate that cases are bound to occur which exemplify this departure from logic in an extreme form. Somewhere, at some time—sooner rather than later—a case will come before the courts of a 17-year-old widow who has lost her apprentice boy husband—who was giving her 30s. a week while she earned her own living—and who has remarried, within 12 months, a millionnaire pop star. In some such dramatic form the newspapers, which report quite properly all the activities of the courts, will present to the country the conclusion that a widow was getting a substantial sum of money when in truth she could not prove that she had suffered any loss.
§ Mr. Leo Abse (Pontypool)
The Solicitor-General has been making a very fair appraisal of the Bill, but in this connection does not he agree that the degree of dependence in the case of a 17-yearold wife receiving 30s. a week from her husband would be so small that in any assessment made, even over a long time, the amount of damages would be very small?
§ The Solicitor-General
That example might not have been the best that I could have chosen. Let me instead take the example of the widow of a 21-year-old steel worker who was established in employment and was earning £20 a week. That example would be more telling. I am sure that the hon. Member appreciates that we are bound to have reported cases of dramatic over-compensation. On the Cripps Committee we said, "If that is to happen, so be it". There is over-compensation in the case of the widow whose husband is well insured. She receives double compensation. This is a 1103 matter that the country, Parliament and the courts will have to live with. I hope that I have done my duty faithfully to the House in this matter.
§ Dr. Glyn
Does not my hon. and learned Friend agree that it would be very difficult to draft anything that would operate in any way equitably and that we are better off simply to say, "What was the measure of damages at the time of death?", and leave it at that—leaving out all other factors, as is done in the Bill? I do not think that any other legislation can be made to work properly.
§ The Solicitor-General
That is the conclusion to which I was impelled as a member of the Cripps Committee. I am sure that the House appreciates that there are two logical positions to be taken up—either we live with the law as we are now doing or we accept the provisions of the Bill as they stand. I cannot bring myself to look kindly upon the arguments of my hon. Friend the hon. Member for Bristol, North-West and my hon. and learned Friend the Member for South Fylde, although they are attractive at first sight. Provided the House knows—and provided that those who discuss the Bill in another place know—that we are accepting an illogicality which appears to be the less illogical alternative to that which now exists; provided that the women of this country acknowledge the extent to which this House, constituted as it is today entirely of hard-backed males, is nevertheless responding to the case that they have put to us on many occasions and succumbing to their plea to have a less logical approach—provided that we get that credit from it, even if we earn discredit from some of those who have to apply the law as it will be—the matter can proceed to be considered in another place.
§ 12.15 p.m.
§ Mr. Leo Abse (Pontypool)
In making what, with the permission of the House, may be the winding up speech in this debate, I want to say a few words about Part I since, inevitably, the attention that has been directed to Part II has tended to obscure the important provisions which, as a result of the action of my hon. Friend the Member for Aberdare (Mr. Probert) in introducing 1104 the Bill, will come into effect. In the past Parliament has made many attempts to govern the limitation of actions by strict calendar calculations, so that precisely in so many days, months or years after an event the guillotine falls to extinguish any outstanding rights that that event created.
One distinguished barrister—Anthony Wolf—who has made a special study of limitation difficulties, has understandably questioned, in the light of many attempts to legislate to prevent unfairness arising to any justified complainant, whether the rigid rules that statute law must lay down provide the best way of resolving the problem, or whether wider discretion should be given to judges so that a wiser approach may be made, which is more likely to end in justice.
That approach was rejected by the Edmund Davies Committee before Parliament laid down certain principles in the 1963 Act. Therefore, although some may yearn in this part of the Bill—as the hon. Member for Blackpool, North (Mr. Miscampbell) has yearned—for a more radical overhaul of the law in the second part of the Bill, all that can be done by private Members—and that only with generous aid from and meticulous study by the Law Commissioners—is to seek to remedy clear injustices that have arisen since 1963 and hope to pass a Measure that will at least bring some reparation to those mothers or their dependants whose fate it is to become the unknown victims of an ecological disaster.
The immediate purpose of the Bill is to give a right of relief to those who, like so many miners after contracting lung cancer arising from their work, may become aware only years later of the facts of their disease, and also become aware of the fact that even the derisory minimal and lenient duties imposed on management by the Mining Acts to minimise the effects of the dust working conditions were not taken at the time. This Measure, too, will bring relief to widows whose husbands, through being engaged in a chemical process have died, as many have, from bladder cancer, and from the anomalies of the present law, which leaves widows out in the cold so that they find to their chagrin that although the colleagues who worked with their 1105 husbands but who have survived the disease receive damages, they themselves, by law, are at present entitled to nothing.
I am naturally pleased to be able to be associated with my hon. Friend the Member for Aberdare in putting through a humane and helpful Bill of this kind, which will be very meaningful, in particular to the Transport and General Workers' Union, which has been deeply concerned about this problem, and the Miners' Federation. Not surprisingly it is not the complex but important provisions of the first part of the Bill that have received attention in the House and the Committee, but, rather, one aspect of that Clause in Part II which seeks to direct attention to the present objectionable practice of a judge's being compelled to assess the remarriageability prospects of a widow when she makes a claim for damages in respect of the loss of her husband through an accident.
The Solicitor-General has rightly pointed out that it is inevitable that this matter will be considered in another place, and it is well that the arguments which have brought the House to its present conclusion should be fully appreciated elsewhere. Hon. Members who have intervened—particularly the hon. Member for Bristol, North-West (Mr. McLaren), who made as helpful a contribution in Committee as he has done today—have rightly sought to give some of the historical background to show the state of the law of damages at the present time.
The hon. Member for Blackpool, North (Mr. Miscampbell) has also sought to suggest that we were driving a coach and four through the existing law, but he has been more restrained and has not suggested that there is within the law the perfection which I suspect the hon. Member for Bristol, North-East was hinting at. It is important that it should be understood clearly in the other place when this matter is discussed that the real position is that the widow today in the assessment of damages is, in the manner and method in which it is done, at a grave disadvantage.
Before any talk of making further deductions arises, it must be understood that the widow in this country, in distinction perhaps to many other countries, starts off with a technique of assessment 1106 which places her at a disadvantage. The position is that damages were spelled out in the last century on the idea of restititio in integrum, under which the intention was to put an injured party in the same position, as far as possible, as she would have been had the wrong not been sustained. This was once the task of juries and is now the task of judges, largely.
As was said by Lord Justice Atkin in 1925,the law as to these damages still awaits a scientific statement.That is exactly the same sort of comment which could be made today. In our present approach, the judges eschew completely actuarial calculations and the itemisation of various heads of damages and fixed scales. They are, rightly or wrongly, adopting an approach which means that they are concerned, in the case of widows, only with the degree of dependency which they had upon their husbands.
Although, in the 19th century, the courts consistently made awards which included the loss of prospective pecuniary advantages, now the court usually confines its inquiries to the capitalising, after appropriate discounts, of weekly contributions which the late husband made to the household. As I said in Committee, in the words of Professor Street, the reason why the judges take only the amounts of money received for housekeeping by the widow while her husband is still alive is due to what he describes as "the cynical attitude of judges to working class life".
If we had the 19th century practice, whereby, before assessing damages people looked not at what a working-class man might have given to his wife by way of housekeeping but at all his earnings, we could have today a different picture and there might not have been the same sort of pressure for amending the law in the way displayed in the Bill.
Today, the courts are almost assuming that whatever part of his wage a working man does not give to his wife he immediately spends on drink and gambling. That may have been a valid assumption once, but how can we account for the vast expansion of national savings or unit trust movements if it were not true that wage earners spend everything else not on drinking and gambling but on 1107 many other matters and that their wives are receiving a part of the money and that the rest is going towards future security?
If the husband who has been killed had invested part of the remainder of his money, even though it was only an investment in a football pool, the savings would ultimately benefit his dependants, and in this loss of a prospective pecuniary advantage there could be grievous loss. None of this is at present taken into account by a judge.
§ Mr. McLaren
Surely it is the case that a court will take into account the promotion prospects of a deceased husband and will allow for the likelihood that, as he went on in life he would earn more money and the dependency of the widow would increase.
§ Mr. Abse
Yes, that is substantially true, but a whole series of other matters are deliberately excluded. The judge does take into account investment income, for example, which follows as a result of the husband's death. That is discounted from the damages. Any accelerated gain which may come to the widow as a result of her husband's death, any money which has been brought forward to her, is taken into account when the judge decides what damages should be awarded. So I am saying that the base at the moment is gravely to the disadvantage of the widow.
§ The Solicitor-General
The hon. Member is making a number of wide-ranging general remarks about the way in which the courts approach the assessment of widows' damages. Since it is possible that some publicity might be given to what he is saying, I would ask him to acknowledge that the picture which he is presenting is far from a fair presentation of the way in which courts in modern times, when the case is properly presented to them, approach this kind of case.
It simply is not the case that judges or courts or those who handle these cases proceed to assess the compensation awarded to widows upon the basis that it is only the housekeeping money that counts or that they assume that the rest is devoted to drink and gambling. The hon. Member is presenting an unfair picture. He knows perfectly well, surely—I can tell him from personal experience in 1108 a large number of these cases—that the courts take into account all the evidence laid before them.
They will take into account the fact that dependency includes hire purchase expenditure, holiday expenditure, costs of running a car, and indeed the capacity to save. There are authorities showing this. The court does take into account a reduction in the household saving capacity resulting from the death of the wage-earner.
It is true that, under limited qualifications, account has to be taken of acceleration of benefit, but I am sure that the hon. Gentleman would not want it to be regarded as unchallenged in the House that the courts approach these questions in the kind of way which he is now, rather unfairly, presenting.
§ Mr. Abse
I would hate it to be thought that I was presenting a distorted picture. In talking of a cynical attitude, I was quoting Professor Street and using his argument. I am prepared to acknowledge that the rigidity with which he seems to think the courts are applying these matters does not necessarily always happen. I do not doubt that the wide variation which often takes place in the assessment of damages between one judge and another, a fact which is notorious among all of us who have to act for plaintiffs, arises to a large extent because there is a difference of approach between judges and a considerable variation in assessment.
Many of them take the view which the Solicitor-General is pointing out, but there are certainly rigid rules concerning the question of accelerating gain, and, equally, apart from statutory exceptions such as he has pointed out—police pensioners for example, in certain circumstances—the blunt fact is that a widow can find in some circumstances that deductions are made even for a pension.
I hope that the Solicitor-General will not think that I am being unfair when I say that the widow faces the position, unlike the position in Scotland, of receiving nothing for her grief or for the loss of the society of her husband. That is the position in English law. Yet if a man loses a limb he receives compensation for pain and suffering and loss of amenity. Does the loss of a limb necessarily occasion more pain than the loss of a 1109 husband? It should be understood when the issue is being evaluated in another place, as I do not doubt it will be, that we should deal with the actuality of the situation of remarriage, and that apart from all the arguments already presented in the debate we came to our conclusions against the background of the generality of practice in all courts.
The Solicitor-General has already stated the arguments against those who want to deal with the Bill in a way which will make certain that there will be a deduction if the widow has remarried. The arguments have revealed not only the absurdity of trying to distinguish between the engaged and the married but that no attempt can be made to make any such distinction without introducing a whole series of other anomalies. The strongest argument today was that used by the hon. Member for Blackpool, North who put to me the situation of the 21year-old widow in a mining village. As I listened to his persuasive argument I felt an air of unreality. The fact is that a young woman of 21 in a typical mining village, of which my constituency has many, would be working. The degree of dependence in young women today, when more and more of them are working, is comparatively small. The widow of 39 with half-a-dozen children would obviously not be working. Therefore, although at first sight it may seem possible that the typical 21-year-old will receive more money than the 39-year-old, because the multiplier will be greater for the 21year-old, the amount that will be multiplied will be smaller. I do not believe that the typical widow of 21 with no children would have a high degree of dependency. The situation is different for a young widow with many children, because she may be bringing up very young children over a long period of time. It may be most inequitable to suggest that in certain circumstances she should not have more than the widow of 39. Therefore, the argument is not so convincing when we examine it in depth.
The strongest argument for keeping the Bill as it is has not been echoed, though I mentioned it in passing in Committee, in the full catalogue of arguments for and against presented by the Solicitor-General. It is important that as a matter of social policy the law should be so constructed that we encourage and assist 1110 widows with children to remarry and establish another family. The law should not be a disincentive to remarriage. I am sure that the whole House is concerned with trying to stabilise the family unit. Knowing the difficulties that flow to children who are fatherless, we can see that the most obvious thing to do is to make certain that the Bill gives all practical encouragement to remarriage. If we interfere with the Bill in the way suggested by the hon. Member for Bristol, North-West and other hon. Members we create a situation in which there will be evasions, so that a woman may live in sin for a long time, and we still have the prurient snoopers employed by the inquiry agents examining the possibilities of remarriagfe. Moreover, a woman might hesitate to remarry because she might think that she could be creating a great disadvantage for her children. For example, she may not wish to marry because she considers that it will mean a substantial loss of money which not only she but her children will rue.
I listened to a sociologist this week pointing out that widows tend to be less hasty in remarriage than widowers. I think that this is so. It is desirable too that men should take a robust, commonsense view. What man here—and we are all men here today—would not hesitate or be diffident about marrying a widow with children, not because he did not want to get married but because of the grave emotional and financial responsibilities that are bound to be involved when a man takes on not only a widow but another man's children? Therefore, we should encourage a position where a widow with children can remarry knowing that she will be bringing into the new partnership a sum of money, so that she will not come as anything but an equal partner into the new family relationship; and a man knows that in marrying and becoming a stepfather, although he takes on enormous emotional parental responsibilities, he does not necessarily also take on a great deal of financial responsibility.
Therefore, the House should not take a step which could add in any way to the burdens of the re-creation of the family unit.
I have had my say—
§ The Solicitor-General
Before the hon. Gentleman finishes his speech, perhaps he will allow me to correct two points he has made. First, he said that a widow receiving a pension as a result of her husband's death might have it taken into account against her damages. I think that he will accept, on being reminded of it, that although that was the position until 1959, as a result of the Fatal Accidents Act, 1959, passed on the initiative of another private Member, all benefits by way of insurance or pension received by a widow as a result of her husband's death are now disregarded. It is important to get that on the record, since the debate may be read by many people concerned with the matter.
I think that the hon. Gentleman will be equally willing to accept my other correction. He referred, I think, to the book on the Limitation Act by a distinguished barrister, Mr. Anthony Wolf. I may have misheard, because Mr. Anthony Wolf is a solicitor, and the hon. Gentleman would not wish to do that kind of injustice to his own profession.
§ Mr. Abse
I take the correction. If I described him as a barrister it was a slip of the tongue. Perhaps it is because I am so used to saying the word, "barrister" when I talk of those with distinction. It is not often that I am guilty of modesty. On the first point, I do not want to enter into sophisticated methods of assessment, even dealing with National Insurance pensions, but at some point, and I am sure that it will be in another place, some of the practices can be explored in relation to the so-called gains which come to a widow, including those of pensions.
I was drawing to a conclusion. I will again express thanks, as I am sure my hon. Friend the Member for Aberdare would wish, to the Solicitor-General for his attitude, of benevolent neutrality. It would be churlish of me to say that he could do no less after the massive contribution he made to the Cripps Report set up as a consequence, I understand from reading it, of the intervention of the Prime Minister. I certainly hope that the conclusions which come from such a distinguished group of Conservative lawyers will be found as acceptable in another place as they are here.
I want to thank on behalf of my hon. Friend the Member for Aberdare the Law Commissioners whom we have not 1112 mentioned in these proceedings. Without the aid of Sir Leslie Scarman and his team I am sure that the complexities of the first part of this Bill would never have been resolved in the way that they have been. Finally, I am sure the House would want me to express congratulations to the hon. Member for Aberdare who has with considerable ability and soft persuasiveness steered through a Bill which has so many thorny, prickly problems. We all hope that the Bill will receive ample discussion in another place. For my part, I hope that after those discussions have taken place the anomalies any mooted changes would bring about will be avoided and that the legislation will be irrevocably embodied in its present shape.
§ Question put and agreed to.
§ Bill accordingly read the Third time, and passed.