§ Order for Second Reading read.9.36 am
§ Mr. Alexander Eadie (Midlothian)
I beg to move, That the Bill be now read a Second time.
I am conscious of the fact that I am fortunate to have been well up in the ballot for private Members' Bills. I have chosen to promote a Bill that I feel deserves to pass through all its stages successfully, both in this House and in the other place. It is aimed at clearing away some of the doubts in the part of the law that deals with claims by individuals based on personal injuries or death resulting from such injuries.
When I speak of personal injuries, I do not mean only those injuries which spring readily to mind, such as injuries sustained in a road accident. I also include conditions that might not be immediately thought of as personal injuries, such as those that are brought about or brought on as a result of working in an unhealthy environment. We are all graphically aware of the horrendous injuries that can be sustained in an accident either on the road or at work. However, equally horrendous injuries can be sustained simply by someone being in an unhealthy atmosphere for a long time, perhaps being subjected to contaminated air or high levels of noise.
Some of these injuries in the form of what are known as industrial diseases can take a long time to make themselves apparent. I have in mind pneumoconiosis and asbestosis. As hon. Members will probably know, pneumoconiosis is a disease that can take a long time to make itself apparent. It is a disease of the lungs contracted mainly by coal miners breathing air contaminated by dust.
§ Mr. Barry Henderson (Fife, North-East)
When I first saw the Bill, I could not immediately perceive the hon. Gentleman's interest in what looked like a piece of quibbling lawyers' documentation. I realised, knowing the hon. Gentleman's wide experience of mining and the care of miners, that there was possible significance for pneumoconiosis sufferers. Is he satisfied that the Bill will improve the position of people who suffer from pneumoconiosis and treat Scottish sufferers as favourably as those south of the border?
§ Mr. Eadie
To take the hon. Gentleman's last point first, any measure implemented by the Bill will mean that Scottish miners or other sufferers will not be disadvantaged in any way compared to those south of the border. I hope that the hon. Gentleman will try to curb his impatience, because I have only just started to develop my argument. The hon. Gentleman may or may not be impressed by the measures, but I should value his support to ensure that the Bill receives a Second Reading.
I referred to injuries caused by environmental conditions, and pneumoconiosis can be classified in that category. I worked for 30 years in mining, mostly at the coal face; with that experience one is aware of the consequences and effect that that has on men.
Mining is not the only industry in which one can contract pneumoconiosis.
1109 I hope that the House will bear with me when I say that it is not pleasant to see workmates whom one has known as boy and man leaning on anything handy as they pause to get air into their damaged lungs. One has known some of them in earlier years as, to coin a Scottish phrase, "big braw men". I know that it will come as no suprise to hon. Members that I do not apologise and never apologise in the House for my advocacy on behalf of miners. I believe that miners and their wives are the salt of the earth. We would all probably agree that mother nature does not give up her treasures lightly from the bowels of the earth. However, I believe that Parliament has a responsibility to minimise the consequence to those involved in what is described as man's quest for those treasures.
The industrial injuries Acts passed by Parliament in what can now be described as yesteryear meant a great deal to working people. They replaced the inadequate workmen's compensation Acts. The scheduling of diseases under the industrial injuries Acts removed the anxiety felt by many when claiming industrial injury benefit. Pneumoconiosis is a scheduled industrial disease, but a problem exists in too many instances when miners cannot prove that they have the disease.
I should like to praise the mines inspectorate for the work that it has done to ensure that safety standards are implemented within the mining industry. The inspectorate is truly independent of management and over the years has built up trust from the unions and the work force. It is a confidence and trust unequalled in British industry. I mention that because there are rumours that some people in the Health and Safety Executive want to alter the role and authority of the mining inspectorate. If true, that would be a foolish disregard of history and tradition.
I should like to mention the role played by the National Union of Mineworkers and other miners' unions in assisting miners in their claims for industrial injury benefit and negligence. The unions spend enormous sums of money assisting their members. It is a service that deserves more credit than it receives, particularly in pneumoconiosis claims.
Many miners have the problem of proving that they are pneumoconiotic and to what extent. In many cases they feel aggrieved that the diagnosis is bronchitis and the union tries to seek redress for the miner by applying for a medical examination for him before the pneumoconiosis panel. Many cases fail, and the disease is diagnosed as bronchitis. The simple way out would be to make bronchitis a scheduled disease for all workers in heavy industry. The broader concept is that we should pay benefit to workers according to their disablement. Some NUM local branch officials try another rather macabre way out. It is neither their fault nor that of the men that they do so. When a man dies one has to ensure that a post-mortem examination is held. It is based on the simple concept that what the man could not prove in life may be proved in death. To have it proved means a great deal financially under the industrial injuries Acts to the widow or to other dependants.
I have had the harrowing experience of trying to prove after death what a man could not prove in life. As a local NUM official I had to go to a man's house where he was lying in his coffin. I had to tell the widow that her husband had made me promise that I would ensure that a postmortem examination was carried out to find out whether 1110 he had had pneumoconiosis. I have had the experience, which harries me even when I think about it now, of explaining that to a widow and a young daughter in the house broke down with grief saying, "No, no, you cannot have my daddy taken away to be cut up."
In such circumstances I have left with the feeling that I was an intruder. Such experiences have been deeply distressing. I wish that those who criticise the National Union of Mineworkers and trade union officials would appreciate the nature of the tasks that they have to undertake. They seek neither publicity nor praise and they regard it as their duty to provide a service for their members even in death.
Post-mortem examinations do not always succeed. Indeed, they are not even 50 per cent. successful. Disputes about diagnostic procedures in post-mortem examinations are prevalent. Members of the medical profession to whom I have spoken argue that there is often room for dispute unless the lungs are inflated in the post-mortem diagnosis. I hope that I have been able to illustrate that "personal injuries" as a result of working in an unhealthy environment is a cold and inadequate term if that environment leads to a man developing pneumoconiosis.
Asbestosis gives rise to great and increasing concern. It is caused by the inhalation of asbestos dust. Those who work in the asbestos industry or who install or remove asbestos, particularly those who were connected with asbestos before its deadly effects were understood, are especially at risk. I have little personal experience of asbestosis, which, like pneumoconiosis, is a scheduled industrial disease. My knowledge is based on television documentary programmes and press comments. However, one of my constituents who is suffering from asbestosis has visited my surgery.
The effect of asbestosis is no less disabling than the effect of pneumoconiosis. It has emerged that some of the sufferers could have contracted the disease at several companies for which they had worked during long working lives. This is illustrative of the hazards that working people face when they seek to earn a livelihood for themselves and their families.
I have mentioned the best known examples of personal injuries. These are readily apparent physical injuries that are caused by involvement in an accident and less apparent injuries that are caused over a long period by exposure to an unhealthy environment.
There is also an ever-increasing awareness of the dangers of high noise levels and the effects that they can have on the health and well-being of those who are exposed to them. Industrial deafness may not make itself apparent for a considerable time. We may readily think of noisy factories and the noisy cabs of tractors and lorries, but a recent report prepared in America concluded that the members of a symphony orchestra were subjected to noise levels well in excess of those considered desirable. I think that all those with young families are, to put it politely, inconvenienced. That is due to modern technology and technological development.
I do not think that people realise that technology is wonderful. I used to ask why it was necessary to break men's backs if we could produce new machines and new tools that would prevent it. Those who say that hard work never killed anyone have probably never done a hard day's work in their lives. I am all for technology.
We are now much more aware of the inherent dangers that face many working people, and it is accepted that 1111 there are many people suffering from the injuries that I have mentioned. I have selected only a few examples of personal injuries; I could give many more. I have tried to illustrate the general background that has caused me to promote the Bill. There are other diseases that are well known or not so well known and I hope that the Bill will clarify the law and assist those who are concerned in bringing actions for damages based on personal injuries.
§ Mr. Henderson
The hon. Gentleman has rightly placed great emphasis on the practical problems that are faced by those suffering from industrial diseases which he hopes the Bill will alleviate. Will he confirm that the Bill covers personal injuries outside the industrial environment and that someone who was injured by high noise levels that did not necessarily have anything to do with work could come within its limitations? He presented an appropriate example by referring to the noise levels to which members of symphony orchestras are subjected.
§ Mr. Eadie
I think that the hon. Gentleman has answered his own question. It might be said that I am trying by legislation to issue specific instructions to the courts, and that in so doing I am attempting to remove their discretion. Lawyers and laymen are not always opposed to the courts exercising discretion. It is often said that the chance to exercise discretion provides hope. The arguments for permissive legislation or mandatory legislation have been adduced many times in Committee and on the Floor of the House. Perhaps there is a bit of both in this Bill. I am not trying to be like a lawyer, saying that on the one hand we can have this, and on the other hand we can have that. I am endeavouring to spell out in statute what my Bill does, without removing the elements of discretion but giving instructions to the court. I may be criticised for it, but I have tried to use my best endeavours.
We are aware of the dfficulties encountered when laws are unclear. I hope that the hon. Member for Fife, North-East (Mr. Henderson) and other hon. Members will welcome my Bill, and give it the support that I believe it deserves. It will help all those who have suffered personal injury.
Before I discuss the details of the Bill, the House may find it interesting to know the events that led up to it. The Scottish Law Commission promotes the reform of the law in Scotland, as Scottish Members will know from their association with the discussions on the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 in the Scottish Grand Committee. On 16 November 1982, the commission issued report No. 74, entitledPrescription and the Limitations of Action. Report on Personal Injuries Actions and Private International Law Questions.That is a somewhat daunting title, but in essence the report contains the commission's deliberations on this area of law and recommendations for its reform. Attached to the report was a draft Bill prepared by the commission's draftsmen. That draft Bill formed the basis of the Bill that we are discussing today. The report is part of the continuing process of examination and reform, and the main part of the commission's examination of the law on prescription and limitations of action was formulated in its report No. 15 of 1970. The recommendations of that report were implemented in the Prescriptions and Limitation (Scotland) Act 1973. Some hon. Members may be a little uneasy about such technical and legal terms, but I shall try to provide as full an explanation as possible.
1112 Even after the introduction of the 1973 Act, the Scottish Law Commission kept the position under review, and discovered that there was continuing dissatisfaction with the presentation, rather than with the substance, of the law. The commission believed that a further review of the Scottish law was justified in April 1980, and it published a consultative memorandum No. 45 entitledTime Limits in Actions for Personal Injuries.In July 1980 the commission published a consultation paper on prescription and limitation in private international law, which was prompted by the negotiation of a draft EC convention on contracts, and by the recommendations of the Law Commission for England and Wales for reform of English law in this matter. Consideration of the responses to that memorandum and paper led the Scottish Law Commission to believe that some reform of Scottish law was necessary, and it produced report No. 74, containing recommendations on how the law might be changed.
My Bill is based on the commission's draft Bill, which in turn is based on the recommendations arrived at after wide consultation with many interested parties. Therefore, I hope that hon. Members will be assured that my Bill is not a hastily drawn up measure but a considered response to the problems which the commission recognised required clarification.
Hon. Members may ask how the Bill achieves the desired clarification of the law while balancing the interests of all concerned. It might be helpful if I dealt briefly with the present law and explained how it works in claims for damages for personal injuries. Prescription is a principle of law that extinguishes completely some claims or rights after a fixed period. I shall mention that principle only briefly, since the main thrust of my Bill is not aimed at that part of the law. There are two forms of prescription. The first is the prescription of heritable rights where, after 10 years, an apparently valid title to heritable property becomes unchallengeable. There are also prescriptions which, after the appropriate period of five or 20 years has expired completely, extinguish the rights and obligations to which they apply.
The limitation of action is a completely different animal. I am advised that it is not a native principle of Scottish law but is the result of legislation based on the English concept and aimed at uniformity of law throughout the United Kingdom. The principle of limitation is that the expiry of a stated period bars the raising of an action to enforce a claim. It is a rule of procedure that does not extinguish the claim but simply prevents it from being enforced.
Since 1954 the most important general rule of limitation has been that actions for damages for personal injuries or for death arising from those injuries must be raised within three years. The rule was set out in the Law Reform (Limitations of Actions, &c.) Act 1954.
I hope that I have been able to remind hon. Members of the basic rules in the area of law with which my Bill deals. Hon. Members might well ask why we need all these rules preventing the bringing of personal injuries claims after a certain time. The House will recall that I mentioned the necessity to strike a balance between the interests of the parties involved in personal injuries cases, both those making the claim and those being claimed against. The need for such rules can be summarised as follows.
1113 First, there is the need to protect the defender from being subject to possible claims over a long period. In all fairness, there must come a time when the books are closed. The defender's records may have been lost or destroyed. It would be unfair and inefficient to require an employer to keep records for long periods simply to guard against the possibility of an employee claiming damages for personal injuries.
Secondly, there is the need to ensure that claims are dealt with as quickly and as expeditiously as possible. Most claims will depend on eye witness evidence. I have had long experience as an official and have been involved in many cases when eye witness evidence counted for a great deal in determining the outcome. Embarrassment can be caused and the accuracy of eye witness evidence can be challenged with the passage of time. Anyone who has had experience in industrial relations, in industry or, indeed, at the Bar will know the importance of eye-witness evidence. The longer the delay, the less reliable the evidence on both sides tends to be. I could make a speech on that point alone.
It is fair to say that the limitations rules provide a practical sanction against excessive delay. I mentioned earlier the problem of claimants whose injuries might not become apparent until some time later—perhaps well beyond the three-year period. I am glad to say that the present law takes account of such a problem and I would not wish to change all those basic principles. However, as I said previously, the Scottish Law Commission found discontent with the presentation of these laws giving rise to uncertainty and doubt about the position of certain claimants.
I am sure that hon. Members will agree that we should take the opportunity to remedy these areas of doubt and uncertainty. I am glad to have such an opportunity by means of the ballot for private Members' Bills. I think that it will be helpful to hon. Members if I go through the Bill and explain, against the background to which I have already referred, what it sets out to do.
I hope that I have convinced hon. Members of the need for a limitation period based on rules which take into account the specific interests of the claimants and the person claimed against. The Scottish Law Commission found during its extensive consultations that there was general content with the three-year period of limitation for personal injuries cases and therefore my Bill makes no attempt to change the time limit. There is a requirement to clarify the law rather than to make sweeping changes.
My Bill proceeds by way of amending the Prescription and Limitation (Scotland) Act 1973. Sections 17 to 19 of the 1973 Act deal with the limitation of actions and I propose in my Bill to substitute new clauses 17 and 18, which are incorporated in clause 2 of the Bill, for those provisions. Clause 17 of the Bill restates the basic principle but more clearly. It provides that no actions in respect of personal injuries may be brought after three years from the injury being sustained or the date of the claimant becoming aware that he is suffering from an injury. The date of the claimant becoming aware that he is suffering from an injury is a substantial definition and instruction to the courts.
The Scottish Law Commission considered that the expression "act, neglect or default" in the existing legislation was too indicative of a suggestion of fault or 1114 blame. My Bill therefore refers simply to an "act or omission" giving rise to an injury. I am advised and assured that this covers all possibilities and is a more acceptable term. The Bill retains the requirement that if the act or omission giving rise to the injury is a continuing one the relevant date for calculating the three-year period should bethe date on which the act or omission ceased".In such circumstances it might be difficult, if not impossible, to state exactly when the injury occurred. This method of dealing with the problem has the advantage—I wish to emphasise this to the House—that the date will normally be the date of the claimant ceasing to work in the harmful conditions and thus will be easier to ascertain than the actual date of injury.
I have already mentioned the problems associated with injuries that do not come to light for a considerable time or their extent not being fully realised. It is clear that anyone in this position should not have his claim rejected simply because he was unaware that he was suffering from an injury until the time limit had expired. Earlier I mentioned asbestosis and pneumoconiosis. People with those diseases could be unaware that they were suffering injury until the time limit had expired.
My Bill retains the principle that in such cases the limitation period should not begin to run until the claimant becomes aware of the position. That is of great importance. This provision is contained in section 22 of the 1973 Act, but the Scottish Law Commission found that it was subject to criticism for being somewhat inflexible and that the reference to the claimant seeking appropriate advice was considered to be unnecessary and served only to complicate matters. The Bill provides that the knowledge of the claimant in such cases should be a relevant factor in assessing the limitation period. The commission addressed its mind to whether the test of knowledge should be related to the claimant himself. It concluded that it should, and the Bill follows that recommendation.
Hon. Members will appreciate that it is impossible for legislation to take account of each and every circumstance. The formula adopted will enable the courts, which are best placed to do so, to take account of the differing circumstances of claimants and the differing nature of their injuries.
The test of knowledge is not open-ended in favour of the claimant, as the limitation period will run from the date on which he became aware of his injury, or the date on which it would be reasonable to assume that he should have become aware of his injury. In such cases, the limitation period will commence when the claimant is aware, or should have been aware, first, that a sufficiently serious injury had occurred and, secondly, that the injury was caused by an act or omission by the person against whom he is claiming. The reference to a "sufficiently serious" injury is designed to give a clear indication to the courts that the injury should be at a fairly advanced stage before the time limit begins to run.
The new section 18 deals with claims stemming from injuries that result in death. Following its consultations and deliberations, the Scottish Law Commission concluded that the executors and relatives of a deceased person should not be entitled to raise an action based on those injuries where no action by or on behalf of the deceased had been commenced within three years. The Bill reflects that recommendation.
1115 In all other respects, the Bill applies to the executors and relatives of deceased persons rules similar to those already applying to personal injury claims generally. The Scottish Law Commission was concerned about the question of time limits against persons under a legal disability who would find it difficult to bring an action within three years. I am referring to children under age, persons suffering from mental illness and so on. In general terms, I am assured that the present law is satisfactory because it does not allow time limits to run against such persons while they are disabled.
However, there are one or two inconsistencies that I am glad to remedy by the Bill. For example, a child in the custody of a parent is not at present considered to be under legal disability, and the present rule may disciminate against him if the parent has an interest in ensuring that action is not taken; the parent may have been at fault in a motor accident which led to the child's injuries. The Scottish Law Commission concluded that there was much to be said for a simple rule to prevent time running for those with legal disabilities. That view was endorsed in the consultation process. I hope that hon. Members will agree that the Bill remedies those anomalies and provides a clearer statement of the law.
Although on the one hand the Bill extends the rules on legal disability to protect those for whom such protection is desirable, on the other hand—that is a legal phrase—it narrows the rules so that they apply only to the injured person himself. The original rules allow legal disability to be applied not only to the injured person but to anyone who took over the right of action. Thus, a defendant might find that the limitation period was suspended to his prejudice by, for example, the assignment of the claim by the injured person to someone under a legal disability. I hope that the House will agree that by clarifying the rules on legal disability the Bill presents a more acceptable and clearer statement of the law to the benefit of both a legally disabled claimant and the person against whom a claim is made.
Although personal injury claims form the main part of the Bill, the Scottish Law Commission considered cases in which a certain position, such as a contract, was governed by a foreign law. It is accepted that there may be confusion about whether a Scottish court, in deciding such cases, should apply the Scottish or foreign rules of limitation. The commission concluded that doubts in that area would be best removed by a straightforward rule. The Bill follows that recommendation by providing that in cases where the foreign rule governs a position the rules of limitation of that law should be applied to the exclusion of any corresponding Scottish law rules.
I am afraid that the Bill cannot be said to be the liveliest piece of legislation that has come before the House. But, lively or unlively, it deals with people and attempts to improve their lot. Whether I do that in a lively or unlively way does not matter, because at the end of the day what matters is how beneficial it will be for those concerned.
I trust that I have said enough to convince the House that, although couched in rather technical, legal terms, the Bill deals with the real issues. In clarifying the law and seeking to remove doubts in an important area of the law it will be of real benefit. The Scottish Law Commission report made it clear that, while the law is generally satisfactory, there are areas where it can be improved for the benefit of all. That is what I am trying to do with this 1116 Bill. I am convinced that we should take the opportunity to effect those improvements, and I hope that the House will give the Bill the support that I believe it deserves.
§ Mr. Nicholas Fairbairn (Perth and Kinross)
I am sure that the whole House will wish to congratulate the hon. Member for Midlothian (Mr. Eadie) on selecting this particularly equitable piece of legislation to promote as a private Member's Bill and on the clarity with which he presented the meaning and implications of his Bill, despite the fact that he labours under the enormous advantage of not being a lawyer. He said that hard work never killed anybody, and that that phrase was normally uttered by those who had never done any hard work. He is a living example of the concept that hard work never killed anybody. He spent at least 30 years working extremely hard down and around the mines, and we are happy that the hard work did not kill him, whomever else it may have tragically killed.
§ Mr. Fairbairn
As my hon. Friend reminds me, the hon. Gentleman put in hard work on the Bill. I am nor in a position to judge the hon. Gentleman's skill as a coal miner but I think that he would make a good lawyer. If he retires from this place, he could put his hand and mind to the interests of litigants. The whole House will especially sympathise with and applaud the hon. Gentleman's tribute to those who work with such skill and dedication in the mining industry. My father said to me that, when he was fighting in Palestine in the first world war, if anything difficult, dangerous or courageous had to be done, it would always be a miner who did it.
I had the privilege early in my legal career, having devilled for the late sheriff McIlwraith, to appear in a large number of reparation actions on behalf of coal miners who had tragically been injured while doing their dangerous work. It was a privilege to meet them and go down the mines to see the critical conditions in which they had to produce the source of light and heat for all of us. I agree with the hon. Member for Midlothian that miners are the salt of the earth. I am thankful that the machinery and technology of which the hon. Gentleman spoke have greatly reduced the risk of injuries of the type that used to occur, although, paradoxically, they have reduced the number of people who are employed in the industry.
In a previous incarnation, when I was studying medicine, I had the experience of dissecting corpses of men who had been employed in the mining industry and those who had not. I remember my shock when I first compared the lungs and chest vessels of those who had worked down the mines with those who had not. In the past 20 or 30 years, the recognition by the law that a disease or a change in the conditions for reparation may not arise from a single traumatic act has been a major improvement in our approach to the equitable concept of reparation for injury.
Lawyers are, by definition, an unpopular breed.
§ Mr. Fairbairn
The hon. Gentleman says, "Hear, hear." I may select him to charge for that advice. He has often said that lawyers overcharge. That may be true of solicitors, as my hon. Friend the Member for Aberdeen, 1117 South (Mr. Malone) will appreciate, but I assure him that it is not true of advocates. The definition of an advocate's clerk is someone who helps the advocate to get what is coming to the clerk. It would be helpful on this occasion for a lawyer who has had some experience of reparation matters to make some comments on the Bill.
Like the hon. Member for Midlothian, I pay tribute to the Scottish Law Commission, its distinguished chairman, Lord Maxwell, and all those who worked on the paper that gave rise to the sensitive alterations in the law that are foreshadowed in the Bill. It is particularly appropriate that the legal reforms suggested by the Scottish Law Commission should not be unduly delayed. It may surprise the House to hear that, as a lawyer, I take the view that the less law there is and the simpler it is, the better. Because of the pressure of legislation, it is particularly appropriate and commendable that the hon. Member for Midlothian has selected as the subject of his Bill a piece of law reform which has already been recommended. He might have selected other matters that were not recommended, but which might have been of particular appeal. I hope that such intelligent reforms become a habit and become law as quickly as possible. They should be thought of as an appropriate choice for those who are successful in the ballot.
As the hon. Member for Midlothian said, prescription has a positive and negative effect. We do not need to go into that jurisprudential distinction in the Bill, because the concept of a positive prescription does not arise. We are concerned solely with the loss of a right to sue for reparation. The title of the Bill contains the words, "Prescription and Limitation". Lest I bore the House, I shall not attempt to describe the difference between prescription and limitation because to do so accurately would confirm that lawyers are unnecessarily tedious, long-winded and boring.
§ Mr. Fairbairn
If the right hon. Member for Western Isles (Mr. Stewart) continues to tempt me, I shall give him a lecture on the matter afterwards—provided that he buys me drinks while I do so. I warn him that it will cost him a very large number of drinks.
Successive Acts, beginning principally with the Law Reform (Limitation of Actions &c.) Act 1954 to which the hon. Member for Midlothian referred, have adjusted the period within which an action for damages for personal injury may be brought. It is important to explain to the House in some detail why there should be such a limit. The hon. Gentleman described with frankness, fairness and clarity the unfairness which may arise if there is delay.
Research was done on this issue some time ago. I do not greatly favour subjecting everything to research, but this is a simple process which can be conducted as a game. One enacts a simple scene in front of 10 people and then asks each of them various questions such as, "Who walked into the room first? Did either person sit down? Was either wearing glasses? What did the one say to the other? Did the other reply? Who spoke first?" and so on. If the same questions are asked of the same people after an hour, a day, a week, a month, a year or two years, not only will the 10 people give 10 different accounts, but there will be as many different accounts from each person, depending on the passage of time.
1118 It is no fault of the witness that he emotionalises and personalises the events that he has witnessed so that they become distorted into a fantasy of his own. I am sure that all hon. Members will share my experience. People frequently tell me that they met me in, say, a certain hotel in Stanraer on a certain occasion and that I said such and such to them, when I know that I have never been to Stranraer, have never been inside such a hotel and have never met the person concerned before. People fancify and falsify, albeit unintentionally. That is why the prime excellence in a reparation action is that it should be heard as soon as possible after the event complained of. It should also be heard quickly because in many cases recovery of the injured person is psychologically united with settlement of the claim—"no settlement, no recover" is a constant characteristic of reparation actions.
Therefore, it should not be thought that the Bill is a prescription for delay, because it is nothing of the kind. It is an attempt to achieve equity. There must be a limit on the time within which actions may be brought. It would be thoroughly unfair if people had constantly in mind throughout their lives the fear that someone might sue them for something that happened many years earlier. As the hon. Gentleman said, it is also unfair that the party being blamed should be put at a disadvantage by the destruction of evidence and the forgetting, aging or even death of witnesses that the passage of time creates.
The hon. Gentleman instanced a variety of new claims such as industrial deafness and asbestosis. More recently, there has been the concept of radiation damage arising from experiences in the 1950s, so it is important that allowance should be made for conditions which develop silently and gradually in a progressive and debilitating way.
I give this warning, however. The hon. Gentleman said that a person might become deaf through listening to an orchestra, going to a disco or even entering his own home if he is unfortunate enough to have children who believe that volume is a commodity to be had in multiple quantity. Here we must be cautious, because if going to a concert were to be an attributable act of damnum for which damages could be claimed, the Arts Council and the legal aid fund would have to unite.
A school of thought among lawyers and certainly among claimants favours the concept of absolute liability. That was partly suggested in the Pearson report, certainly with regard to road traffic injuries. The Americans have taken that path to some extent, but I warn the House that absolute liability, in removing fault as the basis for injury claims, also removes any duty of care from the employer. If liability for injury is absolute, it matters not whether the employer puts guards on the machines, ensures that employees wear goggles, keeps the floor free of grease, or whatever. A local authority would be no more liable if it left manhole covers off than if it put them on, except perhaps for some penalty or fine under the statute. The House should not overlook the importance of fault in promoting care in industrial workplaces. Any idea that there should be automatic liability therefore is a bad one.
Such a concept would also give rise to the absurdity that it would not only be the person with pneumoconiosis who had a claim. What about the chap who has had a bad chest since birth? What about the chap who is too short to see football matches whose head is constantly hit by taller chaps? Everyone would have a claim arising from any characteristic, difference or disability.
§ Mr. Eadie
The hon. and learned Gentleman referred to a person with a bad chest since birth in relation to pneumoconiosis. I know that he has had experience in court of the difficulty of proving that a person is pneumoconiotic. I can only cite my own industrial experience, but I have found that people working in heavy industry always seem to be troubled, for example, by bronchitis. Does the hon. and learned Gentleman agree that people who work in heavy industry seem to be more susceptible to bronchitis?
§ Mr. Fairbairn
It was because the hon. Gentleman mentioned the concept of bronchitis that I introduced a caution about absolute liability. Accidents of fate or chance should never be the basis for a claim. I agree with him. A much more liberal attitude is now taken in the courts than when pneumoconiosis and asbestosis were first conceived of. The proof of such diseases is difficult, but the courts now take a much more sensitive approach to them and proof is not anything like as difficult as it was 20 or 30 years ago.
§ Mr. Donald Stewart
With regard to liability, the hon. and learned Gentleman will be aware from his professional experience, as are many of us in industry, that there is an in-between state when safety devices such as goggles are provided but workers do not wear them. In such cases the issue of liability would provide a good deal of argument in the law courts.
§ Mr. Fairbairn
There is a simple rule of law that if the person is the author of his own injuries he must take the consequences. In broad concept, that is a principle of law. A person who is told to wear goggles and does not do so because they are uncomfortable, or a person who is told that the circular saw must have its guard fitted at all times and then removes it because he can produce twice as many button sticks with it off, is held to be the author of his own misfortune. I agree with the right hon. Gentleman, in that I have often thought that if a chap who is working in a toffee factory falls into a vat of boiling toffee because the appropriate rail is not up, whatever else might be said about what he did or did not do, or should or should not have done, one thing is certain—he did not intend to have a bath in boiling toffee.
§ Mr. Eadie
This is an important point. The hon. and learned Gentleman has mentioned people being the authors of their own misfortunes. He has practised law for some time and I am sure that he would not want to be misinterpreted. He is using the concept of being the author of one's own misfortune in relation to whether it is possible to claim for negligence. Surely he agrees that such a person would still be entitled to industrial injury benefit? There is an important distinction between the workmen's compensation Acts and the industrial injuries Acts.
§ Mr. Fairbairn
Such a person certainly would be entitled to such benefit but he would not have a claim for negligence against his employer or any other member of the community. He must establish that the fault which caused the injury was not his own if he is to recover damages from another party. That distinction should be clear.
The Prescription and Limitation (Scotland) Act 1973 was the first breach in the absolute provision of the Law Reform (Limitation of Actions &c.) Act 1954 that an 1120 action must be brought within three years. It was recognised then that there was a possibility of an injury developing when there was no sign at the time of its cause. I can think of many examples. For example, someone might drop a hammer on a person's head. After a few days of concussion in hospital that person might appear to be perfectly all right. However, there might be residual injuries which give rise to debilitation, tumour or injuries to the cranium which cause chronic pain years later, but yet can correctly be assigned to the original injury.
It was most equitable that the 1973 Act was introduced. The Bill attempts to refine it on the basis of a decade's experience of the problem of time limits for actions of reparation. The Scottish Law Commission said:It was held in a series of cases on both sides of the Border that injury could be sustained by the pursuer irrespective of whether the illness had manifested itself: the fact that the pursuer did not discover, and had no reasonable opportunity to discover that the injury had been sustained until several years had elapsed, made no difference.It is probable that, in contemporary times, there will be ever-increasing cases and causes of injury which come about years after the original cause. The first benefit of the hon. Gentleman's Bill is that it faces the question of when the period which is to have an absolute terminus should begin. It is equitable that the appropriate date should be the date of injury, if it is known, or the date of knowledge of the injury, whichever is the later. It might seem to some people that these matters are simple, but I should like to quote a case to demonstrate the difficulties which a pursuer and the courts might face when deciding when an injury began or was caused and who was to blame. This is not one of my cases, but that of another hon. Member. It is appalling, but it illustrates the difficulties.
A man had a pain in his chest. He went to his doctor, who told him that he did not have a pain in his chest. It was deemed to be psychosomatic. That is another difficulty which the law faces. The hon. Member for Midlothian will know the condition which is known in the law as miner's back. It is frequently taken to mean a complaint which anyone can make and no one can prove. We should always remember that the malingerer presents another difficulty in the path of genuine claims. As I said, the man was told that he had no pain in his chest. After he had been to the doctor several times saying that the pain was worse, he was referred to a hospital to get him out of the way. At the hospital he was told that he had pleurisy, that there was nothing really wrong with him and that he should just go home and take some pills. The man did so, but the pain got worse and worse, so he called in a locum doctor.
According to the evidence, the locum was not sober. He said that the man did not have pleurisy, but had bronchitis, and that he should take some other pills, stay in bed and enjoy himself. During the night he became critical, so his father called an ambulance. On the way to hospital they encountered an off-duty policeman pushing his motor car in an attempt to start it across six lanes of traffic in the dark. The ambulance, rushing to get the man to hospital, hit the motor car and the unfortunate pursuer was thrown out into the road, where he lay for 30 minutes in the rain. Eventually he arrived at the hospital and developed symptoms which I understand resulted from the injury that he received when flung from the ambulance. He was taken into intensive care.
The diagnosticians did not appreciate that he had a head injury, because they were concentrating on his chest 1121 injury, and the man stopped breathing several times. That resulted in brain damage and he became a vegetable. All the parties involved—the doctors, the hospital, the local authority, the policeman and the ambulance driver—denied fault. Ten years later the man's relatives are still trying for a remedy. That is a tragic and appalling case and illustrates the difficulties of deciding when and how an injury arises.
There is no attempt in the 1973 Act to define a date for when an injury arises.At present, the period starts when the act, neglect or fault ceases. That is not a satisfactory rule. For example, a person who contracts pneumoconiosis may continue to work in the mines long after he has contracted the disease, and the time will be confused. He may continue to work in the mines, but not where the air affects his pneumoconiosis. In such case, the date is also uncertain and difficult to determine.
The concept of the date of knowledge in the Bill is an important improvement. Under the 1973 Act the start was when a "reasonable man" would be aware. That is to be modified to the date on whichin the opinion of the court, it would have been reasonably practicable … to become, aware.Since 1973 the courts have been lenient towards the concept of reasonable awareness. It is reasonable for the court to say, "For goodness sake, the man might just have thought that he had a cough or a cold and it was not reasonable for him to be aware." After all, we all hope that we are not ill.
I have described the improvements for those who are fortunate enough not to die of their injuries. The Bill also contains reforms in relation to fatal accidents. It is unreasonable if a person has not raised an action in his lifetime until it is barred, for the survivor or executor to be given time to start all over again. Under the Bill, and executor or relative has either three years from death or three years from the date of his knowledge of the cause of injury and the right, therefore, to claim. It would not be equitable to give the survivor a better claim than the deceased, or to give those who survive an injury more time than those who succumb to an injury. The Bill contains important and intelligent reforms. The three-year period is right. The Law Commision was given evidence on both sides. It was advised by some that five years was right, by others that three years was right and by others that the period should be even shorter.
I do not wish to cast aspersions on the solicitors' branch of the profession, but a solicitor, like a general practitioner, has to deal with many clients. He does not deal with just one case at a time, as an advocate does. A solicitor has innumerable calls on his time and attention. I regret that actions for damages frequently take time to be raised. Often complicated matters are involved and questions of liability require a great deal of investigation. It is important that generous time should be allowed for the raising of actions, but that that time should not make it likely that witnesses will have forgotten or that evidence will have been lost. The urgent duty of any lawyer is to raise an action at the earliest possible moment. That is in the interests of all parties. If the period were extended from three years to five years, that would merely give people the opportunity to put off until tomorrow what they cannot be bothered to do today. That would be a retrograde alteration and I am glad that the Bill sticks to three years.
1122 It is wise for the Bill to make absolute the concept of legal disability. For a person who is under age or insane, for example, the time will not run during a period of disability. It is important to understand that in many cases involving children under the legal age action will arise because of the fault of a parent or relative who has an interest. For example, the driver of a motor car who drives into a lamp post and injures his eight-year-old son would have an interest in not raising the action because it would be against himself. The change in the Bill is important.
The concept of actions of relief in the Bill is also important. Lay members of the House may not know what that phrase means. It involves the right of a defender—for instance in the tragic case that I cited—who is sued alone to recover damages from other parties who were to blame. The period for that is two years, which I think is a proper period for such recovery.
The Bill also contains a provision of clarity which I welcome. Where an action arises from an injury or wrong that occurs in a country other than Scotland, the limitation on the time for the action will be according to the law of that country, even when the action is heard in Scotland.
I apologise if I have delayed the House for some time, but the Bill is one of great equity, with considerable legal and social implications. It is to the immense credit of the hon. Member for Midlothian, who has personal experience and has witnessed the tragedy of industrial injuries, to the families of those injured and to the community in which they work, that he should be associated with introducing such an equitable measure.
I hope, as sometimes happens, that when the Bill becomes an Act of Parliament it will be known colloquially as "Eadie's law".
§ Mr. Martin J. O'Neill (Clackmannan)
The Opposition welcome the Bill. We, too, hope that it becomes known as "Eadie's law".
It is traditional to congratulate those hon. Members who obtain a high position in the ballot for private Members' Bills. I am never sure why that is a reason for congratulation because the opportunity to introduce such a Bill is one that hon. Members often have cause to regret. The Bill most probably will become a valuable piece of legislation, and we hope that it will simplify and clarify the law.
The problem has engaged the law on various occasions in, 1954, 1973 and now, 1983. A wide-ranging inquiry has been held by the Scottish Law Commission on the subject and I am gratified that it got its act together fairly quickly. A contributing factor in calling the legislation "Eadie's law", as we hope it will be known, is that other Eadies may have been involved in the process.
We are conscious that my hon. Friend the Member for Midlothian (Mr. Eadie), with his wide-ranging experience of the mining industry, has described in graphic terms the implications flowing from injuries acquired over a period in circumstances in which it is difficult to establish exactly when the injuries first occurred, and to give an opportunity to the injured and to their families to seek reparation as common justice demands.
New injuries become apparent as technology changes. The medical profession's awareness of the implications of industrial practices also becomes greater. For example, the increasing awareness of industrial deafness will bring in 1123 its wake a series of actions which, under the present law, are not met with justice for those who make the complaints.
My hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) has had to deal with a difficult problem involving industrial deafness of an individual working in the shipyards. Although the case had been agreed, and the cause of deafness accepted, the man died before the issue could be fully resolved. The claim was extinguished on his death. It is hoped that, if that case is not covered by legislation, future cases will be. Nothing is more worrying and frustrating to families — in this instance the sum involved was about £450, which is roughly the cost of the average funeral — who have undergone considerable personal problems in dealing with the injury to their deceased relative than learning that his death prevented them from getting money at the very time that they needed it.
The Opposition believe that the Bill is not contentious and wish to ensure its speedy passage. We can investigate its details in Committee. The Bill is particularly well documented. The reports by the Scottish Law Commission are available and we can consider its proposals. My hon. Friend the Member for Midlothian said that the Bill followed the lines of the commission's report No. 74.
We congratulate my hon. Friend, with qualification, on proposing the Bill. We think that it will make an additional contribution to workers in the industry which he has so effectively and consistently defended and advanced. He has also contributed to those who work in many other industries in which there is the danger of prolonged injury and debilitating illness when workers are subjected to hazardous conditions. We hope that the Bill will have a speedy passage so that the gap in the Scottish law can be filled and justice will become available to this hitherto disadvantaged group of individuals.
§ Mr. Barry Henderson (Fife, North-East)
I think that the hon. Member for Clackmannan (Mr. O'Neill) has just made his best, albeit short, speech.
I confess that when I first heard about the Bill I thought that it concerned chemists as it refers to prescriptions and limitations. Most of us are aware of the present controversy in which Scottish chemists are arguing with the Government about prescription charges and whether they should be limited or discounted. I hope that my hon. Friends appreciate that I was not unreasonable, as a legally ignorant person, in gaining that first impression of the Bill.
On further inquiry, the Bill appeared to me as a layman to be highly technical and legalistic. I was not surprised to see among the Bill's supporters the right hon. and learned Member for Monklands, East (Mr. Smith) and my hon. Friends the Members for Moray (Mr. Pollock) and for Edinburgh, West (Lord James Douglas-Hamilton). However, I was puzzled to see that the promoter of the Bill was the hon. Member for Midlothian (Mr. Eadie). That fact, among others, caused me to inquire further into what lay behind such a complex piece of legal jargon. I was surprised to find an honest Fife ex-miner mixing in such dubious legal company.
The reason for the hon. Gentleman's interest then emerged very clearly, and he explained it to us. It was helpful to have his fluent explanation of the practical and 1124 useful provisions in the Bill, despite the fact that to a layman at first sight it looked very complex, technical, legal stuff.
I do not suppose that any hon. Member is unaware of the interest of the hon. Member for Midlothian in the mining industry. He is an acknowledged expert in all aspects of it. Although we clash from time to time about the activities of the National Coal Board and about some aspects of the mining industry, I cannot remember ever questioning the hon. Gentleman's expertise on the subject or his genuine concern for those who work in that industry. I share that concern with him, and it was very well expressed by my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn). It is an industry in which there is every reason for genuine concern about the welfare of those who work in it.
The way in which the hon. Member for Midlothian presented his Bill revealed what might be described as the acceptable face of trade unionism, from which he comes. All too often we hear, as we have in the past few days, a great deal of what I regard as the extremely unacceptable face of trade unionism. To many people, little is known of this side of trade unionism, which is concerned in a quiet and serious way with looking after the interests of workers. It is quite clear that this was an important part of the hon. Gentleman's work when he was an active trade union official.
§ Mr. Fairbairn
My hon. Friend is discussing the duties of trade unions. I have always thought that the duties of trade unions were exactly the same as the duties of parents —to protect their children from injury and to promote their prosperity.
§ Mr. Henderson
Who am I to disagree with such a learned definition?
I sincerely congratulate the hon. Member for Midlothian on bringing such a useful measure before the House. It has been suggested that it should be known as "Eadie's law". I should have thought that "Eadie's edict" was more euphonious. Such a title would make at least as much sense to me as its present one, Prescription and Limitation (Scotland) Bill.
The hon. Member for Midlothian acknowledged the important work of the Scottish Law Commission, which was his source of information and led to the production of the Bill. Speaking as one who can be pretty cynical about lawyers—in the House sometimes we say some rather hard things about what the Scottish Law Commission is, or more often is not, doing—I asked the Library to give me the names of the men and women who gave their time to the important work of the Scottish Law Commission. They hide their light very deep under a bushel. However, report No. 74 of the commission, which deals with the subject, mercifully lists them. Lord Maxwell, Mr. Bertram, Dr. Clive, Mr. Murray and Sheriff Nicholson probably are not names which immediately come to the mind of everyone sitting in the miners' welfare centre in Lochgelly. However, they have performed a valuable role in bringing to the attention of the House the needs of this aspect of the law. Just for once, I think that we should be graciously grateful to them.
I understand from my further researches, after having been disabused of some of my wrongful ideas at the beginning, that prescription and limitation controls the 1125 periods within which a pursuer for damages in a personal injuries claim can legally bring an action against defenders.
In some advice that I was given I was told:The Bill is particularly important in cases where injuries reveal themselves over a long period of time, such as pneumoconiosis, asbestosis, radiation diseases, brain tumours or industrial deafness. In addition this has implications for employers and insurance companies, the former who might have to maintain policies over a longer period of time, the latter because they might be liable long after the initial period in which an injury started to occur.When I came to learn or research what was meant by "prescription and limitation", I could follow very readily the idea that to anyone sitting in some property the old adage applied about possession being nine tenths of the law. However, as far as I could make out, if prescription was tight — if the period during which anyone could challenge that person's right to that property was short — possession was rather more than nine tenths of the law, and that, if the period was lengthened, possession might be rather less than nine tenths of the law.
Although it sounds good from the point of view of anyone sitting on property to shorten the period of prescription, it would be disadvantageous to anyone in the category of those with whom we are concerned in this debate—those who have suffered an injury. Prescription would make it more difficult for such a person to pursue a case after a time. It is difficult to strike a balance.
§ Mr. Fairbairn
If my hon. Friend is interested—I am sure that my hon. and learned Friend the Solicitor-General for Scotland would be happy to do this for him — if he cares to go to the Library, in the left hand corner of the first room he will find the section on Scottish law. There he will discover that under the law of Scotland there are innumerable prescriptions — triennial, quin-quennial, sexennial, bicentennial, and so on. They cover all sorts of matter, including his debts. He would be very wise if he went and read about them
§ Mr. Henderson
I am learning a great deal this morning.
As I understand it, the main objective of the Bill is to help sufferers who only lately get the causes of their injuries diagnosed. My first question is whether the whole Bill is about personal injury only, or whether it covers other types of litigation. Clause 2, which contains the two replacement sections, 17 and 18, is quite explicit. New section 17 applies todamages in respect of personal injuries.New section 18 appliesfollowing the death of any person from personal injuries.The provisions deal with personal injuries and their prescription and limitation. However, unless there is some subtlety about section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940, clause 1 does not refer specifically to personal injuries. Perhaps some hon. and learned Member will be able to relieve my anxiety.
I say by way of a digression that it is interesting how, in 1940, the House had time to concern itself with the Law Reform (Miscellaneous Provisions) (Scotland) Act. In that year of all years I cannot help feeling that when Adolf Hitler heard about it he must have begun to wonder whether he could possibly win the war if the House had time to put through such an Act of Parliament.
§ Mr. Fairbairn
I apologise to the author of the Bill, the hon. Member for Midlothian (Mr. Eadie), but perhaps I may be allowed to explain my understanding of the effect of clause 1.
Clause 2 contains new sections 17 and 18 to replace sections 17 to 19 of the Prescription and Limitation (Scotland) Act 1973. Those appear in part II of the Act, which deals solely with actions for personal injury. Clause 1 is a limitation of the right of any defender in any action to recover damages, or his share of the damages of other defenders who were, in the words of the Bill, "wrongdoers". The new sections are not parallel with clause 1, but there is a limitation of defenders to take action against other defenders which in no way encroaches on the excellence of the sections.
§ Mr. Henderson
I am grateful to my hon. and learned Friend for his explanation.
In the advice that I have been given about actions of relief that affect clause 1, I was told:the court might find that a single defender was only 20 per cent. to blame for an accident, but a third party was 80 per cent. to blame. The pursuer cannot claim damages of a third party, unless he raises a separate action, in which case he might be time-barred.However, a single defender, who pays 100 per cent. of the damages, can recover the appropriate amounts apportioned to the other defenders who have not been cited in an action.This Bill merely reclassifies the two year limitation as a two year prescription, so that a defender has two years to recover a portion of any damages he has to pay, after which time his right ceases entirely.As a layman reading such advice, I am a little anxious about the concept that one can bring an action against a party who admits liability, or is proven to be liable, and damages are awarded against that person who can then go along to a third party and claim for perhaps all, but certainly a proportion, of the damages that he has to pay as a result of that action. If that third party had been in court to defend his position, the damages might have been different, or responsibility for the distribution of damages might have been different. It is possible that someone can be done for money as a result of a court action when it may not be fair. One of my hon. and learned Friends may be able to stem my anxiety on that. This is a digression from the Bill, but one that arose out of its consideration.
§ Mr. Fairbairn
I do not know whether I make a very good stem, but I shall have a shot at stemming my hon. Friend's anxiety. The reason for clause 1 is that it would be inequitable if a pursuer were able to raise an action in damages against, say, the hon. Member for Midlothian (Mr. Eadie), who is assoiled, and he then raises it against the hon. Member for Aberdeen, North (Mr. Hughes), who is assoiled so he has shot at someone else. It would be most inequitable if he sued all the people against whom he believed that he had a remedy.
As to damages for defenders, let us take the simple case of a motor accident in which the driver was distracted by some other person doing something careless. The driver was careless because he should not have been distracted. But the other person was careless because he distracted him, perhaps by waving a banner. In those circumstances, if the injured party sues only the driver, the amount of the injury assessed in damages will be assessed for the injured person and will be awarded against the only defender. If that defender only wishes to get an action of relief against the other defender, he can raise such an action to get relief on the whole of the damages awarded against him.
§ Mr. Henderson
The way in which hon. Members get free advice on all sorts of subjects is marvellous.
§ Mr. Henderson
It is free to me. I am grateful to my hon. and learned Friend for that explanation.
I shall revert to the difference, which I was trying to explain to myself, between prescription and limitation. The limitation, I was told, has a similar effect to prescription, although it refers to procedures rather than to substantive rights. For example, after the lapse of time, a claim is no longer maintainable, although the right still exists. That is because it is more difficult for the evidence to be reliable after a long gap. The conclusion of the advice given to me was:The moral claim of the pursuer, however, is continued to be recognised.I should have thought that a moral claim is not much good if one cannot get something for it. As I understand it, the Bill helps to deal with this problem.
A prescription period of 20 years, which has often applied in the past, may seem a long time. However, one would not be pleased about it if one went to one's doctor 20 years after entering the House of Commons having been a miner until arriving here, only to be told, "You've got pneumoconiosis. I am sorry about that, but the chopper came down last year." Presumably, one could have a moral claim for suffering from an injury, but not be getting anything for it. As I understand it, the Bill relieves that problem.
My next point relates to something about which I asked earlier. Are we only restricting ourselves to personal injuries? Again, I was told that in any personal injury case the principle of damnum, injuria, datum is invariably applied before the action can proceed. I can follow that people have to be aware that they are seriously injured and that that would be injuria, and that they have to establish a cause or link, and I imagine that that might be datum. However, they have also to define who is responsible, and presumably that is the damnum. Is it damnum by virtue of being responsible in the sense of proven to be responsible, or has the person only to show that he might have been responsible?
We have recently heard about Cairnryan, where several companies have been involved, at various stages, in the braking up of the Ark Royal. The Health and Safety Executive seems to have removed the danger, but if in subsequent years one of the people working on that job is found to have asbestosis, how could he possibly say which of his employers at which period during the breaking up of that ship was responsible for his getting asbestosis? Hon. Members will remember the debate in which this subject was discussed. I have a letter which my hon. Friend the Member for Galloway and Upper Nithsdale (Mr. Lang), who is taking an active interest in this matter because it is in his constituency, has had from the Under-Secretary of State for Employment. It shows clearly that the Health and Safety Executive has been active and energetic in looking after the welfare and interests of the people on that site.
There is no doubt that at one point a complaint was received by the Health and Safety Executive that men stripping asbestos were not wearing the necessary protective equipment. A visit was paid the following day, and as the complaint was found to be justified an immediate prohibition was issued forbidding the further 1128 stripping of asbestos on the ship and jetty. The report went to the procurator fiscal. Immediate action was taken. When the matter was brought to the attention of the House, the present employers on the site drew attention to the fact that hon. Members were worrying about something that had taken place in the past. They pointed out that as employers they were being thoroughly responsible. They were working closely with the Health and Safety Executive and on site there was a complete specialist asbestos decontamination unit, full respiratory apparatus and special clothing. They had a contract with a company authorised for the disposal of asbestos, which takes asbestos away as soon as the asbestos stripping team have removed it from the ship, and it is sealed in special bags.
If a court case arose 20 years later, that firm, which has probably taken more asbestos out of the Ark Royal than the previous firm, and been there longer, could have a claim made against it as it was the one principally working with asbestos on that site at about that time. It might well be, however, that the previous firm, which had only been working there for a short time, had to be pulled up by the HSE because of the way it was handling asbestos. It would not be at all easy for anyone 20 years later to sort out who was responsible.
§ Mr. Fairbairn
This is an important point. I do not want to be specific about this case, but in a similar case I should imagine that the pursuer would be advised to sue the defender who had demonstrated fault. It would plainly be impossible to say that that particle of asbestos entered that lung on this date and not on that date. If the pursuer could demonstrate that while he was working there he did not have protective breathing apparatus, or whatever one wears, which is demonstrated in an exhibition in the Upper Hall—I would commend it to those who have not seen it—
§ Mr. Fairbairn
I do not have an interest. I do not sell it. There is an exhibition to be held next week in which I would declare my interest. If anyone has not done his Christmas shopping, he can come and see me when he has viewed that exhibition.
The pursuer would sue the party who had demonstrated the faulty procedure. If that party could establish that the injury had occurred during the period when the non-faulty employer was there—I do not see how he could do that —he would have his remedy by calling him as a second defender. The pursuer's position would be protected, although it is always a difficult matter in law to establish who was at fault if there are successive employers. a is good enough for the pursuer if one is at fault provided that he did not take off his goggles and invoke the concept of non volenti fit injuria.
§ Mr. Henderson
I thank my hon. and learned Friend. The second part of clause 2 replaces section 18 of the Prescription and Limitation (Scotland) Act 1973. I worry about the establishment of the cause of death. In the illustrative example of the tragic case given by my hon. and learned Friend, one could go further and ask, if death had occurred, what had caused it. Subsection (1) of the proposed replacement for section 18 provides:This section applies to any action in which, following the death of any person from personal injuries, damages are claimed in respect of the injuries or the death.Subsection (4) provides: 1129and that person subsequently dies in consequence of those injuries.That is clear. But if those sensible provisions for relatives and executors apply when pursuing a claim for injury, will they apply when the subject, who might have a valid claim for damages as a result of injury, dies for reasons other than those injuries? I shall be grateful for clarification.
§ Mr. Eadie
There are anomalies in everything. When one talks about how we die, it is said that we all die from one thing—from want of breath. I think that the hon. Gentleman is referring to the diagnostic procedure. Even if a post-mortem examination were carried out, and the person died from want of breath the medical certificate could give pneumoconiosis or asbestosis as a secondary cause of death. That opens up a tremendous avenue for argument. The hon. Gentleman is dealing with anomalies. My Bill is not bold enough to deal with them. There are bound to be anomalies. I am not producing a perfect Bill which will deal with every anomaly, although we do well to be aware of them.
§ Mr. Henderson
I am grateful to the hon. Gentleman.
I should like some clarification of clause 4. It is curious that the second part of the replacement for section 23(A) is not in the Scottish Law Commission's draft Bill published in its report No. 74. The reason why there has been an afterthought on that intrigues me. It is a substantive point. Replacement section 23(A) provides that a Scottish courtshall apply any relevant rules of law of that country relating to the extinction of the obligation or the limitation of time within which proceedings may be brought to enforce the obligation to the exclusion of any corresponding rule of Scots law.That seems to be mandatory in all circumstances. One normally regards Scots lawyers as extremely jealous of their privileges, and when I looked at the Scottish Law Commission's report on that I followed entirely the argument on page 36, paragraph 7.7, which stated:In our view, the aim of the law should be to secure that fair effect is given to the proper law as a whole. The foreign rules should be applied whether their effect is to extinguish the obligation or merely to bar a right of action after the lapse of time.I could follow paragraph 7.11, which states:We continue to accept that a judgment of the courts of the lex causae upon a limitation point should be regarded as a judgment falling to be recognised in scotland.I followed the argument there, but the report then continued:In relation, however, to the decisions of courts other than those of the lex causae … we have concluded … that legislation would be inappropriate and that this is an area which should be left for development by the courts.It seems that in its draft Bill, which the hon. Gentleman has used for the basis of his Bill, the Law Commission has changed its mind on that point. I should have thought that under clause 4 it would be mandatory in all circumstances for the relevant rules of a country to be taken as being binding on the Scottish court despite the fact that paragraph 7.12 of the commission's report states:The important question is which legal system should be applied in determining whether a foreign judgment on a limitation point is to be viewed as a decision on the merits. In our view, it should be the lex causae. In order to ascertain whether the lex causae has been applied it would be necessary for the Scottish court to examine the judgment of the foreign court.1130 I assume that in examining the judgment it would take a view of the judgment, which is not the same thing as accepting the judgment of the foreign court. Paragraph 7.13 states:This approach has even more justification if the lex causae being applied by the foreign court is the law of Scotland.That is a valid approach. As the commission states,It would seem wholly inappropriate if a subsisting obligation under Scots law were to be regarded as discharged by a prior judgment of a foreign court".I shall be grateful to learn whether the commission's views have been carried forward properly in clause 4.
I am sorry if some of my questions seem naive to my hon. and learned Friends. However, I am impressed by what has been said by those who understand legal matters. They have told me that the Bill clarifies the law substantially and that it will be a valuable measure. If the Bill clarifies the law —I have explained some of the difficulties that I find in understanding parts of it—that is an indication of how grateful we must be to the hon. Member for Midlothian for having sought to clarify it. If, as I expect, my anxieties are not as real as I fear, I shall have no hesitation in supporting the Bill.
§ The Solicitor-General for Scotland (Mr. Peter Fraser)
Everyone who has participated in the debate after the hon. Member for Midlothian (Mr. Eadie) has congratulated him on his good luck in the ballot and applauded the action that he has taken in introducing the Bill. The hon. Gentleman has long enjoyed a reputation for having unswerving and single-minded concern for those who work in the coal mining industry. Those of my Front Bench colleagues who have had to deal with him on coal issues have always been well aware that they were dealing with someone who has not confined himself to an academic or dilettante interest in the subject. It is clear that the hon. Gentleman has a deep and abiding involvement which stems from a lifetime of experience in the coal industry. As my hon. Friend the Member for Fife, North-East (Mr. Henderson) said, my right hon. and hon. Friends may not always agree with what the hon. Gentleman has to say about the industry, but it is acknowledged by us all that he speaks with great authority on coal mining issues.
The hon. Gentleman's preoccupation with the industry may seem at first sight somewhat remote from the subject matter of the Bill. However, we heard him speak movingly about the tragedies that can arise following work over a considerable period in the pits, especially those that stem from that most unpleasant and unhappy of diseases that is called pneumoconiosis. Like my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn), I well remember seeing clients who were suffering from that disease. I well remember also hearing clients who were suffering from pneumoconiosis or asbestosis. I am sure that the hon. Gentleman's recollection of the events that he described is still extremely vivid.
Instead of merely showing a broad interest in the coal industry, the hon. Gentleman has shown a sophisticated appreciation of the value of law reforms of this character for those whose interests should be safeguarded. It is important that the points of law with which they are concerned should be made clear. Having secured a place high in the ballot, the hon. Gentleman might well have decided to deal with a fashionable subject without much regard to its long-term worth.
1131 On the face of it, as the hon. Gentleman said, the Bill is rather technical in its nature. None the less, I assure the hon. Gentleman that it is most welcome. The substance of the Bill will benefit all parties concerned in personal injury actions and it is thus to be welcomed. I hope that all hon. Members who are present will give the Bill the support that it deserves. I assure the hon. Gentleman that the Government will give the Bill every support in the House and in the other place. It is an important measure of law reform. based on report No. 74 by the Scottish Law Commission.
I agree with the hon. Gentleman that the Bill's title is daunting. It has to be admitted that, on the face of it, the material contained within it is scarcely calculated to accelerate the flow of adrenalin in anyone other than the most dedicated of lawyers. However, the Bill is a significant step forward in making the law relating to personal injury actions more readily understood and more likely to be helpful to those who require its protection. We can pride ourselves that Scots law in this area has already gained ready and wide acceptance, but we must look to ways of improving the law. The report of the Scottish Law Commission, on which the Bill is in part based, shows that while the general principles of the law are basically right, there are, as always, areas in which improvements can be made.
The hon. Gentleman's Bill is right to maintain the basic principles and to make amendments to the principal Act of 1973 so as to remove doubts and uncertainties within the framework of the law. I am grateful to my hon. and learned Friend the Member for Perth and Kinross for his agreement that the basic principles set out in the 1973 Act should be maintained, although. as he would say and as I accept, they require the improvements that the Bill provides.
Substantial work has already been undertaken by the Scottish Law Commission in formulating recommendations for law reform in this area. I think that all hon. Members will acknowledge the work that has been done by the commission. It is opportune that we should be discussing a Bill that seeks to implement the recommendations of the commission. There are times—this is one of them—when the Government are not the most popular of bodies in the eyes of the commission. By introducing the Bill the hon. Gentleman has escaped some of the strictures contained in its latest 18th annual report, which criticises the apparent delay in implementing some of its reports. The hon. Gentleman will be well aware that the report on which he has based his Bill was dated 16 November 1982. Immediately above that date we see that the report was signed by a distinguished and well known lawyer who bears the name R. Eadie.
I recently had cause to visit the Scottish Law Commission together with my hon. Friend the Minister for Home Affairs and the Environment at the Scottish Office. The Bill was discussed with members of the commission during the course of that visit and they made clear to both of us how pleased they were to see this piece of legislation coming to the House.
I have some sympathy with the commission's view on delays. It expends considerable time and effort carrying out consultations and formulating reports and recommendations, often in difficult and complex areas of law. It is understandably anxious that its recommendations 1132 should be implemented, and I recognise that at times it is difficult for the commission to temper that anxiety with patience.
The Government recognise the importance of law reform in all areas, especially where the law deals with the right to obtain recompense for injury. However, the Government must be aware of their much wider responsibilities in the promotion of legislation, and all hon. Members will be aware of how crowded the legislative programme can become. In those circum-stances, it is sometimes difficult to find time even for Bills of this importance. In my position as Minister with some responsibility for the Scottish Law Commission. I am especially grateful to the hon. Member for Midlothian for choosing this Bill and for enabling several Scottish Law Commission proposals to pass into law.
The report of the commission, and the hon. Gentleman's Bill, have received widespread approval. I am sure that hon. Members will support the Bill now that its main principles have been explained. I hope that hon. Members realise that the Bill' s apparently technical nature is a veneer overlaying provisions that are of real practical benefit to those pursuing actions to recover damages for personal injury.
We are all aware of the difficulties of those suffering from a disease caused by their working conditions. which may not reveal itself until some considerable time after it has been contracted. Sometimes the disease or injury may not be realised. I know that the hon. Member for Midlothian has experienced more than his fair share of such cases. As he said, it would be inequitable for such cases to become time-barred when the injured person cannot know that he is suffering from an injury that could give rise to a claim for damages. We can take some pride in the fact that Scottish law already caters for such matters. The basic substance of our law has received widespread support, but we must continue to find ways in which the law can be improved and the doubts and uncertainties resolved. As the Bill seeks to do that, it should be welcomed.
We must also recognise that, however proud we may be of the legal system in Scotland, our laws must dovetail with those of other countries. In times of increasing international trade, and with our membership of the European Community, we cannot afford to take too parochial a view. There are times when it is right to look outwards and to deal properly with cases that have a foreign element. In doing so we must have regard to what is generally described as the principle of the comity of law. That is the reasonable principle that our law cannot adopt an isolationist approach and must, so far as possible, have regard to the need for good legal manners between states. I am glad that the Bill seeks to deal with cases where private international law questions arise. I can tell my hon. Friend the Member for Fife, North-East that the Bill provides that where a foreign law governs an obligation, any rules in the foreign legal system on prescription and limitation of actions must be applied by the Scottish courts to the exclusion of corresponding Scottish rules about such matters. In that respect, the Bill observes good legal manners.
I hope that what I have said illustrates the main aims of the Bill. Before this debate hon. Members might well have asked why we need such apparently technical rules, which prevent actions being raised after the lapse of a period of time from a certain event. The hon. Member for 1133 Midlothian—my hon. and learned Friend the Member for Perth and Kinross elaborated on it—explained why the rules are necessary, and I agree entirely with his reasoning. It would be inappropriate for all parties to an action—not just the pursuer and defender, but any third parties—to have an open-ended situation in which actions could be raised at any time, either by injured parties or by their representatives or relatives. That would be inequitable for the defender, and the hon. Gentleman will accept that even for an employer there must come a time when the books are closed. The administration of any organisation, even at a time of improving technology, would become seriously overburdened if records had to be kept indefinitely to guard against the possibility of a claim for damages for personal injuries.
If we allowed the position to remain open-ended, it would not be of major benefit to a claimant for damages. As the hon. Gentleman said, and as was mentioned especially by my hon. and learned Friend the Member for Perth and Kinross, the majority of actions for personal injuries depend, to a greater or lesser extent, on eye-witness evidence of the events leading up to an accident, or the presence of harmful or unsafe working conditions. With the passage of time the recollection of facts and circumstances becomes ever more hazy, and in effect useless in an attempt to ascertain the sequence of events.
A point that has thus far been understated in the debate is that, even if the legislation provides for a three-year period, it would be an error to assume that eye witnesses shall give evidence in court only within three years. It may be a matter for regret and for debate on another occasion, but sometimes it takes far too long, even after the expiry of the three-year period, to hear that evidence in court. A cut-off period is desirable for both sides to a dispute.
As my hon. and learned Friend said, the Bill has the undoubted benefit of dispensing with lethargy among potential claimants and their advisers, legal or otherwise. My hon. and learned Friend, and possibly my hon. friend the Member for Aberdeen, South (Mr. Malone), will have had experience more than once of the three-year period coming to an end, thus providing a spur to get people round the table and secure settlement of a claim. In those circumstances, the pursuer's lawyer can no longer afford to allow the process of settlement to proceed in a leisurely way. The matter must be sorted out immediately, or he must take the next important step of bringing the case before a court.
My hon. and learned Friend for Perth and Kinross made an extremely valid point when he referred to the well-known phenomenon of the psychological overlay that occurs with those who have suffered personal injury. I am by no means suggesting that all these people are malingerers or are trying to exaggerate their injuries to ensure greater compensation. Being preoccupied with their injuries, which are perhaps the major event in their lives, there is often the prospect that until the action is settled their return to good health will be impeded. It is right, therefore, that the Bill does not attempt to change that basic approach. In that regard the Bill implements the Scottish Law Commission recommendation 10 that the limitation period for personal injury action should remain at three years.
The Government are glad that the Bill does not seek to amend the basic framework around which the detail of the 1134 law is constructed. This is especially so as the Scottish Law Commission, from its extensive consultations prior to the formulation of its report No. 74, ascertained that there was general content in Scotland with the basic principles.
The Bill is, however, an important attempt to move with the times by making the presentation of the law even clearer. That must be desirable, as clarity in the law makes it more readily understood and thus more likely to be used by those whom it is intended to benefit. I accept that my hon. Friend the Member for Fife, North-East does not believe that the Bill is wholly clear to the layman, but I hope he will accept that it is certainly a considerable improvement on the law at present. I hope, too, in dealing with some of his points to confirm to him that his anxieties are in large measure probably misplaced.
I think that the hon. Member for Midlothian has got the balance right in his Bill and the Government warmly support its introduction. I hope that he will not take this amiss, but the Government may wish to consider whether minor amendments should be introduced at a later stage. I hope the hon. Gentleman appreciates that if that is done it will not in any way be an effort to neuter his Bill or to distort the essential principles on which it is based, but rather, with his agreement, to improve the detail.
This Bill has not been drafted in haste to take advantage of a place in the private Members' ballot. Any hon. Member who cares to read consultative memorandum No. 45 of the Scottish Law Commission entitled, "Time Limits in Actions for Personal Injuries", which was published on 17 April 1980, will find that there has been a history of deliberation extending back to the inclusion of prescription and limitation in the commission's first programme of reform, which was first approved back in October 1965.
In 1970 the Scottish Law Commission submitted a report which proposed far-reaching changes in Scottish law relating to prescription and limitation in civil actions. This report No. 15, entitled, "Reform of the Law relating to Prescription and Limitation of Actions", sought to rationalise and restate the law. That report was implemented with minor amendments by the Prescription and Limitation (Scotland) Act 1973, to which reference has repeatedly been made. It is upon that Act that the hon. Gentleman's Bill seeks to build in its main provisions. Part I of that Act deals with prescription, but excludes actions for personal injuries. Part II of the Act consists of a consolidation, with minor amendments, which dealt almost exclusively with personal injuries.
The Scottish Law Commission report did not suggest any major changes in the law relating to personal injury claims. The commission explained that it did not find it easy to justify the existing distinction in limitation periods between cases of personal injury and cases of damage to property. However, at that time, there had been recent legislation which applied a uniform period of three years for cases of personal injury on both sides of the border. For those reasons the Scottish Law Commission made no specific recommendations in its 1970 report for reforms in the law dealing with personal injury claims.
As I have said, it is, nevertheless, right that the law should be kept under review and be seen to move with the times to meet differing circumstances and problems. Since 1973 there has been a re-examination of the law of England by the Lord Chancellor's Law Reform Committee. The findings of that review were implemented by the Limitation Act 1975.
1135 In addition to those changes, the Scottish Law Commission was aware that there was some dissatisfaction with Scottish law, not the least of which was that the language of part II of the 1973 Act dealing with limitations was felt to be technical and often obscure. It was argued that even if only minor changes were made in the substance of the law a simplified restatement of the law was much needed. For those reasons the Scottish Law Commission felt that a further review of the Scottish position was justified, and that led to its report No. 74, on which the Bill is based. In promoting the Bill the hon. Gentleman had the option of proposing sweeping changes to the law or following closely the recommendations put forward by the Scottish Law Commission. He has chosen the latter course and I am glad that he has done so.
In any reform of the law there will, of necessity, be existing rules or procedures which, because of the passage of time, are found to have little relevance to present-day problems. It is also not unusual to find that because certain parts of the law are right in substance but complex in presentation they lose the benefit which they were designed to confer, simply because people cannot understand what they are all about. We must guard against complacency, but at the same time we should not lose sight of basic sound principles in a flurry of ill-considered and excessive change. The hon. Gentleman's Bill does not suffer from that, based as it is on the proposals of the Scottish Law Commission.
I hope the hon. Gentleman will not take it amiss if I now make further comments on the detail of his Bill, although he himself gave a clear rundown of its main aims and provisions. Some hon. Members, including my hon. Friend the Member for Fife, North-East, may find it helpful if I lift the curtan a little to reveal why certain courses were followed.
Apart from changes to the 1973 Act relating to the provisions dealing with time limits in personal injury cases, the Bill deals with one or two other issues of importance which possibly have not attracted quite the same interest or comment during the debate. The first of these is in clause 1, which inserts a new section 8A in the 1973 Act. This basks in the somewhat luxuriant title ofExtinction of obligations to make contributions between wrongdoers.I think that my hon. Friend the Member for Fife, North-East had cause to wonder what on earth that was all about.
In any case involving damages claims, the court, in awarding damages or expenses, can apportion the total sum to be paid between or among the persons found liable to make payment. If, for example, two people are found by the courts to be at fault in a motor accident in which, say, a passenger or pedestrian is injured—the type of example that has already been put to the House—the court might award damages on the basis that one of the two people was 60 per cent. to blame and the other 40 per cent. The injured person could seek to recover the sums due from both parties in accordance with the share allocated by the court.
Alternatively, the injured person might simply recover the whole amount of damages from one of the two defendants. It would be inequitable not to allow the party who found that he had to pay to the full amount to the injured person to recover an appropriate amount from others who shared the blame. That is the essential principle of contribution between wrongdoers, or, as it is technically described in the law, an action of relief.
1136 Until 1963 there was no special time limit on the exercise of that right to enforce the obligation on another wrongdoer to contribute to the amount paid. Since 1963, however, a two-year limitation period has been imposed. That is, the right to obtain relief or contribution cannot be exercised by raising an action for payment after two years have expired from the date of the award of damages. The hon. Member for Midlothian, the Bill's promoter, explained in his opening speech what is meant by prescription and limitation. I am grateful to him for doing so early in the debate. I hope that it makes the Bill a little clearer to all who participate in the debate, but it will do no harm to remind hon. Members that prescription either consolidates or extinguishes a right or obligation, whereas limitation does not affect the right or obligation itself, but merely makes it unenforceable in a court. Whether that really amounts to a full explanation is not for me to say, but I hope that it is an accurate description of the law.
Bearing that in mind, the time limit applying to the actions of relief is a limitation, and is thus contained in part II of the 1973 Act. The Scottish Law Commission considered that aspect. It felt that there was strong justification for a short time limit, especially where the wrongdoers were parties to the original action. The commission therefore recommended retention of the two-year time limit but it considered that prescription rather than limitation should be the basis for the time limit.
Clause 1 therefore implements the commission's recommendation by retaining the two-year time limit, but reclassifies it as a prescription rather than a limitation. 'The effect of that change is that, rather than simply becoming unenforceable, the obligation to pay a proportion of the damages will be extinguished after two years.
I now come to what we might term the meat in the sandwich—clause 2. I do not think that I do an injustice to the other parts of the Bill when I say that this clause must be regarded as its main provision. Certainly the hon. Gentleman paid particular attention to it during his speech. The clause will certainly be of most interest to those involved in personal injury cases.
The clause inserts new sections 17 and 18 into the 1973 Act. They deal respectively with claims for personal injury not resulting in death and claims for injuries where death has occurred as a result of the injury. I said earlier that one of the main aims of the Scottish Law Commission and the hon. Member for Midlothian was to make the law more presentable. If we compare sections 17 to 19 of the 1973 Act with the new sections in clause 2, we can see a definite transformation. I am not sure whether it makes the arrangement for limitation change from an ugly duckling into a swan, but there is certainly some improvement.
I can tell those who complain frequently and bitterly about the manner in which changes to the law are often produced that the approach taken in the Bill is very desirable. Rather than attempting to stick little bits of paper into existing statutes — making it almost impossible for anyone other than an expert to understand —the Bill has followed the more desirable course of inserting two new sections into the 1973 Act, to replace two unclear sections.
New section 17 deals with claims for personal injuries not resulting in death. The Bill retains a limitation period of three years, after which the claim cannot be enforced by action in the courts. The actual period formed part of the Scottish Law Commission's investigations. In both Scotland and England less time is allowed for pursuing 1137 claims for personal injuries than for other claims. In the main, the period for other claims — subject to the exceptions mentioned by my hon. and learned Friend the Member for Perth and Kinross—is five years. It may seem a little odd that the law on personal injuries is less generous than the law for someone whose property is damaged.
In its consultative memorandum the commission quite properly declined to express a firm opinion one way or the other, but, rather, sought advice from those involved in the day-to-day problems. The commission's report discloses that, on consultation, views on whether the period should remain at three years or be extended to five years were almost equally divided. Those who opposed a change said that since actions were in the main put into court only at the last possible moment, a five-year period would simply mean a further delay of two years. On the other hand, it was argued that an extension of the period would be of assistance where the future development of an injury might be difficult to predict. That might be the case in orthopaedic problems. The commission doubted whether an extension to take account of problems arising in a minority of cases would be justified. It recommended, rightly in the Government's view, that on balance a period of three years should be retained. The hon. Member for Midlothian also put forward that view.
I am glad that the Bill also retains the basic principles that the limitation period should run from the date of injury or the date of knowledge. The commission's consultations revealed support for the existing law that the time limit should be reckoned from the date of the injury with an extension of the period for as long as the injured party remained in a state of justifiable ignorance of his injuries or their extent.
It might surprise some hon. Members to learn that the Bill does not attempt to define the actual date of injury. Some hon. Members may ask why. The short answer is that it would be extremely difficult to arrive at any suitable definition. By their nature, personal injuries cases raise problems of determining the exact date of an injury being sustained. It will readily be understood that this is especially so in cases involving progressive industrial diseases. It would be impossible for the legislature to take account of all the facts and circumstances that might arise in any case or number of cases. There must be some flexibility to enable the courts to make appropriate inquiries into the facts of any particular case.
My hon. Friend the Member for Fife, North-East mentioned a problem that has been the subject of debate in the House—that at Cairnryan in Galloway. I shall refer to a 1962 case before the Court of Session involving Mr. John Clark, a workman employed as a dresser in a foundry. He was X-rayed when he first entered his employer's service, and his lungs were found to be clear. Subsequent X-rays over a period of years confirmed that Mr. Clark had contracted pneumoconiosis. The judge hearing the case found that, having regard to the progressive nature of pneumoconiosis and the difficulty of attributing its onset to an exact date, the question whether the limitation period should apply could not be decided until an inquiry into the facts had taken place.
That case relates to the type of problem raised by my hon. Friend the Member for Fife, North-East. People in a particular industry often change their employer, and 1138 there is undoubtedly difficulty in trying to determine during which period of employment an industrial disease began its unhappy progress. The general problems that we have considered and that case reveal the need for flexibility, and it is right that the Bill does not seek to impose rigidity on consideration of these cases.
The Bill relates personal injury to an "act or omission", and the hon. Gentleman has given us his reasons for including that expression. I support the amendment that he seeks to make. I am sure hon. Members will agree that it is desirable that legislation should avoid the use of pejorative expressions wherever possible. The hon. Gentleman has given us a definite improvement by substituting "act or omission" for "act, neglect, or default". Hon. Members will agree with me that, in retaining the principle which extends the time limit in the case of a person not being "aware of his injury", the Bill is couched in a much more readable and readily understandable form than the replaced sections.
In essence, before the time limit can commence, the injured party must be aware of three relevant facts: first, that he is suffering from injuries sufficiently serious to justify an action for damages being brought; secondly, that the injuries were attributable to an "act or omission"—I have already applauded the inclusion of that term—and, thirdly, that the act or omission was on the part of the defender, the person whom he seeks to sue.
Only when all those facts are in the knowledge of the injured person will the time limit begin to run. I hope that that clarifies the position. The Bill, quite rightly, does not give carte blanche to the injured person. If it was reasonably practicable for him to have become aware of the relevant facts, the time limit will be reckoned from that date, whether the person concerned was, or was not, aware of the necessary facts.
I am sure that the hon. Member for Midlothian can envisage a miner being well aware of the fact that he is coughing badly and finding great difficulty in moving about. Neither he nor anyone else can ignore that and pretend that it has not happened. He should go to see his doctor to ascertain whether his unfitness and lung restriction are the consequences of pneumoconiosis or asbestosis, and not some other cause. It is a matter of common sense that there should be a provision to cover such circumstances.
The Scottish Law Commission found that ignorance of fault or liability should not be made a relevant fact, and it did not recommend any change in the law on that point. The commission recommended, however, that the law should contain a clear statement. I am pleased that the Bill picks up that recommendation in new section 22(3) in clause 3. This makes it clear that the question whether any act or omission could be the subject of an action is considered irrelevant in ascertaining the state of knowledge of the injured party. I am pleased that the Bill contains provisions in the proposed new sections 17 and 18 dealing with legal disability. The hon. Gentleman has given us his reasons for those provisions.
There were certainly some anomalies in this area and I agree with the line that the hon. Gentleman has taken. The Bill retains the general requirement that a person suffering from a legal disability by being under age or of unsound mind should not be prejudiced by the running of the limitation period. Such a person is clearly in no position to do anything to stop the time running by raising 1139 a court action while suffering from that legal disability. The hon. Gentleman gave one or two examples. Perhaps I may elaborate briefly on this.
A child under age is clearly under a legal disability. The 1973 Act, however, made a distinction for children in the custody of grandparents as well as in the normal close relationship between parent and child, but excluded other close relatives and guardians. Responses received by the Scottish Law Commission supported the view that that distinction should be removed as it was unfair to a child whose parents might have a contrary interest. The example has already been cited in which the parent having custody of the child was at fault and was the cause of the injury suffered by the child.
On balance, therefore, the commission concluded that the rules on legal disability should be extended to claims for personal injury. The Bill is to be commended for picking up that recommendation and for the removal of the distinction between a child and a child in the custody of his parents.
Another problem which caused great concern was that of supervening mental illness. Basically, the existing law provides that a time limit should not run against a person suffering from unsoundness of mind. That exemption does not extend, however, to a person who is of sound mind at the time of commencement of the time limit but subsequently suffers from mental illness. At present. that person's disability would not prevent the time limit from continuing to run. Again, it is a matter of common sense that that could cause considerable disadvantage and prejudice.
South of the border, the Lord Chancellor's Law Reform Committee tackled this problem. Reference to its comments graphically illustrates the problem. It says:There is something objectionable in a rule which prevents time running against a person who is knocked down by a motor vehicle and thereby imediately rendered mentally ill, but which lets time run against him if the accident merely causes 24 hours' unconsciousness followed by mental illness".The Scottish Law Commission has adopted a straightforward approach to this problem. Recommendation No. 11 states that time limits should not run against some one suffering from a mental illness either before or after the date when the time limit commenced. That straightforward approach is reflected in the fact that the subsequently occurring mental illness does not have to be connected with the event giving rise to the personal injury.
In introducing the Bill the hon. Member for Midlothian stressed throughout that legislation must not be seen to favour one party excessively at the expense of the other. I believe that his Bill strikes that balance, especially in relation to people suffering from legal disability.
The Bill picks up the Scottish Law Commission's recommendation No. 11 by narrowing the rules on legal disabaility in a particular way. Under the present law, the legal disability rules apply to anyone who is able to exercise the right of action.
As the hon. Gentleman said, that includes executors and assignees of an injured person. That means that a defender in an action can be prejudiced by the right to pursue the claim being transferred to a person who is under a legal disability, thus interrupting the limitation period. I agree that that is difficult to justify. I am pleased to note that the hon. Gentleman also agrees, because he has limited the rules on legal disability so that they will operate only in respect ofthe person who sustained the injuries".1140 It is interesting to note that all of these improvements can be found in one small subsection extending to only five lines. That is indicative of how simple words which might seem to be accidental are in fact the product of a good deal of careful thought which is easily overlooked unless we take the trouble, as I hope we are doing today, to look into what lies behind the words.
New section 18 deals with actions where death has resulted from personal injuries. Its contents follow largely the same basic principles as those applied in new section 17, which concerns cases in which death did not result. I hope that it will not be necessary to rehearse them. My hon. Friend the Member for Fife, North-East wanted to understand the detail of cases to which new sections 17 and 18 would apply. He will find that the explanatory note in the Scottish Law Commission's document spells such details out clearly. The document provides many examples of situations in which those sections would apply.
At present, a claimant in a fatal accident, be he an executor or relative of the deceased, has three years from the date of death, or from the date of his knowledge that a claim should be made—whichever is later—in which to commence proceedings. It is recognised that relatives' rights are different from those of the deceased, being designed to compensate losses which they, rather than the deceased, suffer. On the other hand, their rights are not wholly independent of the deceased because they arise from the same wrong.
Thus, if a deceased's own rights were time-barred at the date of his death, the rights of his relatives are also time barred. The commission carried out consultations on whether the rule should apply only to executors because of the separate rights which relatives acquire on the injured person's death.
Opinions were expressed that that would open the way to prosecution of long-delayed claims and the commission recommended in its report that this rule should apply both to executors and to relatives.
That recommendation is to be found in new section 18(4). It prevents executors or relatives from bringing an action based on injuries, or death from such injuries, if an action is already time-barred at the date of the injured person's death.
Clause 3 picks up some necessary supplementary provisions.
§ Mr. Henderson
My hon. and learned Friend has explained several points. With regard to the point that he has just dealt with, am I right in assuming that the limitation applies to death from any cause, and not just to death as a result of the injuries?
§ The Solicitor-General for Scotland
This is a rather complicated matter. No claim on death would be possible if that death was not in some way the consequence of an injury caused by someone else. Does that explain my hon. Friend's point?
§ Mr. Henderson
I apologise, because I did no: put the question very well. Even if death were not caused by the injury, could a claim still be made for the injury provided that such a claim was made within a reasonable time after the death?
§ The Solicitor-General for Scotland
Perhaps my hon. Friend misunderstands. Perhaps we should take the example of a wife. A wife would have a claim for the death 1141 of her husband if his death was caused by someone else. If he suffered an injury for some time before then and, in the way of things, died, she would have no claim arising from that injury which did not cause his death, nor would she have a claim arising from his death. I hope that my hon. Friend understands the distinction.
I have already mentioned the issue dealt with in new section 22(3) and I do not propose to spend much time on the remainder. I should mention, however, the point raised in new section 22(27). This is important and deals with the knowledge of the pursuer. This subsection makes it clear that the test knowledge is at all times related to the original pursuer. It would be wrong to allow an assignation of a right of action to delay matters. This could be the case if the assignee can show that his knowledge can be reckoned only from the date when he took over the action.
The Bill takes the approach that the assignee must take over the case with the knowledge which the pursuer is considered to have. Thus the time limit will continue to run from the time the original pursuer ought to have been aware of the facts. I hope hon. Members will agree that this is the right approach.
Clause 4 departs from the domestic features of the Bill and introduces an international flavour. I can do no better than to repeat the view of the hon. Member for Midlothian, that the clause provides that in cases where the foreign law governs any situation the rules of limitation and prescription of that law should be applied. That matter was raised by my hon. Friend the Member for Fife, North-East, who asked whether the provision related only to personal injuries or whether there was a wider application. The short answer is that it goes wider than personal injuries.
Some hon. Members and some outside the House may be indignant that our corresponding rules of Scottish law are specifically excluded. It might be thought that we are taking the international approach too far. However, we need to take a balanced view. If we are to cold-shoulder foreign legal systems, we can hardly be surprised if we are treated in a similar fashion. We want to avoid that.
We cannot simply ignore the fact that in a case before the Scottish courts there is an obligation which, in principle, is governed by the law of a foreign country. The general aim of the law on this matter of the choice of law rules is to secure that, despite the fact that an action may have been raised in the Scottish courts which might otherwise have been raised in foreign courts, the decision which will be reached in the Scottish court as to whether the action is barred by lapse of time is similar to that which would have been reached by the foreign court. On that basis it is reasonable that the foreign rules of prescription and limitation should be applied, rather than the corresponding rules of Scottish law.
However, this will have the result that if the foreign limitation period is longer than that provided under Scottish law there might remain the possibility of litigation in the Scottish courts.
The Scottish Law Commission originally thought that that would be unfair and it therefore proposed that the long negative prescription, which has the effect of totally extinguishing obligations after 20 years, should apply to such claims which might otherwise remain enforceable under the foreign law. However in its report the commission re-examined that proposal and the Bill before us contains no such provision.
1142 It has been suggested to me that the commission's earlier view was right and that, as it noted in its report, it might become grossly inequitable to enforce certain rights against defenders after the lapse of a long period. I am not convinced that the Bill's provisions on this matter should be amended, but I am looking at this further, along with my right hon. and learned Friend the Lord Advocate, to see whether it might be appropriate to bring before the House, at a later stage, an amendment specifically to deal with that detailed point on private international law.
The hon. Member for Midlothian has rightly included some transitional provisions. It is necessary to preserve existing rights, obligations and proceedings. To do otherwise would be unfair. The proviso that my hon. Friend the Member for Fife, North-East mentioned in his comparison between the Bill and the Scottish Law Commission's recommendations covers that. The provision is a transitional arrangement.
I have talked for some time on the background to the Bill and the detailed provisions of the Bill itself. I hope hon. Members will agree with me that the subject matter of the Bill is worthy of detailed deliberation consonant with the detailed deliberations which have gone into its formulation and drafting.
I repeat the sentiments of the hon. Member for Midlothian. I am glad that an opportunity has been found to implement these very important recommendations in a sphere of law where the need for clarification has been recognised for some time. I am sure that if the Bill passes into law it will be of great benefit—the hon. Member must not underestimate the value of the Bill—to those who are involved in day-to-day practice with this area of law.
The Bill strikes the necessary balance between claimant and person claimed against and will assist not only those who are involved in claims, but also those, such as solicitors or trade union officials, who find themselves having to give advice on such claims.
I am grateful to the hon. Gentleman for promoting this Bill. 1 commend the Bill to the House and urge hon. Members to support it in obtaining its Second Reading today.
§ Mr. Gerald Malone (Aberdeen, South)
I am conscious of the fact that the hon. Member for Midlothian (Mr. Eadie) is labouring under a fusillade of congratulations from both sides of the House. When an hon. Member draws a high place in the ballot for private Members' Bills, the great temptation is to pick what looks like the most attractive parcel under the Christmas tree. However, to do so, does not always benefit the law or further the many causes that require the passing of important legislation. The fact that the hon. Member for Midlothian has chosen this important subject for his Bill is very much to his credit.
The Bill is a refining instrument in an area of law which has required constant refining over the years. It may be a matter of public disquiet that such an important subject requires further refining, but it is worth while to examine the history of personal injury legislation. As industries and the knowledge about how they operate have developed, so have legislation and practice. The hon. Member for Midlothian has, quite rightly, set his Bill in the context of the mining industry. I know only too well from my own legal practice, the roots of which are principally in 1143 Blantyre — which the hon. Member will know is a mining community in which my father took on many mining cases in the days before legal aid could be used to support the miners' claims — of the difficulties and complexities that surround the pursuit of personal injury claims of this type in the courts, and especially the problems of prescription and limitation facing litigants.
As technology has developed and the scope of personal injuries has become wider, so also has the law had to develop. A new approach is required in dealing with the law of limitation of actions when considering modern technology and the dangers presented by radiation and the marketing of new drugs. That is why I welcome the provision that the long negative prescription of 20 years will no longer apply in cases of this type and that the only limitation will be the three-year rule. A layman may regard a period of 20 years as inconceivable in personal injury actions, and believe that after 20 years a claim should have expired.
But I say emphatically that in new industry, especially where radiation is involved and when new drugs can be brought on to the market without their consequences being seen for many years, it is important to remove the 20-year prescriptive period. I welcome that aspect of the Bill.
I do not intend to go through this measure with a fine-toothed comb. I prefer to pick out those aspects of it which interest me. The second of them that I highlight is how to define when the injury occurred. It was widely acknowledged throughout the legal profession that the definition in the 1973 Act was lacking in many respects and that the test of reasonableness in the Act was not adequate. I welcome the new test which is included in the Bill allowing both actual knowledge and reasonable knowledge in the eyes of the court to be the test of the date of the injury and the period from which the limitation will run. That is a great improvement.
The third aspect concerns the advisability of restricting the limitation to three years. I have listened with some interest to what has been said about the limitation being as much to spur on the legal profession as to protect individuals on both sides of litigation. I wonder whether in the true sense of equity we should be looking to limitation as a spur on the profession rather than as simply a device to govern the relationship between pursuer and defender.
Many of us in the legal profession are prepared to accept that, when the triennium is on the point of expiring, action seems to take place with increasing rapidity. It would be foolish to suggest there should be no limitation of this kind. As long as the period of three years does not unnecessarily militate against fairness to the pursuer or the defender, it is correct to leave a period of three years as the basic test.
There are some problems to bear in mind about that three-year period. It is only fair to the legal profession as a whole to point out that as soon as a member of the profession is instructed in a reparation claim it is not proper practice simply to raise litigation. Proper practice is to investigate the claim fully and negotiate with those who are in a position to settle it. All those avenues of approach should be exhausted before any litigant is, in some senses, condemned to an even longer process of litigation in the courts.
To say that an action has commenced does not suggest when the action may be finished. In many cases the best interests of the pursuer are served by compromising and 1144 settling claims before they get to the lengthy and sometimes harrowing process of court actions. I ask all those hon. Members to bear in mind that the three-year period can be used to great effect in allowing litigants to settle claims rather than pursuing them in court.
I am pleased that this measure has been welcomed by hon. Members on both sides of the House. I am sure that that is a source of great pride to the hon. Member for Midlothian. I pay tribute again to him. He has picked on a very important area of the law. It is one which affects him closely. If I may extend the analogy that we have discussed about how this branch of the law affects workmen in industry, I suggest that it is a very workmanlike piece of legislation which will bring great long-term benefit.
§ Mr. Michael Hirst (Strathkelvin and Bearsden)
I echo the words of my hon. and learned Friend the Solicitor-General for Scotland in congratulating the hon. Member for Midlothian (Mr. Eadie) on introducing this legislation. The hon. Gentleman is to be congratulated further on the sincere and moving way in which he did so.
I hesitate to strike a slightly discordant note, but I ought not to let the occasion pass without saying how sorry I am that more hon. Members are not here to welcome this important legislation for Scotland.
The hon. Member for Midlothian said that it was not the liveliest Bill to introduce. I accept that, given the issues facing Scotland at present, it is a small measure. However, it is of great significance to the people of Scotland.
I represent a constituency where, traditionally, there has been much mining activity and I have come face to face with the victims of pneumoconiosis, who have struggled to get up the steps into the school where I hold my surgeries, who gasp for breath and who have considerable health problems as a result of the years that they have spent in mines. I welcome any measure that will enhance their right to compensation for the injuries that they have suffered.
I have a foot in both camps. The Conservative Benches have been well attended by hon. Members with a deep and detailed knowledge of the legal profession. Some 17 years ago, as an undergraduate in the university of Glasgow law department, I came across my first long negative prescription. When I had finished that. I never thought that there would be another occasion on which I would have cause to refer to it. Following the words of my hon. and learned Friend the Member for Perth and Kinross (Mr. Fairbairn), I am glad that I recognised that lawyers tended to be tedious, boring and rather long-winded, and so eschewed the legal profession for lusher pastures.
I wish to speak on this important matter because of a deep constituency interest. I have been a Member for less than six months. My first constituency case related to the widow of a service man who, in the opinion of my constituent, contracted cancer as a result of exposure to the tests that took place in the south Pacific in the 1950s. I know that inquiries are taking place into this incident and that it would be wrong for me to speak further about it. Moreover, the position in law of my constituent's late husband is somewhat different from that of an ordinary member of the community, because he was a service man.
That case was followed by another relating to a constituent who is still alive. In the late 1950s he was a 1145 research chemist engaged in the plastics and rubber industry. He spent many years establishing a causal link between his continuing debility and the materials with which he was involved in his research work. Eventually he established the medical connection between exposure to those chemicals and his current state of health, but he is time-barred from raising an action. Therefore. I welcome this legislation as a means of bringing him justice. Another constituent has founded the Cancer Prevention Society. The object of this charity is to promote public awareness of the hazards of noxious substances, which the hon. Member for Midlothian will recognise as being just as important for the victims of pneumoconiosis.
There is agreement on both sides of the House that the present law is unsatisfactory and that there are areas of doubt arising from the complicated wording of the 1973 Act. The worst problem—the Catch 22 situation—is the interaction of the long negative prescription and the three-year limitation of action which faces my constituent. Therefore, I welcome the Bill because it will eliminate the long negative prescription for personal injury.
I also welcome the redefinition of the three-year period within which a person must bring his action forward. I am glad that under the Bill consideration will be given specifically to the individual claimant, rather than to the test of the reasonable person who has access to appropriate advice. We must all welcome that enthusiastically.
On a more general note, we must be glad that there is now a proposal to bring Scottish law into line with the draft convention of the European Community which seeks to introduce uniform rules about the rights of people in actions for recompense for personal injury.
The health and safety at work legislation has not applied for much of the lifetime of people who are in their 40s, 50s or 60s. It is possible that causes of injury may be revealed in future for those who, during their working life, have been exposed to noxious substances and may not be aware of the dangers to their health.
Medical research may confirm a causal connection between injury and death and exposure to carcinogens. I have the report of the Cancer Prevention Society, which was founded by my constituent. It refers to no fewer than 1146 88 chemical carcinogens listed by the United States Department of Health and Human Services. I am conscious that the United Kingdom Health and Safety Executive has identified only 41 such chemical carcinogens. The American list contains a further 47 subjects which are reconised as carcinogenic.
The Scottish people should have the right to recover damages for injuries arising from exposure to such things in the past, whether as victims of pneumoconiosis or of exposure to carcinogens. I welcome the Bill.
I am encouraged by the fact that the work of the Scottish Law Commission—that body of able and erudite men—is being recognised today. It is to be hoped that it will soon have the opportunity to see the results of its exhaustive, readable and well presented document brought into law.
§ 1.6 pm
§ Mr. Eadie
With the leave of the House, I have three brief points to make in reply to the debate.
First, I appreciate the generous comments made by hon. Members. How can one express thanks for such generosity and for the general welcome that has been given to the Bill. I know of an 85-year-old lady who today will probably give a nod of approval to both her sons. I thank hon. Members for their genorosity.
My second point relates to the subjects raised by the hon. Member for Fife, North-East (Mr. Henderson). We should discuss in Committee any points of difficulty or matters of clarification.
Thirdly, I found the Solicitor-General's all-embracing welcome of the Bill helpful. He gave a type of undertaking when he said that he would want perhaps to study the Bill and table amendments in Committee. I welcome the strictures he imposed when he said that the purpose would be to strengthen rather than to weaken the Bill. Clearly, neither I nor any hon. Member in the House today, will quarrel with anything that can be done to strengthen the Bill.
With those few comments, I hope that the House will see fit to give my Bill a Second Reading.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committe pursuant to Standing Order No. 42 (Committal of Bills).