§ Order of the Day for the Second Reading read.
§ LORD DANESFORT
My Lords, the object of this Bill is to enable non-motorists, in which term I include pedestrians and pedal cyclists, who are injured by motor vehicles on the roads or are killed, to obtain for themselves or their dependants compensation for injury or death as the case may be, subject to two important exceptions. The first exception is that the accident has not been caused by the negligence of the claimant, the pedestrian himself. The second exception is that the accident has not been caused by the combined negligence of the pedestrian himself and some third person. If either of those facts is proved the claim fails. The Bill is in principle the same as that to which your Lordships gave a Second Reading on June 2 of last year, but there is this difference of detail—that the Bill as now presented is somewhat more favourable to motorists in certain respects to which I shall draw attention, than the Bill of last year.
1042 I am not going to inflict upon your Lordships my speech of June 2 of last year, but there are certain points to which, perhaps, with your Lordships' permission, I may be allowed to refer. First, is the position in regard to these accidents any better to-day than it was in June of last year1 The answer is no. The dangers of the roads from motor accidents to-day are just as serious, and in some respects more dangerous and serious than they were last June. The statistics, and I will only give one or two, are absolutely appalling. I am afraid there is some danger that familiarity with these figures tends, I will not say to produce indifference, but to blunt the edge of our sensibility and our imagination regarding the results of these accidents. The truth is that these deaths and injuries impose untold suffering on tens of thousands, not only of pedestrians themselves, but on their relatives. May I just quote a passage from a speech by the late Minister of Transport, Mr. Pybus, in the House of Commons on May 6 last? He said:The total figures of this ghastly record are not the end of the story. figures to anyone with imagination convey something else. They convey the fact that this tragedy spreads far beyond its immediate surroundings, and one's mind at once turns to the relatives, and often to dependants of the victims.May I also, very shortly, give some figures to your Lordships which have been brought up to date? In the pre-motor days the deaths from injuries from horse-drawn vehicles were relatively insignificant. Last year I gave your Lordships some details which I got from the Home Office, and I will not repeat them, but the figures were really quite insignificant as compared with the present figures of deaths and injuries. The figures for the last three years of deaths and injuries on the roads are these: 1930, killed, 7,305, injured, 177,895; 1931, killed, 6,685, injured, 202,147; 1932 —and these figures are new since June—killed, 6,651, injured, 206,410. Of those killed rather more than half are pedestrians, including many old people and young children, and of those injured something more than two-fifths are pedestrians. My Lords, one has heard it said, and it is constantly said, that the pedestrians themselves are chiefly responsible for these immense numbers of deaths and injuries and no doubt there is a certain 1043 amount of carelessness and, I dare say in some cases, a certain amount of recklessness on the part of pedestrians, but to say that they are chiefly responsible for these results is not the fact. I have got some reports published by the Ministry of Transport as to accidents outside the London area. The result of those reports is this, and it is somewhat remarkable. In the four years 1927 to 1931 the responsibility for accidents on the roads was with the drivers of motor vehicles 50 per cent., pedestrians, 5 per cent. Those are the official figures given by the Ministry of Transport.
Such being the toll of the roads, we are all agreed, inside this House and outside, that there must be some remedy devised for this intolerable state of things. We are told sometimes that all that is wanted is better enforcement of the law. We have waited for that long enough. We have waited to see the numbers of deaths and injuries reduced, instead of which we have seen them very greatly increased. It is no good lulling our consciences to rest by hoping that the enforcement of the law will stop these accidents and will give the unfortunate victims any compensation other than that inadequate compensation which they now obtain. I have said that they get "inadequate compensation."
The difficulties in the way of the pedestrian getting compensation are very great, according to the existing law. In the first place he has to prove, under the existing law, negligence on the part of the motorist. To do that he has got to give evidence. If the man is killed, or seriously injured, it is quite impossible for him to give evidence himself, and as regards getting outside evidence it is both difficult, and for many of these men, who are very poor, very costly, and for that reason impossible.
Supposing the injured person, the victim, gets over that difficulty and happens to find evidence sufficient to prove negligence on the part of the. motorist. How is he then met? The insurance companies, naturally, in these eases take every defence which the law allows them, and they very often set up the case of contributory negligence—in other words, that the victim has himself been guilty of negligence as well as the motorist. I think any lawyer in this 1044 House, and probably any layman, will agree that the doctrine of contributory negligence is one of the most difficult and costly doctrines of the law. A noble Lord beside me says: "Not a bit." Probably he can see through these difficulties better than any jury, but I will give him one instance to show how it works. It is a case which was reported in The Times of May 14 last. The case was this. A girl was run down by a motor in the street and severely injured. She brought an action for compensation. The defence was contributory negligence. There were four trials, lasting over three years, and finally the case went up to the House of Lords, and the House of Lords gave her £750 compensation. Imagine, three years of anxiety, suffering and worry, and four trials, and then she gets £750 I wonder how much of that £750 went into that girl's pocket. That was an instance of the defence of contributory negligence.
I need not enlarge upon the innumerable hard cases which I have had brought before me, but with the law as it stands I venture to think that a case has been made out for altering it, and altering it. in the way which I suggest. Someone may ask what is the justification for this Bill? There are many justifications. One is this—and it is the broad basis of justification—that the laws of the land have been fundamentally altered in favour of the motorist, by which alteration the motorist has been enabled to travel at a, speed along the road under conditions which would be quite illegal but for this legislation. The roads, which were reasonably safe up to that time, are now some of the most dangerous places in the country, as is shown by the appalling dangers which beset pedestrians and others. Is it not reasonable, under those conditions, that if you have changed the law so fundamentally in favour of the motorist you should make this relatively small change in the law in favour of the pedestrian, to enable him to get compensation where he deserves it, and to protect him in his Common Law right to use the road as well as anyone else.
There are other justifications. Let me suggest two of them. In the first place there are well-known principles of the Common Law of England which are a justification for this Bill. Further than that there are important precedents in 1045 European countries for legislation of this kind. May I say a very few words on each of those topics? As regards the precedents of the Common Law of England, may I quote from the speech of the noble and learned Viscount who sits on the Woolsack, which he made on the Second Reading of this Bill on June 2 last? It is to be found at column 551 of Vol. 84 of the OFFICIAL REPORT. He said this: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 if the animal escapes or gets out of control the owner is liable for the consequences, apart from any negligence on his part. Ties is no new principle, but a principle which has been in our law for generations, and it does not seem to he a very alarming or revolutionary change to apply it to a potentially dangerous machine like a motor vehicle…which is being driven at a high speed.So much for justification from the Common Law.
May I refer very shortly to precedents in the legislation of foreign countries? Again I quote the noble and learned Viscount, from his speech on the Second Reading of this Bill last year, in which he gave a complete analysis of the codes on this subject in some thirteen European countries. In no fewer than eleven of those countries the principle of legislation is the same as in this Bill—namely, the claimant need not, in order to bring his case into Court, prove negligence on the part of the motorist. There are two countries where the only defence open to the motorist is that the accident was caused by the negligence of the claimant himself. Then there are nine countries where this defence and other defences are open to the! motorist; and there are only two of the countries in Europe—namely, Belgium and Spain—where the law is the same as it stands now in our own country.
Such being the reasons which justify the introduction of this Bill and the necessity for it, may I very shortly refer to the provisions of the Bill itself? The provision in Clause 1 is that there is a right given to the pedestrian to claim compensation without proof of negligence on the part of the motorist, but there are two important exceptions, to which I have already referred—namely, (1), where the injury is solely caused by the 1046 negligence of the person injured; and (2), where the injury is caused by the negligence of the person injured coupled with the negligence of a third person. That second ground of defence has been inserted into the Bill since it was before your Lordships in June last, and it is an additional protection to the motorist; because it seems rather hard that whilst, if he were perfectly innocent, he should have a good defence if he could prove that the victim himself was the sole cause of the injury, he should riot have a good defence if he could prove that the cause of the injury was the negligence of the victim plus that of a third person. That is met by this clause. The proviso limits the operation of the Bill to pedestrians and pedal cyclists, the claims of motorists inter se being met by the existing law.
Clause 2, an important clause, is new since the last Bill. It gives an important right to the motorist, and the right is this. Supposing a motorist has to pay under the Bill because his car was the car which actually caused the damage, this clause enables him to obtain an indemnity from a third person by whose negligence the accident was really caused. I think that meets a point which was raised, if I remember rightly, in the course of the debate last time—namely, that it would be rather hard to make the man pay when the injury was really and in substance caused by a third party. Clause 3 extends the existing provision as to compulsory insurance, and so on, so as to cover the liability under this Bill. Clause 4 is a definition clause; Clause 5 preserves any rights or remedies outside the Bill as, for instance. under Lord Campbell's Act; and Clause 6 is common form.
It may be said—it has been said, and probably will be said again—that it is hard on the motorist to have to pay, as he undoubtedly would have to pay, a somewhat increased premium to insure him against liability under this Bill. I doubt if the premium would be very considerable, but I would ask your Lordships to consider this. The motorist has, under the existing law, which has been altered in his favour, the right to go over the roads at any speed he likes, and that causes this devastation and suffering. I ask which would be the harder case—to ask the motorist under 1047 these conditions to pay a somewhat increased premium to cover his liability in respect of these immense concessions which have been made to him by the law, or to deny, as the law at present denies, to something like 3,000 pedestrians every year who are killed and something like 60,000 or 70,000 pedestrians who are injured, the right to obtain adequate compensation for themselves or their dependants, for death or injury. There is only one other point which I will refer to shortly, because I hope that my noble friend Lord Moynihan, who speaks with great authority on these matters, will refer to it somewhat more fully. Owing to these accidents on the roads the hospitals throughout the country are to-day put to enormous expense and of that expense they only recover a small percentage under the existing law. Under this Bill they would be benefited, and I can only say that if there is an opportunity and this Bill goes into Committee in this House, I should gladly welcome any Amendment that is brought forward by the hospital authorities in this House to put the hospitals in a more favourable and a more reasonable position than that in which they now are. I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Danesfort.)
§ LORD MOYNIHAN
My Lords, in giving general support to the Bill introduced by my noble friend Lord Danesfort, I do so primarily for two reasons: in the hope, in the first place, that a further and continued inquiry may be made into the general position with regard to the working of the present law; and in the second place,. that by means of such investigation further truths will be brought to light with regard to the heavy burden suffered by the medical profession in this country, and by hospitals in particular, through the present administration of the law. I realise, as I suppose everyone must realise, that a new principle, or a modification of a new principle, is inherent in this Bill. It is a principle, I understand, of the Common Law in England that a man charged with an offence is considered innocent until he is proved guilty. Under this Bill guilt is assumed until innocence is established. There is, however, a precedent for this. Under the Workmen's Compensation Act, with 1048 which in former years I had a good deal to do, the onus of proof of negligence, if any, rests upon the owner of the whirling and dangerous machinery in which a man may have been injured or crippled. There is no more dangerous machinery to-day than that which is contained within the engine of a motor car.
I have the figures here, given to the House of Commons on February 15 of this year, showing the number killed and injured in road accidents during the last two years. They have been quoted by Lord Danesfort. For purposes of interest I have gone to the Library here and have found that during the South African War which lasted two years and nine months, there were 7,726 killed and 21,143 injured. It appears, therefore, that we are having the tragedy of a South African War, whose duration was two years and nine months, concentrated every year into the one period of twelve months. The principle which is desired to be established in this Bill is, I think, already a principle recognised in other countries, and I use that not so much as an argument in favour of this principle as an illustration of the effect of its use. Everyone who has any experience whatever of inquiries made in Courts of Law in connection with these Acts must agree that with, on the one hand, an injured man, very often of poor circumstances and of meagre substance, and, on the other, an extremely wealthy insurance company, with almost limitless resources and with the very best legal authority to support it, the scales of justice seem hardly to be balanced evenly.
I would like to call attention in the first place to the grave disadvantages which the general practitioners of this country suffer in respect of the present working of this Act. Everybody will admit that when an accident occurs upon the roads it is essential that skilled medical attention should be at once available. By that means, and by that means only, a life may sometimes be saved. A simple injury may be kept simple instead of becoming serious. A simple fracture may be prevented from becoming compound. A grave wound may be prevented from becoming contaminated and later infected, and a limb may be saved which otherwise might have been sacrificed. But if you regard the 1049 position from the point of view of the medical man, you will realise that he may be and often is very rudely interrupted in his daily work and, perhaps on a busy morning or afternoon, taken away from other patients who are naturally exasperated at the interruption in his services to them. The patient may be taken into the surgery; drugs, dressings, restoratives, anodynes of various kinds may be supplied; a wound may be cleaned or dressed and a fracture set, and a great deal of time occupied at what may be the busiest part of the day.
Only yesterday I was in consultation with a medical man who informed me that twice within the last six months he has had to redecorate his consulting room because the carpets and chairs were so soiled with blood, oil, dung, and mud from the road that they could not be used again. All this of course is an immense disadvantage and a source of expense to the medical man. It is hardly credible, but I understand from the British Medical Association it is nevertheless a fact, that in only one case in five of the motor injuries he attends does a medical man receive any payment whatever. The medical man's chief concern at the moment is not to recover his fee but to render a service; but however much appreciated the service may be, I can assure your Lordships it is a service which is very rarely acknowledged by anyone, and still more rarely is it rewarded. The medical man must somehow or other receive payment, and I have ventured constructive suggestions for your Lordships' consideration in this regard. The insurance companies, of course, cannot be expected to make payment unless it is a, legal liability, still less can you expect medical men to continue to render service to the disadvantage of others of their patients and receive no remuneration for it.
The suggestions which are those of the British Medical Association are (1) that a central pool be established in which every insurance company concerned in motor insurance, co-operating in the scheme, shall pay a small sum annually—this sum may vary from year to year in accordance with, experience; (2), that the control of the pool or fund should be vested in the hands of a competent body; (3), that payment 1050 from the fund shall relate only to first-aid treatment; (4), that the registered medical practitioner giving first-aid and submitting a report thereon to the controlling board shall be paid a fee from the pool unless he is otherwise remunerated for his services; (5), that such payment shall not be regarded, as at present it is regarded, as an admission of liability by the insurance company; and (6), that the medical report shall be available, free to a co-operating insurance company and on payment of a fee to any other insurance company. These are suggestions which I think will do something to rectify the very great disadvantages, the unjust and expensive disadvantages, under which the medical practitioners of this country are now suffering.
May I very briefly also refer to the position of the hospitals of this country? The effect upon the hospitals of the Road Traffic Act, Section 36 subsection (2), was intended to be beneficial; in actual practice it has proved to be nothing of the kind. And I would say this, that whatever else in England may be a source of national pride there is nothing in the whole country which is so great a glory to the country as the voluntary hospitals. There is nothing like them in the world. I think on all occasions we ought to take the greatest possible care of their repute and of their financial welfare. During the year 1931, I am informed by the British Hospitals Association, there were 25,000 motor accident patients taken to the voluntary hospitals as in-patients; that the cost to the hospitals was £225,000; and that the claims received were £35,000; that is to say that 16 per cent. of the cost of the treatment of the patients was paid after claims had been made to the insurance companies. These figures cover 233 hospitals and are therefore well based if not perfectly accurate.
I have in my hand a table prepared by the Secretary of the Westminster Hospital, across the road, which shows the cost to the hospitals of the treatment of motor accident patients during 1932. The cost borne by the various hospitals varies from 45 per cent. at the Westminster Hospital to 81 per cent. borne by Guy's. It is a fair inference, I think, from these statistics—I wish this table could be published in our reports—that no small measure of an success of the insurance companies is dependent upon the medical treatment which is given to patients 1051 who are injured in motor accidents, but I think there is very small recognition of that on the part of insurance companies. Unhappily, the burden which is borne by the hospitals is borne chiefly by the smaller ones In those hospitals which have over 50 beds, 37 per 100 beds per annum are taken up by motor accident cases, whereas in those hospitals with less than 50 beds, 77 motor accident patients per 100 beds per annum are admitted thereto. The intended benefit of the Road Traffic Act, Section 36, to which I have referred results in only one-sixth of the cost of in-patients being borne by any authority outside the hospitals; nothing whatever is done for the hospitals in respect of out-patient treatment which may in itself be very costly—X-ray photographs have to be taken in the case of fractures, dressings have to be put on for which the average cost is assessed quite roughly, at 2s.
Having regard to the whole country, it is a really very serious matter that the hospitals should be burdened in this way. One of the grave disadvantages is that the supporters of local hospitals are finding that their money is being used for purposes for which. it was not intended. In my own hospital, for example, in 1931, the expenditure in respect of motor accidents was £3,485 7s. and we received in return £436 4s. Last year the expenditure was £4,922 8s. 6d. and we received £649 8s. 3d. The subscribers to my hospital therefore were concerned last year in providing over £4,000 for the treatment of motor accident cases, very often affecting people who had no connection with the district and left it as soon as they were well. This all results in a disturbance of the routine work of the hospitals which I think is most objectionable. The routine work of the hospitals is not only concerned with treatment of patients from the immediate neighbourhood and from very far abroad, as well; but the quiet clinical research which is carried on and which is so important in the cause of medicine has to be compulsorily set aside. If you are a patient, the most important fact to you is concerned with your individual necessities, but you also contribute to that great fund of clinical inquiry which is steadily pursued and which in the past and to-day has done so much to prevent disease. Clinical research is rudely interrupted 1052 by this invasion of patients who have no direct concern with the hospital engaged in that work and who add all the time very greatly to the hospitals' waiting lists. We have over 2,000 patients waiting to get into our hospital and we cannot get them in at the rate we desire because the beds are occupied in such large measure by patients who come in quite casually, but quite regularly nevertheless, as the result of motor accidents.
I think that there ought to be in some degree at any rate, a rather different point of view in any legislation of the future in this matter; we should regard ourselves, in passing or changing a law, not so much as inflicting punishment upon an individual who has been proved culpable, but as affording a measure of relief to somebody who by an accident has been injured, perhaps gravely. I understand that an objection has been taken—it has certainly been taken to me by some of my friends—that we are in this Bill creating a precedent. I have no great reverence for precedents. After all, a precedent is only an innovation which is created by most urgent necessity, or by very consuming desire. I can imagine no more righteous case for a new precedent than that which attaches to the working of an Act of this kind, which, so far as the medical men of this country and so far as the hospitals are concerned, has been proved to be a conspicuous and lamentable failure.
§ THE EARL OF HALSBURY
My Lords, I have listened to the speech of the noble Lord who has just sat down with the greatest interest and the greatest sympathy, and I am certain that should the noble Lord desire at any time to bring in legislation in order to help both the medical profession and the hospitals, he would receive a very sympathetic audience in your Lordships' House; but with the greatest respect to the noble Lord I have not the faintest idea how a word that he said has anything to do with the Bill before your Lordships' House to-day. This is a perfectly simple Bill. This is a question of recovering compensation in certain cases on proof of negligence on the part of the owner or driver or user of a motor vehicle. It has nothing whatever to do with the hospitals or with the medical people, nor would it give them a single penny more or give them any more facilities. It is a question as to who is 1053 going to be responsible for the damages done in an accident and nothing else.
If I may, I will come to the Bill before your Lordships' House. First of all, the noble Lord who introduced it referred to the Common Law, and he quoted something that was said in the debate the last time this question was before your Lordships' House by the noble and learned Viscount upon the Woolsack; that was a reference to what we all know as the "wild beast case"—namely, that a person who takes a wild beast anywhere is responsible for any damage that it does. But the noble and learned Viscount on the Woolsack never went as far as to say that lie considered motor cars were wild beasts. He was merely giving an instance of what the Common Law might be, and the Common Law—I speak subject to correction—is this, that if you take a motor vehicle upon the road today and you are guilty of negligence and that negligence causes damage, you are then liable to the person n ho has suffered the damage. It is a very simple proposition. It can be found laid down quite simply in a hook that. I think we all know, or at all events those of us who are lawyers know, the third edition of Bullen and Leake. You will find there three things that are necessary in order to succeed in an 'action for negligence. First, you have to show that the defendant was guilty of negligence: secondly, you have to show that the plaintiff suffered damage; and, thirdly, you have to show that that damage was caused by that negligence. That third thing this Bill cuts out altogether. It says you need not prove that at all; that all you have to prove is that somehow or another there was apparently a connection between the, person who was injured and the motor car, then the person who was injured can get damages irrespective of whether the person who was driving was guilty of any negligence or not.
Furthermore, when you come to Clause I you find it makes it quite clear. There is a word put is which the noble Lord who was introducing the Bill left out when he was speaking, but when he came again to the actual clause he put it in, and it reads:.…except where the injury was wholly caused by the negligence of the person so injured…Why? Supposing it was caused by the negligence of both? The law at present 1054 is that if an accident is partially due to a person's own negligence he cannot recover. Why should he? I will give an instance of what happened to me on Saturday last. I was going to Waterloo Station in a taxicab, and as I was being driven over Westminster Bridge two people suddenly ran out from behind a tram car right in front of my taxicab. The driver swerved round, and by an extraordinarily good bit of driving did not run them down. But for that he probably would have killed them, or certainly would have done them harm. Supposing he had not had time to swerve like that and they had given him no chance at all, nevertheless under this Bill he would be liable. Why? Those of your Lordships who have driven your own cars know perfectly well that you get cases where pedestrians and bicyclists put you into a position no human being can get out of without possibly hurting or killing himself. What is going to happen then? If they are touched they can get compensation against you. You can only counterclaim against them if, in order to save their lives, you have smashed your valuable car by running it into a ditch.
This is a hopeless Bill. It is wrong from beginning to end. I shall not bother too much about the drafting, but let us look at what occurs in line 12 on page 1. What it says there is:or by the negligence of such person and of a third person.Supposing the person injured is not negligent, but that the third person is guilty of the negligence, why has this motorist got to pay? For instance, I have, in order to save the noble Lord's life, because he has suddenly come out in front of me, to swerve and kill somebody else or hurt someone else. It is not my fault. I had to save the noble Lord for the country, and yet, having done that, I have to pay this third person. Observe, I have to pay the person who is injured. I cannot put it on to the noble Lord. The fact that I swerved to save his life is no excuse for me. I have to prove negligence in the person I have touched as well as in the noble Lord, although he is the sole cause of the accident. Surely that cannot be right, that you have to couple the two—the negligence of such a person and of a third person.
1055 Let me take another instance. Supposing I am driving the noble Lord in my car. Somebody else steps out and I have to swerve in order to save that person's life and to do so I have to drive into a ditch. The noble Lord can sue me and I must pay him. I cannot get out of it, because he was not guilty of negligence. It was only the third person Who was negligent. Let us see what is said about that. I know what the answer is to be. Let us see the teams of Clause 2:Where a person who has made a payment under Section 1 of this Act"…So I have first to make a payment before I do anything else. Again I will assume that the noble Lord was the third person who was guilty of negligence as a pedestrian. I have to make a payment to somebody before I can claim anything against the noble Lord. By that time he may have spent all his substance in riotous living, and I shall not be able to get a penny out of him. Why is it to be put upon me that I have to pay somebody, and until I have paid that somebody I am not allowed to ask the noble Lord to give an indemnity?
Surely this Bill cannot be right from beginning to end. It may be said that these are drafting Amendments. It is not a question of drafting. The whole principle is wrong. You have got to find, first of all, that a person has been guilty of some negligence or some misconduct in driving his car before you can make him liable to pay anything, whether it be a pedestrian or whether it be another motorist or a bicyclist. Why should he have to pay? He has done nothing wrong at all. It is absolutely against all precedent. It is no good telling me that the Workmen's Compensation Act is a precedent. It is nothing of the kind. It has nothing whatever to do with it. That is not a question of negligence. That Act simply says that a person who is running works for profit must insure his workmen. That is all it comes to and nothing else. This means saying to a person: "Take your car into the road and if anybody is touched it is negligence and you must pay. They can be wilfully reckless but you must pay if they are touched. unless you can show it was wholly caused by their negligence." What does that mean? We have been told that contributory negligence is a difficult thing to understand. I should like to know who 1056 is to construe what is meant by "wholly caused." That will be far more difficult.
What does "wholly caused" mean? Is it "wholly caused" because the man is there? Otherwise the accident would not have happened. Is it "wholly caused" because he steps into the road? That happened in a case in which I was engaged the other day, where a man stepped into the road with his back to the oncoming traffic on a dark rainy night and went straight in front of a taxicab and was knocked down. Was that "wholly caused"? The taxicab was there being driven along the road. Therefore it was partly caused by the taxicab being there. Is that the sort of thing that is to be considered? Is that the sort of thing that the man in the street can understand? The whole principle is wrong. Go back to the old Common Law, where you had to prove, firstly, that the defendant was negligent; secondly, that the plaintiff suffered damage; and thirdly, that that damage was caused by that negligence. I hope your Lordships will not accept the Second Reading of this Bill.
§ LORD BUCKMASTER
My Lords, the terms of this Bill are simple and its purpose is plain. It only touches a very small part of a very large question. It does nothing to limit the slaughter that takes place daily upon our roads. It does nothing to remedy the obvious injustice of compelling heavily-burdened taxpayers to contribute out of their rates and taxes to the maintenance of roads for vehicles which destroy their peace and threaten their property. These great questions which both humanity and justice combine in demanding should be redressed are wholly unaffected by this Bill. And so far as 1 can see they are wholly disregarded by the Government, for may I say that the affecting passage read by the noble Lord, Lord Danesfort, from the answer of some representative of the Government in another place affected me about as deeply as would the tears shed by a crocodile. This Bill deals with another and totally different question—the question as to what pecuniary compensation ought to be made if a man licensed to drive a motor vehicle causes damage to a foot passenger upon the road.
I would venture to suggest to the noble Earl who has just sat down that he has 1057 completely misapprehended the reason why this Bill is necessary. The reason is that by special legislation and special privilege people has e become entitled to put upon the roads machines which they may drive at any pare to the public peril. The result has been a lamentable list of figures referred to by more than one speaker this afternoon. It is in return for that privilege That this Bill is required and it is for that reason that the ordinary rules that affect ordinary questions of negligence have no application here. I wonder if your Lordships have ever realised the nature of these accidents. The noble Lord, Lord Moynihan, would tell you at once that the man who is struck, even if he is mercifully rendered unconscious, is so completely disturbed that he is frequently unable afterwards to tell you what happened. The man driving the motor car, even if he remains and does not avail himself of that privilege and temptation, which the existing law provides, that enables him to drive on and leave his victim on the road with no risk whatever beyond the mere chance of censure or a trivial fine, is not in that position. The man injured is in no posit: on to give evidence, and unless there happen to be people about, how is he going to get redress? The way he gets redress, if he is well-to-do, is to instruct competent solicitors who proceed at once to attack the insurance company, and then it almost always happens that the insurance company will pay. But if a person is poor what is he to do? He cannot employ competent solicitors. The small case is instantly met by the overwhelming weight of the insurance company, and insurance companies can save on the poor people while they have to pay for the rich.
I know that these things happen. There was a case within my own knowledge only the other day of a working girl struck down by a motor vehicle and, as said just now, knocked unconscious. When she recovered, proceedings were taken by her people against the insurance company. They declined absolutely to pay a shilling. They said they had two witnesses. So they had. They had the person on the motor bicycle and the person riding behind. What witnesses had this girl? What witnesses could she have? Fortunately, the girl had friends in a better position and they got a small compensation for her; but without them 1058 she would not have got a penny. That case is repeated day after day. It is to remedy that class of thing that this Bill is necessary and I say the motor car people have no reason to complain of this Bill as part of the price they have to pay for a privilege which, in many cases, they abominably misuse.
That is not all. I agree entirely with the noble Lord, Lord Moynihan, that it is a great pity that this Bill has not gone further, and I am by no means certain that his remarks were as irrelevant as the noble Earl, Lord Halsbury, suggested. I think it way even be possible to amend this Bill, and I was going to seggest to the noble Lord, Lord Danesfort, that there are ways in which it should be amended. The first suggestion I was going to make was one to which the noble Lord, Lord Moynihan, referred. It is nothing short of a scandal that horn_ itals and doctors should be mulcted in order to pay for the recklessness of motor ear drivers. That is what is happening day after day. When these accidents occur I believe there is no instance where a doctor does not come at once, summoned from anywhere, and frequently his immediate attendance saves life. Where is he going to get payment? He can get nothing unless the person injured can recover from the insurance company or unless the person injured happens to be well-to-do. If not, he may have expended his time and energy and even gone to great personal expense and be left absolutely without a penny. It is a disgrace.
The thing that amazes me is that the people interested in the motor car industry have not realised it and have not said: "We must do something to see that when people, whether we are negligent or not, are injured by our machines and are attended by doctors, the doctors should receive proper compensation for their services." My idea of meeting it was not quite that of the noble Lord. My idea was that every insurance policy taken out by motorists should cover medical expenses, so that the hospital or doctor should be at liberty to recover from either insurance company in the first instance, arid then the companies settle which had insured the person who is to blame—but that the doctor should be able to get immediate payment. I 1059 suppose that would to some extent increase the insurance, but since when has it been that the care of life and limb and all the privileges we enjoy are to be swept on one side because it will cost a little more to those who drive motor cars? Until motor cars came along no such argument was ever heard in the House of Commons or the House of Lords.
Was it ever heard when railway companies were called upon to take steps for the protection of life They were bound to do everything necessary, sometimes more than was necessary, because everybody reckoned that life was far more valuable than the payment of a certain sum of money. I hesitate to use strong language, but to me it is a mean thing to say we will not provide for this because it will cost a little more on the insurance. If this Bill is capable of elastic amendment, as I trust it is, I sincerely hope that some such suggestion as I put forward may be incorporated in it, and that something may be done to indemnify one of the most public-spirited and hardworking professions who have hitherto been called to pay out of their own pockets for the misdeeds of those who drive cars.
The next thing is, as the noble Lord knows, that if a child is killed no one can recover any money at all. If the child is injured it is possible for his next friend to sue and to obtain compensation for injury, but if the child is killed there is no means of getting either the cost of medical attendance or even the cost of the last sad ceremony, which, if I had my way, I would compel the person who killed the child to attend. I would go further. In many respects the law of Scotland is far wiser than the law of this country-. Money can never be a compensation for the injury a man may suffer through the loss of his child, yet Scotland permits money to be recovered, not because you can compensate by money for life, hut because it is something that the person who has taken the life has to pay, I see no reason why that should not exist here to-day.
There is another thing which I think the Bill urgently requires. There is an old principle of English Common Law which provides that a personal action dies with the person. Let me tell your Lordships how that operates. I knew a 1060 man who was grievously injured by a motor car driven by a rich man. Proceedings were taken. It was really impossible to deny negligence—it was gross; but the discussion as to how much should be paid was prolonged and prolonged until the man who committed the injury died, and with that all right to compensation vanished. The personal action had gone and the man could recover nothing from the insurance company and of course nothing from the person who, although. his estate was abundantly able to pay, was by the law of the country relieved at his death of all liability. The same is true of a person injured. If he dies his representatives cannot continue the action against the person who has killed him, although if people are dependent on him they can get compensation by virtue of another Statute. I ask the noble Lord to consider whether it ought not to be provided that in all those cases death should not cause an end of the remedy.
Really that is all I desire to say. I would only appeal to those who are interested in the motor industry to see if it is not possible for them to bring themselves a little more nearly into touch with the feelings of the people who have suffered injury at their hands. That it is only a small number of motorists I do believe, but that their number makes them a peril to all decent people who walk down the roads is obvious to any one who will take the trouble to walk down a road like the Bayswater Road and cross it from north to south. I have begun to cross when the road was quite clear and before I have reached the middle of the crossing had a car on me. There is nothing to check that pace. The law has given that liberty and it is not too much to ask that the law should impose the mild liability that this would provide.
§ THE EARL OF HALSBURY
I did not like to interrupt the noble and learned Lord while he was speaking, but does he suggest that the railway companies insure their passengers against accidents short of the proof of negligence?
§ EARL HOWE
My Lords, I have listened with the greatest attention to the arguments used by Lord Danesfort when introducing this Bill. The noble Lord at once related to us the terrible figures of the total number of accidents which take place on the highway. I would ask your Lordships to note the fact that the noble Lord's figures are those cif the total number of accidents which take place on the highway—that they relate to all forms of accidents, many of them not motor accidents at all and in which no motor vehicle has been concerned. Lord Danesfort went on to suggest that there were no fewer than 3,000 pedestrians killed every year in respect of whom it was impossible to obtain compensation, though presumably motorists were liable.
§ LORD DANESFORT
The noble Earl misapprehended what I said. I said that out of the total of those killed and injured about half of those killed were pedestrians—that would be about 3,000. I did not say that in respect of none of those could persons obtain compensation, although few can under the existing law.
§ EARL HOWE
I beg the noble Lord's pardon if I misquoted him or did not quite understand what he said, though I took his words down at the time. But the question we are dealing with indirectly in this Bill, the question of accidents, is one of the most appalling in this country. It is one to which I have ventured to draw your Lordships' attention on many occasions. It has often seemed to me that the figures, terrible as they are, are almost in danger of leaving people cold. Not half enough thought has been devoted to them in the past. I am glad to think that much more attention is now being paid to them and I am glad to know that the Ministry has taken special steps, I believe in conjunction with the Home Office, to collect really adequate statistics regarding the accidents on the highway and how they are caused.
I am sure that everybody who finds himself in a motor vehicle has, as I have, every sympathy with the case so ably and so splendidly put forward by Lord Moynihan. Everyone must have been enormously impressed by it. Speaking as a motorist—and here I accept what the noble and learned Lord has just said about what motorists should do and how 1062 they should deal with this position—I should welcome any well-considered and well-thought-out proposals to deal with what is obviously an intolerable injustice. to the medical profession, and indeed to the voluntary hospitals, but I do not quite see, as indeed Lord Halsbury did not quite see, how the question really connects up with this Bill. This is not really so simple a question as it appears to be in the Bill. The Bill first of all says, as has been pointed out by other speakers, that in any accident where a motor is concerned the motorist is at once to be presumed to be guilty, no. matter what may have happened, and he-has forthwith to pay. Lord Danesfort then -said that lie had given the motorist protection, because if he could prove that the accident was due to a third party then, after payment, he could recover from the third party. What happens if the third party is a man of straw? The compulsory insurance of motorists was instituted for that very reason, that the wrong-doing motorist was sometimes found to be a man of straw, and therefore it was necessary for the protection of those who were injured that all motorists should be compelled to insure. Is it conceivable that all pedestrians and users of the road should be compelled to insure? It is impossible, and therefore I think the protection in Clause 2 of the Bill is hardly practicable.
Then there are other objections. What I want to do—and I am perfectly certain that this is the way in which the question is tackled in other countries—is to fix the responsibility on every user of the highway for his acts, whatever he may do. The noble and learned Viscount and other speakers reminded us that the motorist has received great privileges by legislation. If that be so, well and good, and I agree that in other countries, as has been stated, the law is rather different from our own in this respect, but at the same time most other countries accept regulations for pedestrians. For instance, I believe that in certain of our Dominions the pedestrian is liable for his acts. I have here a letter which appeared in The Times a very considerable time-ago, where it was stated that:The pedestrian traffic in Sydney and Melbourne is the best regulated of any city I have ever seen, and London could well: take a lesson from them.1063 I know of other cities, and all your Lordships will be familiar with the regulations in Paris, where the crossing pedestrian traffic is regulated by lines of studs. If the pedestrian crosses outside the studs he is liable for any accident that occurs, and must prove that the accident was not his fault. He can be haled up and fined for a breach of police regulations. I can recall one instance where 164 persons had been compelled to attend at one police court in Paris and were fined one franc each for having crossed the road not between the studs.
If this Bill proposes to fasten the responsibility upon the motorist, how would the Bill deal with a case like this I have here the report of an inquest held in the City Coroner's court, in respect of a fatal collision, when a motor lorry, in avoiding a pedestrian on the Victoria Embankment, killed a taxicab driver. Mrs. Lily Ford, of Grove Road, Brixton, said she ran across the Embankment near Temple Avenue. She always ran across the road. She added: "I have only a confused idea of what occurred. I am very nervous in traffic." The Coroner then intervened and said: "Refuges are erected for people like you. I think you are quite a danger to motorists." Then the lorry driver described the accident, and said that the lady stood still arid then, when he was only three or four yards from her, she darted forward, and in swerving to avoid her he collided with the taxicab, and the driver was killed. I suppose that under this Bill the lorry driver would have to pay the dependants of the taxicab driver, and then would be left to try and recover from Mrs. Lily Ford, of Grove Road, Brixton, the amount which he had paid.
It does not seem to me that this Bill is the way to tackle the question. If you want to get better conditions on the highway I think you have got to bring home to users of the highway that they are responsible for their actions, and I am perfectly certain that it is very little good having footpaths, refuges, and so on, and all the other devices for safety on the highway, unless you can compel people to use them, or, if they do not, let them take the consequences of their acts. You have only got to go out into Parliament Square to see how people instead of passing by the subways, or 1064 waiting until the crossing is clear, dart across between the traffic, often just as the policeman is waving it on. I am only concerned with the question of safety on the highways and I submit that this Bill will do nothing to promote that safety but will positively do harm, because it will have a very bad psychological effect, in making people think that they are free from the consequences of their own actions. It may also possibly lead to blackmail. Even under the existing law attempts have been made by individuals, or combinations of individuals, to try to secure compensation from motorists by methods of blackmail. I do not say that those methods are general, but I think we should be very careful not to increase the possibility of that danger. I shall certainly record my vote against this Bill for the reasons that I have stated. If Lord Moynihan can frame proposals—I do not like the idea of a pool very much, because the only compensation which a doctor would get would be out of the pool; but if some sort of legislation can be introduced on the lines which he and the noble Viscount suggested this afternoon, I should welcome it, so as to enable the medical profession and the voluntary hospitals to get payment.
THE EARL OF KINNOULL
My Lords, I have some sympathy with the objects of this Bill, and I was extremely impressed by the speech of Lord Moynihan and the figures that he quoted. In fact, so impressed was I that I shall certainly not vote against the Second Reading of the Bill. I also agree entirely with what Lord Buckmaster said regarding the compensation that should be paid to doctors who have attended an accident, and who in many cases do not get paid. At the same time I think we are tending to have too much legislation against the private motorist. I am not saying anything about heavy vehicles, but if you keep on legislating like this you will drive the private motorist off the road altogether. After all, the private motorist is also a pedestrian, and you might just as well enforce legislation to make every pedestrian insure himself against being knocked down by a motor car.
I warmly agree with what fell from the noble Earl, Lord Halsbury. I am not a lawyer myself but I think he said that the Common Law is that you have to prove, first of all, negligence on the part 1065 of the driver of the motor vehicle, secondly, that the person who is knocked down receives an injury, and, thirdly, that it was through the driver's negligence that that injury was received. What would happen under this Bill which makes a third party jointly responsible? There are many occasions when it would he impossible to find a third party, although he might really be solely responsible for the accident. Supposing a dog runs out of a gateway and a motorist, in endeavouring to avoid hurting or killing it, swerves and knocks down a man on a cycle. It is not the motorist's fault. If the dog had not run out he would not have swerved. He might be on a wet road, and his car might get out of control. Is the driver of that car to proceed against the owner of the dog for allowing it to run across the road?
Again, supposing the case of a wet road. This particular instance happened to me three or four years ago. I was driving along the riverside at Kingston, where there are some tramway lines, and I was proceeding at 18 miles an hour, a speed of which I do not think anybody in this House would disapprove. It was an extremely wet day, but there u as fortunately nothing else on the road. What happened I do not know to this day. I imagine my back wheels must have caught in the tramlines, because I got into a skid, and before I could rectify it I turned completely round. Supposing there had been a cyclist there and I had knocked him down, would I, under the terms of this Bill, have had a case against the tramway company or the county council, or whoever it might be? Because it would not have been entirely my fault. I think that Clause 1 goes too far when it says that damages shall be recoverable in every case.…sexcept where the injury was wholly caused by the negligence of the person so injured….I think there is practically never a case where an accident is wholly caused by negligence of any one person. It is usually a case of there being a tremendous amount of contributory negligence. I certainly shall not oppose the Second Reading of the Bill in the Division Lobby, but I hope that very drastic Amendments will be moved on the Committee stage.
§ THE LORD CHANCELLOR (VISCOUNT SANKEY)
My Lords, speaking personally, and not as Lord Chancellor, I very much hope that your Lordships will see your way to give this Bill a Second Reading. I do not say that I approve of the wording of all the clauses, but I think the principle underlying the Bill certainly deserves to be worked out in Committee. May I give an example? The days are drawing out. I am very glad to think that many of your Lordships will soon be walking home. It is rather a late debate to-night, and you will probably have to walk home in the dark. Suppose you are crossing the street and you; are knocked down by a motorist. For the next three or four months matters would not very much interest you. You would probably be taken to some hospital where your wounds would be attended to, and you would have a long period of convalescence, and probably in the whole wide world you are the man who would know least about the accident. But the matter does not stop quite there. Supposing you are walking along a country road where there are not likely to be witnesses of the accident, and you are knocked down by a motorist, what chance have you of succeeding in an action? You will know nothing at all about it.
I suppose that when your Lordships get home to-night many of you will listen to the wireless programmes and you will have the usual experience of listeners, who hear something like this two or three times a week:An elderly woman was knocked down at 9 o'clock last Friday night in High Street, Wimbledon. Will anybody who witnessed the accident come forward or communicate with Scotland "Yard. Telephone, Whitehall, 1212.And unless those witnesses come forward that elderly woman will not get a penny compensation.
How can this Bill be said to be unfair to the motorist? Because, after all, you are doing nothing more than this. At a certain period of the case you shift the onus. At present a man has to go into the witness box, and he has to prove, first of all, that the accident has taken place, and then he has to prove negligence, but he is the very last man who can prove it. Surely, it is only fair in those circumstances that the onus should be shifted. You are not in any way penalising the motorist, but you are in 1067 effect saying—I do not quite agree with the word "wholly," but I will come to that later—that if a man is knocked down and rendered unconscious, in the circumstances which I have described, then it is sufficient for him at first to say: "I was crossing the road and I was knocked down," and then the onus is shifted, and it is for the motorist to prove "It was not my fault."
I do not quite like the words of Clause 1, because I think the word "wholly" wants reconsideration. All you are asked to do in this particular case is to say that where a man or woman is knocked down and is the one person who cannot give evidence of it, as soon as he or she has proved that the accident has happened, you will put the onus on the motorist, and say to him: "You can go into the witness box, you can tell the jury what happened, and you will be able to persuade them it was not your fault, or that it was the fault of the other person." It is only to that extent shifting the onus. Then it is said: Why should you take away the right of the motorist to have the case proved against him; that is the Common. Law of England? The answer is this. You have given the motorist very, very great advantages. You have allowed him—I am not saying wrongly—to drive at any speed he likes along the road. Surely, in return for that, it is no very great hardship to say: "Well, if you are in charge of this potentially dangerous machine, and driving at that pace, and there is an accident, it is up to you at any rate to prove that it was not your fault."
May I give two or three figures to show that this matter has reached alarming proportions? Nearly all these cases of personal injuries are tried by juries, and I have the returns for the whole of England and Wales for last year. Altogether in special jury cases there were 452 actions, and of that number 258, or 57 per cent., were in respect of personal injuries. The figures relating to cases which came before common juries are still more remarkable. Altogether there were 745 cases tried in England and Wales last year and no fewer than 525, or 70.5 per cent, of the actions tried before common juries were in respect of cases of personal injury. In these circumstances it is, I think, in the public interest that this Bill should at any rate receive a Second Reading, 1068 and we can go into the matter very carefully when we come to Committee. I am free to confess that there are one or two features of the Bill which might be improved—there are one or two things that might well be added—but I do hope your Lordships will agree with me that this is not the time to put an end to the Bill.
My Lords, I rise to say, so far as this Bill is concerned, that everyone who listened to the noble Lord, Lord Danesfort, must be in sympathy with it. At the same time the Bill is not the simple Bill as it was described a short time ago by the noble and learned Viscount. In fact, the debate this afternoon has proved that there is a very great difference of opinion amongst all those who have spoken, not only as to what the Bill means, but as to how the Bill might be improved. We have heard the legal profession—that is to say, the noble and learned Viscount who sits on the Woolsack, the noble and learned Lord, Lord Buckmaster, the noble Earl, Lord Halsbury, and the mover of the Bill itself—and they have expressed their views, differing views very largely, upon the effects of the Bill. We have heard the views of Lord Moynihan, representing the medical profession and the hospitals, and I am sure we all have the greatest sympathy with the views that the noble Lord expressed. We, have heard also the views of Earl Howe on behalf of the motorists. But we have not heard this afternoon a single voice raised in connection with the insurance side of this Bill.
I do not propose this afternoon to put up a case on behalf of the insurance companies, but I venture to say this: that this Bill as it is framed will alter entirely the fundamental principles upon which third-party risks are based and third-party payments have been made in the past, and I do not think that if that is the case—if it is going to alter the Common Law, as we have been told it will—that it is right that we should pass this Bill as a simple measure which would go through its ordinary stages in this House, nor that we should, by a Bill brought in by a private member, pass legislation which will increase, as we know it will increase, the whole of the insurance premiums payable throughout the country, both by pleasure motorists 1069 and by commercial motorists. I venture to say that the commercial motorists are the larger portion of the two, and therefore it will impose a much larger impost upon industry.
I do not think we should pass this Bill, and allow it to go into Committee stage in this House in the ordinary way. Supposing this Bill were to receive its Second Reading this afternoon, I venture to hope that the noble Lord who has in-traduced it will ask your Lordships to refer it to a Select Committee. I think it is perfectly obvious from the statements which have been made this after-neon and from the numerous suggestions which have been made for the amendment of this Bill, that it requires far more serious and far deeper consideration than can be given to it by the ordinary procedure through the Committee stage of your Lordships' House. If the Bill were referred to a Select Committee it would be possible also for the insurance companies to make their representations, and to explain to your Lordships what the real effect of this Bill is going to be from the technical and general insurance point of view. That is the reason why I have risen this afternoon to suggest that if this Bill receives a Second Reading it should be referred to a Select Committee of the House.
My Lords, I do not propose to delay your Lordships by repeating the arguments which have been advanced against the Second Reading of this Bill, but to my mind it is monstrous to put on a motorist the almost impossible task of proving that an accident was due wholly to the negligence of another party. That would simply create a specially privileged class of "jay-walkers." The point that I wish to mention is quite a short one. It is this, that I think the Bill will defeat its own object to a very large extent. If the roads are to be made safer, it is eminently desirable to encourage the careful driver in every way possible, and the insurance companies lately have endeavoured to do this by. giving an increased "no-claim" bonus to those who make no claims. If this Bill is carried a person will have to make a claim on his insurance company, and thus will lose his "no-claim" bonus, whether he has been at fault himself or not, and that to my mind is a very strong point against the passing of this Bill in 1070 anything like its present form. I hope, my Lords, that this Bill will not be given a Second Reading.
§ THE PARLIAMENTARY UNDERSECRETARY OF STATE FOR THE COLONIES (THE EARL OF PLYMOUTH)
My Lords, after what has been said by the noble and learned Viscount on the Woolsack I do not wish to detain your Lordships for more than a comparatively short time. This Bill differs in two main respects, as has been already shown, from the Bill which the noble Lord, Lord Danesfort, introduced last Session. In the Bill of 1932 the only defence provided for the motorist lay in the words at the end of Clause 1: "Unless the injury was caused by the negligence of the person so injured." Now that has been altered. The defence provided now is! merely this, that he has to prove thatthe injury was wholly caused by the negligence of the person so injured or by the negligence of such person and of a third person.''In other words, it affords the motorist an additional defence—namely, that of showing that the accident was caused wholly by the negligence of a third person if coupled with some negligence on the pact of the injured person. Clause 2 is a new clause. It provides that the motorist may recover any payment which he has made to the injured person and any costs which he may have incurred from a third party if he can show that the accident was due to the negligence of that third party.
I think it is clear that the noble Lord has attempted to meet some at any rate of the criticisms which were made against his original Bill. I do not know whether he has been very successful in doing so, but, if I may be allowed, before dealing with some of the major principles involved in the Bill I should like to say a word or two about Clause 2. Clause 2, as I have explained already, gives the motorist, when he has made a payment in respect of an accident of this kind, the opportunity of recovering what he has paid and the costs that have been incurred if he can prove that a third party has been really the cause of the accident. I honestly do not think that this provision is going to be of much effective help to the motorist in actual practice. To begin with he would have to take that third party into Court with all the attend- 1071 ant expenses. Again, as I think the noble Earl, Lord Howe, pointed out, the third party would not be insured against a risk of this kind, and, therefore, it is quite unlikely in many cases that the chance of the motorist obtaining anything by way of redress would be very great. However, I do not wish to dwell upon that point, because I do not imagine that the noble Lord looks upon it as the most important part of his Bill.
The situation at the present moment is this, that if a person has been injured upon the road by a motorist he must prove before he can recover damages that there has been negligence on the part of that motorist. I think the main purpose of the Bill is to shift the onus of proof in a case of this kind from the injured person, the plaintiff, to the defendant motorist. I think that is the primary effect of this Bill. At the same time it restricts the lines of defence of the motorist to two—namely, that the accident was caused wholly by the negligence of the injured party or wholly caused by the negligence of the injured party plus a third person. As a matter of fact the motorist would not escape liability simply by proving that the accident could not have been avoided by the exercise of any reasonable care upon his part.
The noble Lord in introducing this Bill referred in some detail to the practice which obtains in other countries with regard to the question of compensation in cases of this kind. I do not wish to go over all that ground again. May I go back for a moment to what I said last year when a similar Bill was before your Lordships? The Government had made a considerable number of inquiries to find out what the actual practice was in different European countries, and we obtained information with regard to thirteen. It appears that in eleven out of those thirteen cases the onus of proof is already to a lesser or greater degree upon the defendant motorist, and I think in only two cases out of the thirteen is the position exactly as it is in this country at the present moment. On the other hand, in only two out of the thirteen cases is the position of the motorist worse than it would be in this country if this Bill were actually passed into law. I think one can generally 1072 assume from that that at any rate there is a considerable precedent for altering the principle in so far as the shifting of the onus of proof is concerned.
As I have said, in a large majority of European countries the practice already exists that the onus of proof is upon the defendant motorist rather than the plaintiff. I am quite prepared to go as far as that. At the same time I do wan t to make it quite clear that in the opinion of the Government this measure goes a good deal too far. For instance, the motorist could be put in a very difficult, perhaps a very unfair position. He is left with no defence even if he can prove that there was no fault on his part, or if he can prove that the accident was due to force majeure, or that the occurrence was inevitable. These are defences which obtain in other countries, and which think may be looked upon generally as reasonable ones. I undertook when the Bill was before your Lordships last year to make further investigations with regard to the possible consequences of a measure of this description becoming law, and I dare say your Lordships might be interested to know to what extent it has been possible for me to implement. the promises I gave then. Inquiries have been made from representatives of insurance companies, and there can be no doubt that any Bill in the form submitted by the noble Lord would have the effect of greatly increasing the number of claims and the amounts payable in damages or compensation. I have no doubt that that is one of the objects of the noble Lord. but I think nevertheless these are facts which cannot be left out of account.
I think it is generally admitted that the passage into law of the Road Traffic Act of 1930 has on the whole improved the position of pedestrians, particularly in cases of this kind, in that they do receive more sympathetic treatment both from the Courts and from the insurance companies, although I am quite prepared to admit the position is not as yet satisfactory. am further informed that the effect of the compulsory provisions of that Act has in any case been to increase appreciably the liabilities of the insurance companies, not only from the point of view of increasing the number of claims, but, what is even more marked, in creating a tendency to raise still further the already high level of compensation 1073 obtained in English Courts, for the obvious reason that it is known that in every case the defendant motorist has an insurance company behind him. I am also told that the shifting of the onus of proof, as provided for in the noble Lord's Bill, from the plaintiff to the defendant, would inevitably have the effect of raising substantially existing insurance premiums, and in the opinion of the insurance companies would also tend to add to the already numerous class of fraudulent or collusive claims. I entirely agree that these arguments are not conclusive. At the same time, I think they are arguments of importance and should be very carefully considered before we make any fundamental alteration in the law of the country in respect to these cases.
The noble Lord who introduced this Bill spoke at considerable length on a subject which I know has exercised your Lordships on many occasions and that is the large number of road accidents which occur year by year and month by month and day by day in this country. I have every sympathy for his point of view on this matter, but I think it is only fair to point out—I am not sure that he did not point it out himself—that this Bill if it became law would really have no effect upon the number of accidents in this country. At the same time I entirely agree that that in itself is no reason why the law should not be altered if it can be shown that the law as it at present stands is not a just or fair one. As I see it, there are two main issues involved so far as this Bill is concerned. In the first place, we want to know whether the facts justify a reversal, in the case of injuries inflicted by motorists, and by motorists alone, of what has been for a long time a fundamental principle of English Common Law. In the second place, one wants to enquire whether it is just to deprive the motorist of any defence on account of the contributory negligence of the person injured. In a large number of cases where the motorist has been negligent and the person injured may also have been negligent the motorist under this Bill will have no defence at all.
These are questions which we must ask ourselves and on which, I think, we should come to a considered opinion before we pass any legislation which will make a fundamental alteration in the 1074 present law. With regard to the first point I want to say this. In my opinion the argument on the side of shifting to some extent the onus from the plaintiff to the defendant in the case of motor injuries is a very strong one. I entirely agree with what the noble and learned Viscount on the Woolsack said in that respect. A motor vehicle on the road is a dangerous instrument and there is a great deal to be said for requiring the user of a vehicle to pay compensation in the case of bodily injury or death to a pedestrian unless he can show that the accident could not have been avoided by the exercise of any reasonable care upon his part. I frankly admit that I think there is a very great deal to be said for bringing about a change of that kind; but I do want to repeat what I have already said, that, at the same time, I think the Bill as it stands at present goes a great deal too far.
There is really very little more that I have to say. There is one thing which I think the debate has definitely proved—I am speaking now on the subject of the question of compensation and insurance generally rather than about this Bill—and that is that the subject; is very complicated and very technical indeed. It bristles with difficulties and requires very careful consideration. I listened with a very great deal of interest and attention to the extremely earnest plea made by the noble Lord, Lord Moynihan, on behalf of the medical practitioners and the hospitals of this country. That is another aspect of the situation which is perhaps not very germane to the Bill in its present form. I repeat that one thing the debate has made clear is that this subject is a very difficult and complicated one. Therefore I wish to reinforce the suggestion already made by the noble Viscount, Lord Elibank, to the noble Lord who introduced this Bill—that is, that if it receives a Second Reading, as I hope it will, he will be prepared to move that the Bill should be sent to a Select Committee for examination and report. I think that that kind of body would be more suitable for going into the very complicated and in some cases controversial questions which are bound to arise in the examination of a Bill of this kind.
In Select Committee it would be possible for evidence to be tendered on 1075 the subject by all kinds of bodies who are interested—insurance interests, motoring organisations, the Pedestrians. Association and other bodies of a similar kind—and in addition to that you could examine alternative proposals which are quite likely to be made. You could examine proposals such as have been made in this House this afternoon by the noble Lord, Lord Moynihan, and others. These are two directions in which I feel that the possibilities are certainly worth further exploration. I make these suggestions quite tentatively in order to show that there are possibilities which ought to be gone into before any decision is come to on this subject. For instance, I think a scheme might be devised somewhat on the lines of the Workmen's Compensation Act for compensation in cases of motor accidents with limited liability and a fixed statutory scale without regard to negligence. That is to say, a statutory scale of compensation would be payable on proof of the injury having been caused by the motor vehicle. Of course, as in the case of workmen's compensation it would still be open to the plaintiff, if he is not satisfied with the scale of damages, to sue the defendant at Common Law in Court in order to recover further damages if he can. This is a system which I think has been recommended in America by a Committee set up under the ægis of the Columbia University Council of Research in Social Science.
There is another possibility, and that is of drawing up a scheme adopting the principle which has been adopted in certain European countries already—namely, the apportioning of damages in cases where it can be shown that there has been a degree of negligence on the part of both the plaintiff and defendant. That practice obtains in two or three European countries. I do not wish at
|Sankey, V. (L. Chancellor.)||Astor, V.||Clwyd, L.|
|Burnham, V.||Conway of Allington, L.|
|Buxton, E.||Goschen, V.||Danesfort, L. [Teller.]|
|Iveagh, E.||Mersey, V.||Hay, L. (E. Kinnoull.)|
|Lucan, E.||Novar, V.||Howard of Penrith, L.|
|Munster, E.||Marks, L.|
|Plymouth, E.||Abinger, L.||Mendip, L. (V. Clifden.)|
|Selborne, E.||Alvingham, L.||Moynihan, L. [Teller.]|
|Stanhope, E.||Arnold, L.||Oriel, L. (V. Massereene.)|
|Strafford, E.||Banbury of Southam, L.||Ponsonby of Shulbrede, L.|
|Vane, E. (M. Londonderry.)||Charnwood, L.||Trent, L.|
§ this stage to go into the workings of a scheme of that kind, and naturally I do not wish to express any definite and final opinion on the suggestions I have made. I have merely alluded to them this evening in order to show that there are all sorts of possibilities which I think ought to be looked into and examined, and I venture to say that in my opinion a body of the nature of a Select Committee is far more suitable to examine a question of this sort than a Committee, if I may be allowed to say so, of your Lordships' House. For those reasons I would ask the noble Lord whether, in the event of the Second Reading being carried, as I gather it will be, he would be prepared to move that the Bill should be sent to a Select Committee for examination and Report.
§ LORD DANESFORT
My Lords, I have to thank the noble Earl for his expression of the desire that the Bill should be read a second time and I most readily accept the proposal that has fallen from the Government that if the Bill is read a second time it should be referred to a Select Committee. I need not go into my reasons at length, but put shortly they are that a good many suggestions have been made in the course of the debate by Lord Buckmaster, Lord Moynihan, and one or two who have spoken for the insurance companies, which could be better enquired into through the machinery of a Select Committee than by a Committee of the Whole House. Therefore, if your Lordships are good enough to give the Bill a Second Reading, I will immediately propose that it be referred to a Select Committee.
§ On Question, Whether the Bill shall be now read 2a?
§ Their Lordships divided:—Contents, 31; Not-Contents, 2.1077
|Halsbury, E. [Teller.]||Howe, E. [Teller.]|
§ Resolved in the affirmative and Bill read 2a accordingly.
§ LORD DANESFORT
My Lords, I now move that this Bill be sent to a, Select Committee. I do not know whether it is necessary to say anything relating to the terms under which the Committee will be appointed, but I trust that there will not be an array of legal talent appearing before this Committee—though perhaps I am speaking against my own profession —which would of course add greatly to expense and delay.
§ Moved, That the Bill be referred to a Select Committee.—(Lord Danesfort.)
§ On Question, Motion agreed to: Bill referred to a Select Committee accordingly.