§ Order of the Day for the Second Reading read.
§ LORD DANESFORT
My Lords, I rise to propose that a Second Reading be given to the Bill which stands in my name. The object of the Bill is to enable non-motoring users of the road, such as pedestrians and pedal cyclists, when they are injured on the roads by a motor vehicle, to obtain compensation, and in the same way for compensation to be obtained when a pedestrian is killed. My Bill proposes that this compensation should be obtainable without the necessity of proving negligence on the part of the person who caused the accident, provided—and this a most important proviso—that the death or injury was not caused by the negligence of the person so killed or injured. If it is shown that the accident was caused by the negligence of the person killed or injured then, under the Bill, no claim for compensation arises.
This is admittedly an alteration of the existing law, but I hope to show your Lordships that the alteration is both just and necessary. May I say a few words about the dangers of the roads to-day? The position is really an intolerable one. The injuries on the roads have reached a figure which imposes intolerable suffering on tens of thousands of pedestrians and their relatives, and the figures have stirred the conscience of the nation. I shall not trouble your Lordships with many figures, but may I give a few concerning pre-motoring days? In the days of horse-drawn vehicles, when there were few, if any, motors on the road, statistics were not kept, but I have been able, by the courtesy of the Home Office, to get some statistics as to those early days which show the number of deaths and injuries in the Metropolitan police area. They have not got them for the whole country, but in the Metropolitan police area in the year 1904 the deaths were 123 and the injuries somewhat under 6,000. In the year 1930 the deaths were 1,322 and the injuries considerably over 54,000. I now come to the days after the advent of motors, and in 1930 I find that in the whole country the deaths on the road were 7,305 and the injuries 544 178,000. In the following year the numbers of killed and injured were 18 persons killed every day of the year, and 550 injured every day of the year.
I did my best to find, out of those total numbers of deaths and injuries, how many were cases of pedestrians, and by the help of the Home Office I was able to get statistics of that kind. I find this very remarkable result, that considerably more than half of the total deaths which took place in this country in the course of the year were deaths of pedestrians, and somewhat less than half the total number of persons injured were pedestrians also. I will give your Lordships the exact figures. In 1930, out of a total of 7,300 deaths on the roads, no fewer than 3,700 were cases of pedestrians who were killed, and out of 178,000 persons injured on the roads 71,000 were pedestrians. Many of the pedestrians who are in that terrible figure are young children, sometimes under five, sometimes under fifteen. I have seen statistics as to that, and it appears that something like 4,000 children were, in the course of the last three years, actually killed on the roads by motor vehicles. These are appalling figures, and it is rather interesting to compare them with the figures of the killed and wounded during the whole course of the South African War. During that War the number killed was 5,200, and the number wounded 22,000, as against the figures I have just recited to your Lordships.
Such being the appalling toll of the roads on pedestrians, may I shortly call your Lordships' attention to the difficulties under the existing law in the way of pedestrians—and in the term "pedestrians" I include pedal cyclists—obtaining compensation? The first fundamental difficulty arises from this fact. The motorist is always insured; he is bound to be by Act of Parliament; the pedestrian is rarely if ever insured; and the result is that the pedestrian, at his own cost, has to fight powerful insurance companies, who, in cases of death or serious disability, will raise all possible defences. I do not blame them for that. In minor cases I believe it is true that the insurance companies often behave generously enough, and pay compensation, though perhaps it may be inadequate, without bringing the injured 545 person into Court, but in the more serious cases they feel bound in their own interest to fight them and to raise every possible legal defence that is open to them.
Let us see what those legal defences are. The pedestrian goes into Court to claim compensation. The first obstacle which he has to surmount is the duty which is thrown upon him of proving negligence on the part of the driver. That is no easy task. If the pedestrian is killed then, of course, the main witness in support of the claim is not available. If, on the other hand, the pedestrian is seriously injured, his recollection, no doubt, is confused and is not very perfect, and he has to try to get outside witnesses in support of the claim on the ground of negligence against the motorist. It is exceedingly difficult and expensive to get those outside witnesses, and it is not at all easy for a pedestrian who is fighting his own case to go to that expense. The result is that in many cases the pedestrian is compelled to take what compensation the insurance company chooses to give him rather than indulge in a terribly costly litigation which his resources are unable to meet. I believe it is not too much to say that the dice are loaded against the pedestrian when he seeks compensation.
But let me assume that the pedestrian has got over the first difficulty in the Law Courts and has successfully proved negligence on the part of the motorist. What happens then? It is open to the insurance company to say: "True it is that the driver was negligent, but you were also negligent." In other words they raise what, is called in law, as your Lordships know, the defence of contributory negligence. The claimant has to rebut that defence. If he succeeds in doing so, well and good. If he fails, his claim is very liable to be defeated in toto. I doubt if there are many branches of the law on which there has been more litigation, and more very costly litigation, than this question of contributory negligence. I am not going to attempt to go into legal cases except one. I will take the very last one reported. It is a ease reported in The Times on. May 14 last, the case M'Lean versus Bell. I think your Lordships will agree that it was an amazing ease. The 546 facts are these. In February of 1929 a girl in Scotland was knocked down by a motor car and received very grave injuries. She claimed damages. The driver was insured and of course the claim was defended by the insurance company. They set up amongst other defences the defence of contributory negligence. What happened? In more than three years of litigation there were no fewer than four trials—two before juries—and finally the case went to the House of Lords. In May, 1932—that is, more than three years after the accident occurred—the House of Lords decided in favour of this girl and gave her £750 damages. How much was left after she had paid her own costs I do not know, but your Lordships can imagine.
§ LORD DANESFORT
I do not say that they did not deserve it, but I do say that this girl ought not to have been compelled to go to this gigantic cost in order to prove her claim. I ask your Lordships whether it is reasonable that an injured pedestrian, uninsured, should be faced with such intolerable litigation costs and delay in order to establish a just claim. The conclusion I draw is that if justice is to be done between the pedestrian on the one hand and on the other hand the man who injures him on the road you must do away with this defence of contributory negligence.
There is I think universal agreement both in this House and in the country that something must be done to remedy this state of things. It has been suggested more than once—I think it was suggested in this House—that public opinion should be roused. I answer that public opinion has been roused, and roused to a very considerable extent. But, my Lords, public opinion of itself has no executive force and if you want to give effect to it you must make it operative by appropriate legislation. There is legislation now before this House. There is the Bill introduced by my noble and learned friend Lord Buckmaster, who seeks to diminish the number of these accidents by imposing heavier penalties in criminal cases, and there is this present Bill which seeks to give compensation on a fairer and more just principle to the victims.
547 The justification for this Bill does not rest solely on the sufferings and the helplessness of the victims. There is a broader basis of justification for the Bill. It is this. Parliament has altered the law of this country in order to enable the motorists to travel at speeds and under conditions which, without that legislation, would have been utterly impossible. The result of this change in the law has brought about appalling dangers to pedestrians. The highways, instead of being reasonably safe places for pedestrians, have become almost the most dangerous places in the country. As compared with railways, of course, they are infinitely more dangerous. I need hardly remind your Lordships that a pedestrian has a Common Law right to use the roads: a Common Law right in common with all His Majesty's subjects, to use the roads in a reasonable manner. Now, however, if he uses the roads in a reasonable manner he gets killed. Is not the truth of the matter that a revolution has been effected in road traffic by legislation in favour of motorists? I ask your Lordships whether it is not reasonable that the law should be altered in favour of the pedestrian to the extent—I think the moderate extent—which I propose.
The principle of the alteration which I propose—namely, that the injured person should get compensation without having to prove negligence on the part of the driver—is no revolutionary proposal. It involves a principle which has already important legal and legislative analogies. I will not go into the long list of legal analogies, but may I give one only? It is a case decided a good many years ago, I think in the year 1880. It is the case of Powell versus Fall reported in 5 Q.B.D. relating to an occasion when a spark from a steam traction engine caused damage. The engine complied with the requirements of the Locomotive Act and there was no proof of negligence in its mode of use, but the owner was held liable at Common Law for damage, and in the course of his judgment in the Court of Appeal, Lord Justice Bramwell, a very well known Judge of great eminence, said:It is just and reasonable that if a person for his own advantage uses a dangerous machine, he should pay for the damage that it occasions. If the reward which he gains for the use of the machine will not pay for the damage, it is mischievous to the public, 548 and ought to be suppressed, for the loss ought not to be borne by the community or the injured person. If the use of the machine is profitable, the owner ought to pay compensation for the damage.I do not put that case as on all fours, but I say it supports the principle on which this Bill is founded. As regards legislative analogies I need only refer to the Workman's Compensation Act where the employer is bound by law to pay compensation to his workman who is injured, although there is no negligence on the part of the employer, and the only exception is where the workman has been guilty of serious and wilful misconduct.
I do not like to delay the House longer than I can possibly help but before I sit down I should like to call your Lordships' attention to what, to my mind, is by no means an unimportant factor in the consideration of this subject, and that is what foreign countries have done. I find on careful examination of the law of European countries, that in Germany, Austria, Holland, Poland, Czecho-Slovakia and, I think, some other countries, motorists by recent legislation have been made to pay compensation to the injured pedestrian whether the motorist has been guilty of negligence or not, subject to an exception where the motorist can prove that the accident was caused solely by the fault of the victim himself or by force majeure. It has been held in cases in these foreign countries that force majeure would include an accident caused by the intervention of a third party, and that would exempt the person sued from liability for the damage. I may say, incidentally, that if it were desired in Committee to introduce an Amendment of that sort I should be willing most favourably to consider it, subject to what your Lordships might say. The only other foreign country to which I wish to draw attention is France. In France a general law was passed making a person liable to damage caused by a chattel under his care capable of causing injury or damage whether he had been guilty of negligence or not, and a case came before the Courts as to whether a motor vehicle is such a chattel. It was held that a motor vehicle is such a chattel, and the consequence is that in France a motorist who injures a pedestrian has to pay compensation unless he can show that the accident was brought 549 about solely by the fault of the victim or by force majeure.
Those are the precedents of foreign countries and I do not quite know why we should be behindhand in humanity in providing compensation in reasonable cases where pedestrians are killed or injured by motor vehicles. There is indeed one further document to which I would like to call your Lordships' attention, and that is a very remarkable report, published in February of this year, which was drawn up by a body of very distinguished experts appointed by the Columbia University Council for Research and Social Services. This Committee met nearly three years ago. They took evidence as to the law all over the United States, as to cases which had been heard, as to hardships and so on, and they came to a conclusion which I ought to quote. They reported in favour of compulsory insurance, which exists in some of the States but not all. They went on to say that "no system based on liability for Fault is adequate to meet existing conditions"—fault, I think, is the word they use in much the same sense as we use the word negligence—and they favoured the plan of compensation with limited liability and without regard to fault.
I do not suggest, for a moment, that the laws of all these foreign countries are identical with the proposals of the Bill. They are not. But I do say that the principle at the bottom of this legislation and of my Bill is identical—namely, that the person injured or killed can get compensation without first having to prove the negligence of the driver of the car. In these circumstances I think a reasonable case for the Bill has been made out and I will now refer very shortly to the provisions of the Bill itself.
Clause 1 provides that:Where bodily injury is caused by or arises out of the use of a motor vehicle on a road, damages shall be recoverable in respect of such injury from the person using the motor vehicle or from any person causing or permitting him to use it unless the injury was caused by the negligence of the person so injured.That is the exception which I think it is proper to make, and possibly a further exception might be made in Committee by introducing, as in foreign countries, 550 the accident which arises under force majeure. Then the clause proceeds:Provided that this section shall not apply to bodily injury suffered by a person who at the time of the occurrence of the event out of which the bodily injury arose was using or being carried in or upon a motor vehicle.The effect of that is that the Bill does not apply to an accident caused by one motorist to another. The reason for leaving out such a case is that it simplifies the Bill and, further, that where one motorist causes injury to another the case is essentially different from that in which a motorist causes injury to a pedestrian. Where one motorist causes injury to another both are insured, and an action for compensation is fought out by the insurance companies, and no difficulties exist of the extent or character which arise in the case of a pedestrian.
Clause 2 of the Bill provides:The liability imposed by this Act shall be a. liability within the meaning of Part II of the Road Traffic Act, 1930.The effect of that clause is that the motorist will have to insure against the liability imposed upon him by this Bill. No doubt some increase of premium may have to be paid, but it ought not to be excessive. I have been told that it is not fair that the careful motorist should have to pay a premium because other motorists are reckless, but that is the existing law. There is no exemption from insurance in the case of the careful motorist. Every motorist, careful or not, has to insure, and properly so, and so it would be under this Bill.
Clause 3 is merely a definition clause, saying thatmotor vehicle' and 'road' in this Act have the same meaning as in the principal Act and the expression 'bodily injury' includes fatal injury.Then there is a saving clause as to other remedies:Except as expressly provided by this Act nothing in this Act contained shall be deemed to affect the rights of action or other remedies which any person would have had if this Act had not been passed.That would preserve, for instance, rights under Lord Campbell's Act, where in certain cases the dependants of a person killed have a right of action against the person through whose misconduct the death arose. I thank the House for listening to me so patiently, but may I 551 respectfully urge the House that the principle of this Bill is sound, and indeed is necessary if we want to remedy some, at any rate, of those gigantic evils under which, pedestrians suffer to-day? If the Government, as I hope may be the case, will not oppose the Second Reading and the House is willing to give the Bill a Second Reading, then we may have valuable discussions in Committee, when Amendments may be moved, and we shall have an opportunity of probing the whole question more fully. Meanwhile I will ask your Lordships to give the Bill a Second Reading.
§ Moved, That this Bill be now read 2a. —(Lord Danesfort.)
§ THE LORD CHANCELLOR (VISCOUNT SANKEY)
My Lords, with your permission, I desire to say a few words upon the legal issues which are involved in this Bill. It is difficult to offer any strong opposition to the Second Reading of the Bill. On the contrary, some of its proposals are attractive. I would go further and say that some of them are not unreasonable, and must command a considerable measure of sympathy. As the law at present stands a pedestrian who has been injured by a motor vehicle on a road has to prove, in order to obtain damages, that the person driving the car was guilty of negligence which caused the accident and the injury.
The purpose of the Bill, as expressed in the first clause, is to shift the onus of proof and in some respects to alter the incidence of liability, by limiting the defence to showing that the accident was caused by the negligence of the pedestrian. It is a usual principle of English law that the plaintiff in such a case must prove that the defendant has been negligent, and probably those of us who have had experience of trying these cases would say that the plaintiff succeeds in the majority of cases. There is, however, more than one principle in the law, and in the application of principles there is always a law of diminishing returns. The further some principles are extended the less useful or expedient they are apt to be found. There is another principle in our law which says that a person who keeps a savage animal, such as a tiger or a lion, does so at his peril, and if he brings such an animal on to the highway and 552 if the animal escapes or gets out of control the owner is liable for the consequences, apart from any negligence on his part.
This is no new principle, but a principle which has been in our law for generations, and it does not seem to be a very alarming or revolutionary change to apply it to a potentially dangerous machine like a motor vehicle. At any rate, it does not seem unjust to say that where a motor car has injured a pedestrian the onus should at least be on the driver to establish some lawful defence, if he is to escape paying damages. What defences should be open to him may be another question, with which I will deal in a minute, but it cannot well be disputed that a motor car which is being driven at a high speed is a potentially dangerous machine. I need hardly remind your Lordships that a railway train has fixed rails, a fenced track and signals, while a motor on the high road has none of these, and motors are often driven at the speed of an express train.
Those of us who have tried such cases know well the rule of thumb, which is more or less accurate, that half the number of miles per hour is the number of yards per second, so that fifty miles per hour is twenty-five yards per second. That is to say, while I count one, two, a motor travelling at fifty miles per hour will have gone fifty yards, and that does not give a pedestrian very much time to cross the road when a motor which is fifty yards off is coming along. The difficult question is not that of putting the onus on the motorist, but of deciding what defences shall be open to him, and it is here that the Bill may be going rather too far. The only defence permissible under it is for the defendant to satisfy the Court that the accident was caused solely by the negligence of the pedestrian.
On the first question—that of onus—the Bill has behind it a great volume of European law and opinion, but it is not so strongly supported upon the second question—namely, as to the defences to be available to the defendant motorist. Permit me quite briefly to draw your Lordships' attention to the various codes. I have had them examined and I can state them in a couple of minutes. In 553 Belgium and in Spain the law is the same as it is with us; that is to say, the plaintiff must prove negligence to entitle him to succeed. At the opposite end of the scale come Poland and Czecho-Slovakia, and there the law is the same as is desired by this Bill which is now before your Lordships. The onus of proof is placed upon the defendant, and his only defence is that it was the plaintiff who caused the accident or his own injury. Between those two limits—the limits of Belgium and Spain, which are the same as ours, and of Poland and Czecho-Slovakia, which is the same as this Bill wants—there are a number of codes—namely, France, Germany, Italy, Holland, Switzerland, Austria, Hungary, Denmark and Sweden. Every one of those countries, so I am instructed, and the matter has been looked into, agrees with this part of the Bill, that the onus should be placed upon the defendant motorist, but I do not think there is a single one of those countries which confines the defence of the motorist to one defence as is apparently desired in this Bill.
For instance, in Italy and Sweden the defendant can avoid liability by proving that it was no fault of his. Let me give an example. Supposing a motor car which is being driven perfectly properly sees approaching it a motor car being negligently driven and swerves in order to avoid it and in the course of swerving knocks down a pedestrian, I can quite understand that pedestrian making the motor which was being negligently driven liable, but it does seem to me a little unjust to say that where a motorist has swerved in order to avoid a worse accident he should be compelled to pay damages. In France, Germany, Switzerland and Holland the defendant may prove that the accident was the plaintiff's fault or was due to force majeure, or was fortuitous and unavoidable. In Austria and Hungary there is another rather useful provision. The defendant may prove force majeure or that the accident was due to the fault of a third person. Upon that I would give your Lordships a recollection of personal experience. Two motor cars came into collision. They were both badly smashed up and the people in each car were badly injured. Now they both obtained damages from a motor car which was not in the collision 554 at all. It was a swerving case and one of the two motorists who came into collision swerved to get out of the way of a third motorist. The result was that both motorists who came into collision recovered damages from a motorist who was not actually in the collision.
In Denmark, the position is that a motorist is entitled to prove inevitable accidents. Denmark, Holland and Hungary have a law which seems to me to be a useful law, and that is that if there is a degree of negligence on the part of both motorists the damages may be apportioned; and in Denmark the apportionment may even go so far as to exclude the defendant's liability. May I say this in regard to that latter point of apportionment? Those who have had to try this class of case are often very much surprised by the small amount of damages given in some cases by the jury. When a motorist sues for damages, he is entitled to recover two sorts of damages—out-of-pocket expenses, his surgeon's bill and his nurse's bill and his loss of wages, and general damages for pain and suffering. It is a very extraordinary thing that often juries will only give the special damages, that is to say, where a man has lost £100 out of pocket they only give £100, and we always rather suppose that the view the jury has taken, although we do not know what takes place in the jurymen's minds, is that they very sensibly say: "Well, this man was a bit to blame himself. We do not like to give him nothing. We will give him his out-of-pocket expenses." So, in effect, the result is the same as it is in Denmark.
There is another class of case I should like to mention. Supposing, as often happens, a motor car when being driven splashes the mud into a pedestrian's eye and injures it. Is the motorist to be liable for that? That is a matter which wants careful thinking about. I doubt if it could be said that that is a case where the motorist should be liable in damages. One other point. This Bill if it passes will make a considerable difference in insurance policies. That is a subject on which I am not able to give your Lordships much assistance, but the information supplied to me is this. Informal inquiries have been made as to the possible effect which the passing of this Bill would have upon the rates 555 of premium charged for policies complying with Part II of the Road Traffic Act, but it seems doubtful whether the companies will be able to give any very definite figure. That a substantial increase in these rates would be necessary can hardly be doubted. In the first place an entirely new class of accident would rank for compensation—namely, where there has been no negligence on the part of the motorist, or no proved negligence. Secondly, the number of cases in which excessive or even unfounded claims would be pressed by unscupulous litigants would undoubtedly be increased and the evil is one which already is a matter of serious concern to insurance companies.
Therefore, to conclude, there is ample authority and ample opinion for the first proposal of this Bill altering the onus, but with regard to the other part, restricting the number of defences open to motorists, I think that wants very careful consideration. It is not for me personally to express an opinion, but, as I say, it is difficult to offer serious opposition to the Second Reading and there certainly are questions here which are worthy of very close attention and examination.
§ EARL BUXTON
My Lords, I had intended to go somewhat fully into the questions affected by this Bill and the arguments in favour of it, but the speech of the Lord Chancellor seemed so conclusive from a legal point of view that some of my remarks will, I think, be unnecessary. But your Lordships should remember that in the 24 hours of the day 18 persons will be killed and 533 persons will be injured in motor accidents. The Minister of Transport the other day said he was giving his attention to the matter and hoped to do something to meet the difficulty. Departments usually run at a low speed and my noble friend proposes to help the action of the Government by a measure dealing not so much with the danger as with the compensation which ought to follow any accident. I do not think anyone would desire to draw a Bill of indictment against motorists as a whole. On the contrary, I believe the vast majority of motorists feel responsible and are considerate of others.
Lord Buckmaster mentioned the other day that he had been motoring for 556 twenty years and had not even killed a hen. The vast number of motorists are in the same happy category. Indeed I think they require as much protection as do the pedestrians themselves. I do not know whether noble Lords will remember this little jingle:
That, I think, is very much the position of most motorists. It is the reckless, the careless, the ignorant, those who have not got road sense who look upon the pedestrian as a nuisance with no rights upon the highway. My noble friend referred to public opinion and that has undoubtedly, even in the last few weeks, very largely expanded in emphasis and power, and I think that the motoring public and pedestrians are grateful to The Times newspaper for having given such prominence to the public protests that are being made. That will have some effect. I hope, for instance, it may have an effect on some of our magistrates who seem to me to take much too lenient a view of motor accidents, and who constantly fine when they ought to endorse, and endorse when they ought to take away the licence. Their usual reason is that when you take away a licence you destroy a man's livelihood. But surely a man who has already in many cases destroyed the livelihood of others requires no consideration at the hands of the magistrates.
- Here lies the body of Matthew Bent,
- Who died in a motor accident.
- He was right, modestly motoring along;
- He is just as dead as though he were wrong.
The object of the Bill has been very clearly stated by my noble friend and by the Lord Chancellor. The desire is that the onus of proof should be changed from the one side to the other. I listened with great interest to the speech of the Lord Chancellor. One had been afraid that this Bill might be met by the legal objection that you cannot, and ought not, to apply special laws to special cases, but I think he removed that difficulty which might have stood in the way. After all, the position is a very grave one. The present position in regard to the motorist has created a totally new position, which ought to be dealt with on its merits and not simply by applying precedents to it. That was done when the railways were introduced. They 557 were hedged about in every possible way, and new laws were laid down in order to meet the danger. In the case of motorists what has happened so far is that they have had encouragement in every way. They have been licensed, and been given special advantages; their existence has been recognised and they have been allowed a great deal of liberty. It is time, therefore, that they should also have some curtailment of their liberty in the way that my noble friend proposes.
I had intended to quote precedents from abroad, but the Lord Chancellor has already done so. There is, however, another precedent nearer home which I think meets the case, even better than the one mentioned by my noble friend. That is the case of an accident in a mine. Where there is an accident in a mine it does not matter whether the miner is contributory to it or not. He receives compensation apart from any question of whether he was himself to blame. My noble friend does not go so far as that in this Bill, because if it can be shown that the pedestrian is to blame the motorist will be able to plead that against his liability. My noble friend pointed out that out of the number of persons killed and injured half of them, or nearly half, are pedestrians. Somebody in dealing with this matter the other day said that motorists in a year killed and injured more persons than were killed or wounded in the battle of Waterloo. But that is not a correct estimate of the position. At the battle of Waterloo, roughly speaking, there were 140,000 combatants, French and English. It would be truer to say that the real position, under present conditions, is that the whole of the armies on both sides at Waterloo might have been killed and wounded, and yet they would only amount to two-thirds of the number of injuries and deaths caused by motorists in one year. That proves what a terrible position it is.
It is still more terrible for the unfortunate pedestrian who does not have the advantage of motoring, a not unworthy part of citizenship. I am not saying for a moment that many pedestrians are not stupid or inconsiderate or vacillating, very often take undue risks, and are, in many ways, a cause of great annoyance to motorists. But, after all, to be a cause of annoyance is not a criminal offence, and it hardly justifies a sentence of death or a sentence of disablement. I think it is 558 forgotten by those who, as I have heard, desire to oppose this Bill that in every case it is the motorist who is the aggressor. I have never heard of any pedestrian attacking a motor. In every case it is the motorist who is the aggressor against the pedestrian. The Lord Chancellor spoke just now of the difficulty of distinguishing sometimes between the contingent liability, but I happened to read only a day Or two ago in one paper three cases of pedestrians who had been killed on the footpath, not in attempting to get across the highway, through the negligence and incompetence of motorists.
I think it might interest your Lordships if I quoted one or two figures in order to show the liability which ought to be put on the motorist as against the pedestrian. The Minister of Transport some while ago issued a tabulated statement as a result of investigations in regard to road accidents occurring outside the London area. In the four years covered by this rather limited inquiry there were 1,618 accidents, of which drivers were responsible for 930 —more than 50 per cent.—mechanical defects of machines were liable for 293–16 per cent.—and road conditions were responsible for 21 per cent. All these accidents, whether the fault of the driver or whether the fault of the machine or of some condition in the road, must be added together to show the danger to the non-motorist, because these accidents would not occur if some of these things did not exist. The figures amount to this, that while 86 per cent. of the whole of the accidents are due either to the fault of the driver or to road conditions or mechanical defects of the vehicle, only 5 per cent. of the whole are due to the fault of the pedestrian.
My noble friend has pointed out that half of these accidents are to pedestrians, yet only 5 per cent. are due to the fault of the pedestrian. It is immaterial to the unfortunate victim whether the accident is due to the fault of the driver or to a defect of the machine or to road conditions; the fact remains that he suffers injury from the motor car. How is he to prove negligence? The Lord Chancellor said when there is an accident the pedestrian has at present to show negligence on the part of the driver in order to obtain compensation. Surely anyone who is run over by a motor car is not in a position at that moment to say what actually happened. He is probably knocked un- 559 conscious; at all events he is knocked down, and as far as he is concerned he is quite unable to say what contributory negligence there was on the part of the driver. The worst of it is compulsory insurance has, I think, very much reduced the feeling of responsibility on the part of motorists themselves. As my noble friend pointed out the scale is weighted at present very greatly against the pedestrian. In the case of motorists themselves both parties to an accident are insured, and the insurance companies can fight it out. When it is a case of a motorist against a pedestrian the motorist has the powerful insurance company behind him, whereas the unfortunate pedestrian has no one but himself and it is very difficult for him to bring his case into court.
The Lord Chancellor pointed out with great force that it is almost impossible for an ordinary pedestrian to undertake an action against the motorist. I hope that your Lordships will accept this Bill. It seems to me that the present scale is weighted against the pedestrian and this Bill does, to a certain extent, redress the balance. To me, as a layman, at all events it seems only justice and common sense that where a pedestrian is killed or injured without fault of his own, without contributory negligence, he should receive compensation. This Bill, of course, is not a prevention Bill, but it is a Bill which I think is just, and I hope your Lordships will accept it.
§ THE EARL OF HALSBURY
My Lords, I rise to say a few words against this Bill and in opposition to its Second Reading. I have endeavoured to keep an open mind on the question although I confess that at first sight it is shocking to a lawyer to be asked to place upon any person the onus of proving innocence. I had hoped that some reason might be given for it, but the noble Lord who introduced the Bill had not quite the courage to say really what he meant by it, although he did quote a case which showed what must have been in his mind. The noble and learned Viscount on the Woolsack was more courageous. He put it before your Lordships in this way: Let us declare that a motor car on the highway is a public or a private nuisance. That was the decision in Powell versus Fall, to which the noble Lord referred, and the noble and learned Viscount on 560 the Woolsack really put it on the ground that it might be treated as a wild beast escaped on the highway. If we are going to do that let us be certain that that is what we mean. Of course, if it is a nuisance and causes damage the question of negligence does not come in, but short of that it does shock one to hear the suggestion that the onus of proof of negligence should be put upon the unfortunate motorist. We know that this is a very serious question, we know that it is one that must bear upon everyone's sentiments, and we feel that something ought to be done. But because we feel that we ought not to be driven to do something which is manifestly unfair.
Certain figures have been quoted and I am going to quote other figures but only one set. I wish to refer to figures given by the Commissioner of Metropolitan Police for the year 1930. In that year in the Metropolitan area there were 885 fatal accidents. Those were analysed for police purposes and 76 per cent. of them were due to pedestrians. I suppose anybody who has a motor car must know that there are a very great number of pedestrians on the road who do not pay sufficient care to the present conditions upon the road. It does seem to me that we ought to be a little careful before we run away with the idea that an Act must be passed to give every right to the pedestrian whether right or wrong. This Bill is in favour of pedestrians and in favour of no one else, and if a motorist could show that the accident was due to the act of God or the King's enemies nevertheless he would have to pay damages. It does seem to me that that is a matter which might have been thought of before this Bill was put before your Lordships. I think the noble Lord who introduced the Bill might have had that matter in mind. He told us that it was very difficult for the pedestrian to prove negligence, but it seems to me that the defence of contributory negligence has been left in Clause 1 of the Bill.
There is another question on which I should like to say a word or two. The noble and learned Viscount on the Woolsack said something about insurance companies and the effect of this Bill. When the Road Traffic Act was under 561 consideration I met a lot of insurance people and was present at a great number of informal discussions. It was by no means easy to get them to come in under the Road Traffic Act, but they did come in and they came in loyally. If we now pass this Bill, which undoubtedly will enormously increase their liabilities, it seems to me that we shall be doing something without knowing what we are being led into, and if we try to do it without their assistance then we may have a very serious position. For instance, in Austria at the present time because an enactment of this kind has been passed practically the whole of the motor industry in Austria has been stopped. I should have thought that that question ought to be considered before putting forward the proposals in this Bill without, as far as I can gather, making any kind of inquiry among the insurance companies.
I shall not say much about the question of foreign countries, and I will only deal with one foreign country in order to show your Lordships that we cannot get very much help from that direction. It is perfectly true that in France the onus is thrown on the motorist, but in France the onus is always on the person who is alleged to have done a wrong. The whole law as laid down in the French Code puts the onus on a person who has done an injury to show that it was not his fault. There is another difficulty in dealing with French law. There are two codes in French law, the Code Peénal and the Code Civil. In the case of a motor accident proceedings are usually taken under the Code Peénal, which is more or less equivalent to a case brought before a magistrate here for an offence under the Motor Car Acts. Assuming that the Court finds a driver guilty the Court can then and there go on to award compensation under the Code Civil. I only put that before your Lordships, without going more deeply into the question, in order to show that we are not going to get much advantage from the French law. My submission is that we ought to consider this matter from our own point of view. There is a great danger in being carried by a very proper sentiment into a wrong method of trying to deal with what is undoubtedly a very serious matter.
There are other methods that have been tried in other countries. One method is that of saying that no one shall drive a 562 motor car unless he has undergone very careful examination. That I know is a thing which the noble Earl whom I hope we shall hear later favours, but I am also aware that it was considered by the Royal Commission which did not approve it. As one who has driven for a very long time in this country and fins also driven a very great deal in France, I do know that as a rule you find drivers in France more careful than they are in England. I do not say for a moment that they are better drivers. We have as good drivers in this country as in any country, but taking the average driver you meet on the road I think that French drivers are more careful. If I may put it in this way, there are fewer careless drivers to be met on the roads there. That is a matter that might be considered. If it were adopted it might help considerably the unfortunate state of affairs that exists to-day. That is only one possibility. I do not put it forward as a definite solution, but something that might be tried. There are other ways. In France there are discouragements to anybody going through a village which in fact prevent people from driving fast, and something of the same sort might be worth consideration. We ought not, without consideration and merely because we feel our sentiments are hurt by the horrible figures, to give a Second Reading to a Bill which, on the face of it, causes great hardships to one who may be an innocent person without considering and trying other methods.
§ LORD BUCKMASTER
My Lords, a short time back I made a statement in your Lordships' House which I desire to repeat. I said that as the law stood today a man who is driving a motor vehicle might by his negligent act kill or maim a person on the King's highway and be subject to no liability, civil or criminal. I do not believe that such a state of things ought to continue. This Bill is an attempt to do something, not, as I understand it, to throw the burden upon the motorist's pocket, but something that will at least ensure that when a foot passenger is injured on the highway he will be secure of compensation unless his injury is solely due to his own fault. It appears to me to be an extremely reasonable Bill and I cannot understand why the noble Earl who has just sat down should have 563 been so shocked at the provisions which it contains. The opponents of measures such as this seem to rely on one of two alternative defences. They say, first, that you are changing the law. Well, of course, if the law is not adequate it has to be changed. It is no use complaining that you are changing the law if the law as it is does not remedy existing wrongs. Next they say: "Oh, yes, assuming there is a grievance do try something else." With that, my Lords, we are thoroughly familiar. I remember the noble Viscount, Lord Cecil, introducing a Bill in 1929 in which he did propose one of the remedies which have been referred to. Everybody said: "Did you ever hear of such a ridiculous remedy?" and his Bill was laughed out of the House. Now, as an answer to this Bill, we are asked to introduce once more a discussion which was vain and futile then.
It seems to me that this Bill deals with a very real existing mischief. It happens that owing to action I took a short time ago in this House I have been the recipient of an enormous number of letters from those who have suffered accidents at the hands of motor cars. Some are terrible to relate, but the ones which moved me most have been tales of poor men who say they can get no remedy because they find themselves immediately up against a wealthy insurance company and they have no money to go to lawyers to fight them. Anyone who knows anything of the history of negligence actions in the Courts knows that, is true and the man, unless he obtains leave to sue in formâ pauperis, cannot get anybody except what are known as speculative lawyers, who are by no means the most desirable class in the community to encourage. Apart from that, this man has a formidable wealthy opponent and cannot get what a man who is in a position to fight can get. Even if he could he has, as has been said, to be put to great expense in getting witnesses. Further, he may be in the most difficult position that, owing to the blow that may have nearly cost him his life, he is not able to give clear and definite evidence as to what has occurred. I heard the noble Earl, I have no doubt inadvertently, refer to the unfortunate motorist, but he suffers no such shock when he is running down a pedestrian.
§ LORD BUCKMASTER
That is another story. That is not what we are dealing with. We are dealing with the case of a motor car running a man down. I say that in that case the man run down is practically incapacitated from giving a clear account and that the motorist is not. If there is some rare occasion where that is not so it is a matter too small for the law to consider. I believe the remedy should be much more wide than the Bill proposes. I believe the right course is to provide that there should be an insurance against every accident caused to a pedestrian by a person driving a motor vehicle and that insurance should cover everything. The present insurance seems to me to be the most mischievous you could create because it insures a man against the consequences of his wrong-doing. So far from discouraging him from doing wrong it encourages him. Why should these reckless people pause? If they injure anyone they do not suffer in person or in pocket and it is about time the law was changed.
On a former occasion the noble Earl, Lord Howe, made some most valuable suggestions as to what might be done, but I do not think they are relevant on this Bill which merely affects the question of civil liability. Those who drive motor cars have received a very great concession at the hands of the public. They have obtained dominion of the road, and foot passengers, who were formerly equally entitled to their use, are now nothing but people permitted to use the loads on tolerance, and they have positively been permitted by Statute to drive these ears at any pace they please on the country roads subject to ineffectual restrictions about reckless and dangerous driving. When they have that right it is only fair that they should have some further obligation cast on them. Of what the result of the exercise of the right has been the figures are only too evident. It is no use saying those figures refer to sentiment. They refer to innocent people 565 killed and wounded on the King's highway in numbers that stagger us to believe. I say the Bill ought to pass, and that steps ought to be taken swiftly and drastically to secure that once more there shall be security for the people to use the roads of this country which are their rightful heritage.
§ LORD MOUNT TEMPLE
My Lords, as one who had control as far as the State has control of the roads for three or four years, may I detain the House for not more than five minutes? What strikes me in these debates on this subject is the prejudice against all motorists shown by certain members of your Lordships' House. The Bills or Motions are very largely decided by that prejudice, and the actual provisions of the measure under discussion are not really gone into. The noble Lord who bas just spoken, as a matter of fact, has assumed that all motorists are careless, that the fatalities on the road are all the fault of the motorists, and that therefore something must be done, whether it alters the law rightly or wrongly or whether or not it makes for injustice to those who use motor vehicles or motor cycles on the roads.
If your Lordships will bear with me for only five minutes I will endeavour to deal with the Bill and not with the surrounding prejudices, which unfortunately hover round a very controversial subject. As a man in the street, and not a lawyer, I say that at present if any person suffers injury on the roads he cannot obtain damages unless he proves negligence on the part of the driver of the motor car or motor cycle or pedal cycle or horse-drawn vehicle. Therefore the law says that a man is innocent unless he be proved guilty. What does this Bill do? This Bill seeks to enact that the law shall still assume that the driver of a pedal cycle or horse-drawn vehicle is not negligent until he is proved to be negligent, but that in the case of the driver of a motor car or motor cycle, if he is involved in an accident, it is not necessary to prove negligence: he is assumed to be guilty. Is it right to divide the users of the road, because all the King's subjects have equal rights to use the roads, subject to legislation—is it right and fair to divide the users of the road into sheep and goats? Is it right that this handicap, this considerable dis- 566 ability, shall be put upon the motorist and not upon the driver of a horse-drawn vehicle or the rider of a pedal cycle, or upon a pedestrian?
Take an example, as I see it. Perhaps noble Lords who are lawyers can show that I am not taking a proper case, or a legal case. If a farmer's gig hurts someone in a motor car the person hurt in a motor car under the Bill cannot claim compensation unless he can prove negligence on the part of the driver of the farmer's gig, but if the driver of the motor car hurts someone in the gig that person who is hurt can bring a claim for compensation against the driver of the motor car without proving negligence on the part of the driver of the motor car. That is contrary to the principle of Common Law, contrary to the principle laid down in our Courts, and against the principle of elementary justice. Let me take a case which would appeal to Lord Danesfort. He has always taken a great interest in, and rightly stood up for, the minority in the Irish Free State, in which I thoroughly sympathise with him. But supposing it was enacted in the Free State that if a Protestant drove a motor car he should be assumed to be negligent, whereas if a Catholic drove a motor car he would have to be proved to be negligent before a claim against him could succeed. My noble friend would say that it was grossly unjust, and therefore on what grounds does he divide the users of the road into drivers of motor vehicles and drivers of horse-drawn vehicles and pedestrians?
§ LORD MOUNT TEMPLE
It is not for me to show why not. If the noble and learned Lord is going to make a change in the law it is for him to prove why it should be made, when the law has always been as I have stated it. Then I may ask whether these non-motorist users of the road are such innocent persons as is sought to be made out. In 1930 there were 26,000 accidents attributed to pedal cycles and 4,000 attributed to horses and horse-drawn vehicles. So that in that year there were 30,000 accidents caused by people who are the under-dogs, according to this Bill, and it seems to me that a case for this differentiation has not been made out. Then may I ask your Lordships to 567 remember that this Bill deals only with civil compensation and damages, and not with criminal liability at all? A great portion of the speeches which we have heard up till now has really been dealing with criminal liability for offences which are dealt with under the Road Traffic Act, and that is quite irrelevant to the Bill under discussion. All we are discussing now is whether it should be made easier for certain people who use the road to get damages against another class who use the road, and, as Lord Halsbury mentioned, this, will undoubtedly have to be very seriously considered by the insurance companies. I submit that this Bill will not—I wish it would—have any effect upon accidents on the road, because every motorist has to be insured, and therefore the damages will have to be paid, not by what my noble friend describes as the offending party, but by the insurance companies. Therefore, although there will be a small increase in the premiums owing to this Bill, if it becomes law, it will not be sufficient to make the motorist, if he is negligent, any less negligent.
I will not detain your Lordships much longer, but I would just like to deal with one more matter, and it is this. Are the supporters of the Bill right in assuming that the number of accidents in which motor vehicles and motor cycles are involved are increasingly the fault of motor drivers? because that would appear to be one of the main arguments put forward by the noble Lord in support of this Bill. If that was so I should be inclined to give more attention to his proposition, but, as a matter of fact, it is not so. In the ten years, 1921 to 1931, the number of motor vehicles licensed increased by 151 per cent. and the number of fatal accidents increased by only 135 per cent. So it is proved by statistics that in Great Britain the number of fatal accidents did not increase in the same way as the number of motor vehicles licensed.
§ LORD MOUNT TEMPLE
Certainly they have increased absolutely but not relatively. Finally—the noble Earl, Lord Halsbury, did mention this figure, but I must use it again because it is very significant—there is the Report of the Com- 568 missioner of Police for the Metropolitan police area for 1930. It is an official Report, and therefore we may take it that it is as reasonably accurate as anything you could get. In 1930 the number of pedestrians killed or injured in the Metropolitan police area was 885, but who were the people at fault? According to the Commissioner of Police, out of those 885 accidents no fewer than 678 were due to the faults of pedestrians. Seventy per cent. of the accidents in 1930 to pedestrians in the Metropolitan police area were therefore due to their own fault. I do not know whether Lord Halsbury is going to a Division, but it does seem to me so unjust to divide the users of the road into two categories, one of which you favour and one you do not favour, and it seems so unfair and un-English to assume that a man is guilty unless he proves that he is not, that if the noble Earl does go to a Division I shall support him.
§ VISCOUNT CECIL OF CHELWOOD
My Lords, I am sorry I am unable to agree with what has fallen from my noble friend, and I cannot help thinking that his long association with the Ministry of Transport has rather deformed his otherwise admirable judgment. This is a small Bill and does not deal with the prevention of accidents at all. It deals merely with the very large number of cases of people who are killed or injured in the streets or on the roads of this country, who are unable even to begin to recover judgment because they are unable to prove the negligence of the motorist. My noble friend talked about elementary justice, but, after all, what can be more elementarily just than to say that people who are injured by hundreds and thousands on the roads ought to have some means of recovering compensation unless it can be shown that they are not the people who are responsible for the injury?
§ LORD MOUNT TEMPLE
Then would my noble friend amend the Bill so as to include pedal cyclists and drivers of horse-drawn vehicles?
§ VISCOUNT CECIL OF CHELWOOD
I will not forget that point. But the real short answer to that I will give immediately. The thousands of accidents are not due to those pedal cyclists and horse-drawn vehicles. There are a few of such 569 accidents, but everyone agrees that this evil, which has excited the public mind all over the country and has caused such very great indignation, is entirely the consequence of the presence of motor cars on the roads. I am not for a moment saying that all drivers of them are guilty, but, it is the fact that there is this vast number of accidents caused by motor cars, which causes the great practical evil, and when you can show an equally great practical evil arising from pedal cyclists, I quite agree we may have to extend the provisions of this and other Bills to pedal cyclists as well as to motor cars.
This is entirely a practical matter. Just consider what happens in the case of an accident. A child is knocked over in the road. It may be that nobody sees the accident at all. It may have been entirely due to the negligence of the motorist, but the child cannot give evidence. How can it? It is knocked over, and probably knocked senseless, if not killed. It has no opportunity of giving evidence. The consequence is that there is no remedy at al]. That is not an extravagant case. That is what actually happens. I have here an extract from the report of the Poplar Hospital and they say this—a very striking phrase:Meanwhile, the first year's working of die Act indicates that motor accidents to children are always the fault of the child, for in no single case has the Hospital's account for the child been paid.What does that mean? Under the Road Traffic Act where an accident occurs for which, under the present law, the motorist is liable, he has to pay, in addition to anything else, the cost of the hospital charges, and he has to insure in order to recover that cost. In no case has any payment been made by the insurance company in respect of children who have been treated at Poplar Hospital. Why? Because the children are unable to prove the negligence of the motor driver. But it is fantastic to suppose that in every case the child has been the sole person to blame for that accident. The instances might be multiplied enormously.
The evil is a, very great one, and is felt very deeply, as the correspondence of the noble and learned Lord, Lord Buckmaster, has shown. This is a very small measure of justice, which I hope your Lordships will certainly approve in 570 order to put a stop to this particular evil. I do not understand the attitude of mind which says that this is to create a special case for motorists and does not apply to other users of the highway. As soon as the same conditions can be shown to exist with regard to other users of the highway, whether pedal cyclists or the drivers of farmers' gigs, I quite agree you must extend this legislation. For the moment we are dealing with the particular evil of the motorists. My noble friend Lord Halsbury said that he was very much afraid of the effect of this upon the insurance business and that in some country—Austria I think it was—the effect of extending the liability of motorists to all cases of this kind had been to create a very great difficulty with the insurances, and had hampered the motor industry. I am quite ready to hamper the motor industry if it is necessary to do that in order to protect the lives of children and other people in this country and to give them reasonable compensation for the injury that is done to them. I do not believe that that is at all likely to be the case here. But, if it be so, consider what it means. It means that the claims are so great which this Bill will open up, that so many people are now injured and killed and have no remedy, that the moment you give them this remedy you will place a tremendous burden on the motorists. It shows the tremendous nature of the evil which exists. It seems a very strong argument for the Bill, not against it.
I certainly hope that this measure will be passed. Some references have been made to other preventive measures which might be taken. I hope very much that the Legislature will take other and very extensive preventive measures to deal with this evil. I am interested to observe, as Lord Buckmaster has pointed out, that some of the provisions which I suggested two years ago have now received the support of advocates of the motor trade and the motor interests, who at that time regarded them as ridiculous. I have no doubt you will have to do a good deal more. There are a great many evils. I could mention half a dozen on the spot which ought to be dealt with. But this is a quite separate and distinct matter. It is not part of the preventive legislation; it is merely to give compensation to those who at present are injured in very large numbers through the fault of 571 the motorists, and yet are unable to obtain compensation. It is to check that evil, and that evil only, that this Bill is brought forward.
§ LORD LAMINGTON
My Lords, my noble friend Lord Mount Temple made great play with the point that in this Bill you are dividing the road users into two classes, and legislating against the motorists and not against pedal cyclists and drivers of horse vehicles. He said that a quarter of the total of the road accidents could be attributed to these last two categories—the accidents against pedestrians or in general?
§ LORD LAMINGTON
It is to the pedestrian we are trying to give some satisfaction under this Bill. The noble Earl, Lord Halsbury, said that this Bill is one entirely in favour of the pedestrian. I hope it is. Everything has been up till now to the great detriment of pedestrians. They cannot enjoy the use of the road; their nerves are acutely expectant of some fast motor coming along; and it is only right if they suffer injuries that they should get some compensation. This seems to me a most modest proposal, and one that ought to have been passed long ago. I do not think either of the two speeches which have been directed against the measure was really convincing that there is anything unjust about it. The burden imposed on motorists is only a slight increase in what they have to pay for their insurance as a protection against possible injury done to others. It seems to me this is a thing that your Lordships ought to pass with acclamation. The noble Lord, Lord Buckmaster, in his Bill, dealt with another point, that there should be more severe penalties imposed upon those guilty of careless driving. I dare say that is right, but in the meantime this Bill gives some security to the person on foot who is injured getting some compensation. At present motorists can go to the Court with powerful motoring associations to defend the cases for them without, I understand, any expense to them, whereas the pedestrian has to get legal advice on his own account in order to submit his case. I think it is only fair that he should get some redress in this very proper and moderate fashion.
§ EARL HOWE
My Lords, I do not intend to intervene at any great length. If your Lordships could bear with a few remarks from the point of view of the user of a motor car I should be indeed grateful. We have all been appalled, in fact the whole country, as the noble Lord, Lord Danesfort said, has been appalled by, and is now well aware of, the terrible casualty roll occurring upon the roads. I think, if I may say so, that that was probably responsible for the Bill introduced by the noble and learned Lord, Lord Buckmaster, into your Lordships' House recently, and is probably also at the bottom of this Bill. I myself have always been very much surprised that it is really only comparatively recently that this appalling casualty roll seems to have awakened real interest in the country. When the Road Traffic Act was going through your Lordships' House I ventured to refer to figures of accidents taking place on the highway, and I think a number of your Lordships were half incredulous when I mentioned the appalling total of the figures.
But I think we ought to be careful not to be led away by the idea that those figures all represent motor accidents, or that all the people killed or injured have been killed or injured by a motor vehicle. A very large percentage of the number of accidents on the highway, as can be ascertained by anybody who looks into the figures, are accidents in which motorists have no concern whatever. At the same time I do not think anybody will challenge the statement that the casualty roll is high, is too high, far too high; and I am perfectly certain that every member of your Lordships' House is only too anxious to see something really effective done. I myself want to see something effective done to try and improve conditions on the road and save life. I should like to submit to your Lordships that the way to save life on the highway is certainly not to pass this Bill. The noble Lord, Lord Danesfort, in moving the Second Reading, made it quite clear that the purpose of his Bill was to place the onus upon the motorist while exempting other classes of road users from the same supervision.
§ EARL HOWE
I stand corrected if it is not so. I do not want in any way to 573 give an unfair description of the Bill. I submit that the way to make the highway safe, to bring home to every highway user the responsibility which he has when he uses the road, it does not matter if he is on foot, in a vehicle or on a cycle, whatever he is doing, is not by a Bill of this kind. Your Lordships will remember that the Road Traffic Act provided for a Highway Code. The Ministry of Transport produced an admirable document called the Code of the Highway. I wonder whether, if your Lordships were to go out into any of the back streets round the Palace of Westminster and to select a certain number of pedestrians using the highway, you would come across a single one who had ever seen or heard of the Code of the Highway. The Code of the Highway laid down a certain code of conduct for all road users, and I submit that the Ministry of Transport were quite right in that, because they were trying to bring home to all road users the responsibility which they have to one another.
This Bill seems to me to apply merely to one section of road users. I should like to see some sort of getting together on this between the noble Lord, Lord Danesfort, the noble and learned Lord, Lord Buckmaster, and perhaps the Government. I thought from what was said when Lord Buckmaster's Bill was under consideration in your Lordships' House that something of that sort was contemplated. I thought the Ministry of Transport were going into the whole question to see whether some further amendment of our law, whether criminal or civil, could be made, but so far the matter does not seem to have got very much further. I am very much afraid of the effect of the passing of this Bill. I think the effect would be a psychological one. It would probably work in this way. The pedestrian would sally forth on to the highway and say: "Well it doesn't matter much what I do, because whatever happens I shall have no responsibility in law."
§ EARL HOWE
I do not say he would like being killed; at the same time it must be obvious that if a man uses the highway—and we all use it on foot very often—he should have some responsibility 574 for himself and for his dependants. He must not be encouraged to say: "It does not much matter what I do. I can stroll across the street as I like." Anybody who has practical experience of modern traffic conditions knows perfectly well that much recklessness is displayed by a very large percentage of pedestrians. In fact the amount of recklessness is really appalling. One has only to go through the streets to see that. Crossing places are provided, refuges are provided, and they are not used. There is a subway outside these buildings and it is exceptional to see anyone use it. They all go across the highway. Continually you see pedestrians emerge from behind stationary vehicles, sometimes you see them walking across the road reading newspapers, and taking no account of themselves or their dependants. The noble Lord, Lord Buckmaster, permitted himself to say that the motorist did not suffer, or words that amounted to that.
§ LORD BUCKMASTER
What I said—I trust I was right—was that when a collision took place the pedestrian who was struck was knocked unconscious and the person in the car was not.
§ EARL HOWE
I am sorry if I misrepresented the noble and learned Lord, but there is no doubt whatever in my mind that if a motorist—an ordinary human being like every one of us, because we are all motorists nowadays—is involved in an accident which results in personal injury to another, the agony of mind he goes through transcends everything that has been said on the subject to-day. Something has been said with regard to increased insurance premiums. That is a matter for serious consideration. We must not, I think, place further restrictions on, or still further hamper, any industry in this country to-day, and before we take any such steps as would be involved in the passing of this Bill we ought to look at all its likely ramifications. We ought not to take any steps which would increase insurance premiums unless it is really necessary. Whether if this Bill goes to Committee we shall get information on that point I do not know, but it is a point which should receive attention.
Insurance companies have an arrangement between themselves—the so-called "knock for knock" agreement. That 575 means that if an insurance company had to deal with a pedestrian who happened to be insured—and I believe a certain percentage of pedestrians are insured now —because he had been concerned in an accident with a motorist, the two insurance companies would get together. It is quite an open question how much the pedestrian would get out of it. Certainly in accidents involving two motorists the "knock for knock" arrangement makes it almost impossible for responsibility to be brought home to the individual really responsible. I hope that whatever is done in this matter will not be done in a hurry. I think that some case has been made out for the Bill which the noble and learned Lord, Lord Buckmaster, brought before your Lordships, and I think that some case has been made out by the noble Lord, Lord Danesfort, for his Bill, but I do hope that we shall not legislate in haste and that we shall examine the matter from all angles and look at alternative proposals, such as examination of drivers, the arrest of cars, better provision of crossing places and subways, the better siting of refuges and so on. Those are matters perhaps hardly germane to the present discussion, but as I say I hope we shall not legislate in a hurry because we might then be led into passing a Bill which might defeat its own object.
§ VISCOUNT ULLSWATER
My Lords, before this Bill passes to the Committee stage there is one small point to which I should like to call the attention of the noble Lord who introduced it. I imagine that the Bill has been considerably amended since it was first conceived. When I look at the marginal note to Clause 1 I find it reads "Damages recoverable in cases of bodily injury or damage to property," but there is not a word about damage to property in the Bill.
§ LORD DANESFORT
Perhaps the noble Viscount will allow me to explain. The first draft of the Bill did contain something about compensation for damage to property. That was struck out of the Bill, but by an oversight the marginal note was not altered. That is how it is that those words "or damage to property" appear in the marginal note. The noble Viscount is perfectly right. They ought not to be there.
§ VISCOUNT ULLSWATER
I thought there had been some slipshod drafting about it. I should like to see "damage to property" included. Why not? If a motorist kills a man's dog or his sheep or his horse, or if he knocks down his area railings or drives into a shop front, as often happens—and very often not through negligence but by reason of some other cause, skidding on the road, or the steering gear not acting, or something of that sort—why should not the owner of that dog, sheep, horse, shop front or area railing receive some compensation? I hope that when the time comes we shall alter this Bill to include these things.
LORD DE CLIFFORD
My Lords, may I as one who is a motorist as well as a walker make one or two observations about this Bill When I first read this Bill I had some measure of sympathy with it, but I cannot see my way to support it to-night. Everyone regrets the toll of accidents on the roads to-day but I cannot see that there is any difference between the position now and the position when we passed the Road Traffic Bill. I cannot see what circumstance has arisen lately to justify the shifting of this burden on to the motorist. The Home Secretary in another place recently gave figures as to the number of accidents last year. I do not think they are available in printed form but they show that while there has been an increase in non-fatal accidents there has been a decrease in fatal accidents. Since the passing of the Road Traffic Act all accidents have to be reported, and I think the fact that fatal accidents show a decrease is quite gratifying.
I do not think that the Bill before us to-night can really be said to make any improvement in motor legislation. Nor can I see what act of rectitude the pedestrian has committed to make him the recipient of the honour done him by the noble Lord in introducing this Bill. It is a noteworthy fact that 76 per cent. of the accidents in the Metropolitan police area in 1930 were the direct result of the negligence of pedestrians. That relates to fatal accidents only but I do not see that that gives the pedestrian any right to claim privileges which are not given to other users of the road. Motorists have been fair game to be shot at by every- 577 body. It is not true that the motorist has no responsibility. He is covered with responsibility. He is taxed on the right hand and taxed on the left hand. He contributes millions to the Exchequer. The margin between the income and expenditure of the ordinary man is very small and as the result of this Bill is bound to be the increase of insurance premiums it will have the effect of driving off the road many poor men who are now running cars. I maintain that in many cases the person who is thus driven off the road will not be the person you want to see off the road and for that reason I say it is a bad Bill.
I can conceive a, much better Bill which would provide for examination of drivers before they are licensed. It is a horrifying thought that in all countries where there are tests for dnivers—this is about the only country left without tests for drivers—30 per cent. of those who apply for licences are rejected. It is the 30 per cent. that we want off the road and the other 70 per cent. should not be penalised because of this 30 per cent. Many of these people are dependent upon a car for a few hours healthy recreation in the country with their families. I am not a lawyer and I cannot go into legal points but after many years driving both in America and in Europe, in nearly all the countries that have been mentioned to-day, I know that in every country except this some measure of traffic responsibility rests on the pedestrian. To-day we have gone beyond the position when the man who walks along a road can consider himself a privileged person. Every person on the road to-day must consider himself a unit of traffic. The motorist is regulated by the police, he has to pay attention to street lights and to white lines, and it must be realised by the pedestrian that he also must suffer regulation. I think the time has come when this division of road users must cease. It has become almost a class war and it is wrong. We must stop the bickering between motorists and pedestrians and everybody must combine to make the roads safer and pleasanter. I cannot see that this Bill does that. It is widening the gap between motorists and pedestrians and I cannot see my way to support it to-night.
§ THE PARLIAMENTARY SECRETARY OF THE MINISTRY OF TRANSPORT (THE EARL OF PLYMOUTH)
My Lords, perhaps the House will allow me to supplement what was said by the noble and learned Viscount on the Woolsack as to the view which the Government take with regard to this matter, and more especially from the point of view of the Ministry of Transport. Before I apply myself to the provisions of the Bill perhaps I might be allowed to introduce a remark or two regarding certain matters alluded to in the course of the debate. Quite naturally a great deal of attention has been paid to the appalling number of accidents upon our roads. We at the Ministry are fully aware of the figures involved, but I would like to emphasise what has been said by Lord Mount Temple—I do not say this in any way in derogation of the Bill—that the provisions of the Bill if put into operation would in all probability have no effect at all on the number of accidents that are now occurring. The noble and learned Lord, Lord Buckmaster, in referring to this subject, expressed his view of the effect upon it of a system of compulsory insurance, but the fact is that two years ago, when Parliament was considering this very important subject, it determined after very careful examination to introduce the provision that every motorist should be compulsorily insured and we have to view this particular measure in the light of that fact.
The noble Earl, Lord Buxton, referred to certain figures with regard to accidents. Various sets of figures have been alluded to. The noble Earl has left the House, but I think I ought to correct a misapprehension that may have been created by his having quoted those particular figures. The figures he quoted are not really a fair sample. I think he stated that only 5 per cent. of the accidents were said to be due to pedestrians. Those figures are not a fair sample because they are the result of investigations by the Ministry of Transport into certain kinds of accidents. They are not accidents for a definite period in a definite district, but investigations into accidents where suspicion exists that there may have been a mechanical defect in the vehicle or a defect of the road. I think therefore it must be acknowledged that these figures cannot be generally applied.
579 The noble Lord, Lord Mount Temple, referred to other figures, figures I think in the Metropolitan district, of the numbers of killed.
§ THE EARL OF PLYMOUTH
Pedestrians who were killed. I think he said that in 76 per cent. of the cases the fault lay with the pedestrian. In commenting on that I will only say that it is extremely difficult to assess the proportion of responsibility. I do not think you can draw too definite conclusions from those figures. I only want to refer very shortly to the provisions of the Bill because the Bill has been very carefully and thoroughly discussed this afternoon, but the main object of it is, as is generally agreed, to provide that in cases of accidents on the road caused by a motorist the onus of proof should be shifted from the injured person to the driver of the motor vehicle—that is in cases where injury or death is caused and the question of compensation may arise. As a matter of fact this Bill goes a good deal further than that. As a matter of fact in practice it will leave the driver with only one line of defence and that is to prove that the accident was due solely to the negligence of the injured party. I will not go further into that although I may say a word or two about it later on in connection with another matter.
May I refer for a moment to the practice in other European countries? I think the noble Lord who introduced the Bill relied to a considerable extent upon that argument. Well, my Lords, we have made very careful inquiries the gist of which the noble and learned Viscount on the Woolsack has given to the House. Though I agree that in most other European countries the general principle which is the principle involved in this Bill is accepted, I would point out once again that the application of that principle varies very considerably. As I have said, in the case of this Bill there is only one line of defence left open to the motorist. In every European country, except two I think, there are other lines of defence to which the noble and learned Viscount on the Woolsack has referred. I do not wish to go into that any further. I merely referred to it again to show that the statement that the principles 580 involved in this Bill are accepted almost generally throughout other European countries perhaps requires a little qualification.
One matter has not been referred to in this House, but I think it has been at some other stage in connection with an earlier Bill the noble Lord introduced. A comparison was made, I think, with the Air Navigation Act. In the case of the Air Navigation Act it is perfectly true that the pilot of the aeroplane is held responsible for any damage he does to property or individuals as the result of any action of his. But even in that case he is in a position to refute a claim against him if he can prove contributory negligence on the part of the injured person. Reference has also been made to the Workmen's Compensation Act and the terms of compensation which exist under that Act. There, again, I do not think that we have quite a just analogy, because obviously, in the case of employers who may be called upon to pay compensation under the Workmen's Compensation Acts, those employers have a very special responsibility towards their workmen; and in addition to that the scale of compensation which is paid under those Acts is fixed, whereas the liability under the present Bill, if it become law, is absolutely unlimited. I think that makes a very considerable difference. Further, if a workman in a case which is brought under the Workmen's Compensation Acts wishes to obtain larger compensation than that which he is entitled to under those Acts, he must claim at Common Law in the ordinary way, and prove negligence on the part of the employer. I have referred to these matters just to show that the question is not as simple as it would appear to be on the face of it. Indeed the whole of the discussion which has taken place this afternoon does go to show that we are dealing with an extremely complicated matter which requires very careful examination, and I hope that no definite action will be taken until we are satisfied that we have examined the subject from every possible aspect and angle, and are satisfied that we are doing the right thing.
There are a number of other complications to which reference has been made. The noble and learned Viscount on the Woolsack, the Lord Chancellor, has 581 referred to the kind of question which might arise if this Bill were passed into law. We have also the question of the rates of premium which would have to be paid under the present compulsory insurance system. We have had them referred to, and, as has already been said this afternoon, although the Government have only made informal inquiries with regard to this matter, I think it is quite certain that owing to the extra liability placed upon the insurance companies as a result of this Bill, the premiums would have to be substantially increased. We have also to consider the question of a provision which has been made under the Road Traffic Act, 1930, on behalf of the hospitals. There, of course, it will have the same kind of effect. It will tend to increase the rates of premium which will have to be paid if this Bill passes into law, and there are a number of other liabilities which have to be taken into account. There is also this, I think, which has to be considered, that the standard of compensation paid in this country is probably very much higher than that which is paid in any other country in the world—in any other European country at any rate—and the value that is placed upon human life and limb is probably greater. That consideration also tends to send up the rates of premium, with an effect which we are not able to gauge at the present moment.
I have really very little further to say. May I sum up in a few words what I feel in regard to this Bill? The Government do not want to be unsympathetic at all, but I think the chief objection to the Bill at the present moment is that it really goes too far. It goes further than any analogous law in any other country in Europe, except in two small countries. I think it would, too, in practice occasionally—I do not say necessarily very often—work definite injustice upon the motorist, and I think that should be avoided if it possibly can be. At the same time I quite frankly admit that there is a great deal to be said for the principle that the onus in a case of this kind, of personal injury upon the highway, in which a motor car is involved, should be cast upon the driver—that in that case he should have to prove, in order to be relieved of liability, that he used all due diligence and care in order to avoid the accident. I must 582 admit there is a great deal to be said for that principle, and that view has been urged with great eloquence and great sincerity by a considerable number of your Lordships this evening. I think I might add that I should be right in saying that the practice of the Courts in this country, as the law stands at present, is tending more and more in this direction. As the Government do not wish to be unsympathetic, and realise that there is considerable force in what has been said by the supporters of the Bill, it is not the intention of the Government to divide against the Second Reading, but I must make it clear, in fairness to the Government, that in not dividing they must not be considered as finally committed to the main principles of the Bill.
I would only like to emphasise once again that really this matter is not a simple one. It bristles with difficulties, and every kind of consideration has to be taken into account. In fact it really requires the most careful scrutiny and examination. In view of the fact that we have had a very full and useful debate this afternoon, I wonder whether the noble Lord would consider a suggestion that I would like to make, and it is this, that if this Bill receives a Second Reading he should be prepared not to press the further stages of it during the present Session. That is only a suggestion, and I make it for two reasons in particular. In the first place, because I think it is generally admitted that owing to the state of business in another place, and other considerations, it really is quite impossible that this Bill should in any case become law during the present Session. My second reason is that I honestly believe it would be very difficult, unless we had time to make further investigations into the whole question, to deal with this subject satisfactorily and immediately in a Committee of this House. If the noble Lord accepts my suggestion, or indeed in any event, I am prepared to give him an undertaking that the Government will continue to examine the matter with the very greatest care, with a view to seeing whether in the circumstances it would be desirable in the long run to effect an alteration in the law such as is suggested by the noble Lord.
§ LORD DANESFORT
My Lords, while I am grateful for the sympathetic con- 583 sideration given to this Bill, both by the noble and learned Viscount on the Woolsack and by Lord Plymouth, I can only say at the present moment that I am quite prepared to give the suggestion he has just made most careful consideration. I really cannot go farther than that at the moment. But may I add this? I think there would be a certain advantage, both to the Government and to the House, in considering this Bill in Committee. There have been various suggestions made in the course of this debate which raise what are really Committee points, and if we go into Committee the House will have an opportunity of considering those points, thrashing
§ Resolved in the affirmative: Bill read 2a accordingly, and committed to a Committee of the Whole House.