§ Order of the Day for the Second Reading read.
§ LORD DANESFORT
My Lords, the object of this Bill is to secure in proper cases adequate compensation for pedestrians, pedal cyclists, and other non-motoring persons who are killed or injured on the roads, in view of the entirely inadequate compensation which, under the existing law, they are able to receive. The Bill is substantially, almost verbally, identical with the Bill which was unanimously recommended by the Report of the Select Committee to which it was referred last year. That Committee made certain recommendations which were accepted and adopted by the House. From the Bill as drafted to-day there are certain omissions which do not touch the main principle of the Bill at all and to which I shall refer later on. I am not going to weary your Lordships to-day with a recital of the very lengthy arguments which were used in the many discussions that took place on the Bill last year, but may I deal with some of the more serious points which arise today?
The first point is this: the necessity for the Bill. The reason why this Bill is, as I think, absolutely necessary is this. It was conclusively proved during the course 926 of the debates in this House and by the evidence which came before the Select Committee that under the present law pedestrians and pedal cyclists in many cases obtain wholly inadequate compensation. May I quote the words of Lord Iveagh who was Chairman of the Select Committee? Speaking in this House on the 18th of July last year, after the Select Committee had reported, the noble Earl said:…. we had overwhelming evidence of great hardship, in many cases amounting to injustice in the ordinary common-sense. meaning of the word.The noble Earl is not a person who ia generally inclined to indulge in exaggerated expressions, but that was, his view after hearing all the evidence put before us, and if any one wishes to read the statement he will find it in the OFFICIAL REPORT, Volume 88, column 880.
May I mention two of the main reasons why under the existing law pedestrians and pedal cyclists are unable to obtain adequate compensation? One reason is this, that they very seldom can get adequate evidence. If a pedal cyclist is killed he is not there to give evidence; if he is seriously injured it is quite impossible for him to give complete or satisfactory evidence of the circumstances in which he was injured. That is one reason. The other reason is that the pedestrian or pedal cyclist is generally a poor person, and he is quite unable to fight the rich insurance company which is always behind the motorist. If that be the necessity, as I think, for this Bill, may I now suggest what the main purpose of the Bill is and how the object is sought to be attained? I do not to-day propose to go into the question of the total number of these appalling accidents, of people killed and injured on the road, but I may mention one fact which struck me as really appalling. Between 1926 and 1033 there were no fewer than 50,837 people killed on the road and very nearly 1,500,000 people injured.
What I propose to do to-day is to deal very shortly with the figures for pedestrians and pedal cyclists. This year the necessity for the Bill is not less but greater than it was last year, when your Lordships were pleased to give it your favourable consideration. I find, as regards pedestrians and pedal cyclists, that whereas in 1932 there were 4,431 927 killed on the road, in 1933 the number went up to 4,858; and whereas in 1932 125,000 odd persons were injured, in 1933 that number went up to 135,000. In the case of deaths alone something about two-thirds-67 per cent. to be quite accurate—were cases of children under ten or of men over sixty. Your Lordships will find these facts set out in the Return made by the Minister of Transport for the first half of the year 1933. It can be said with truth that many of the cases of these pedestrians and pedal cyclists killed or injured suffered through their own negligence. That is quite true, but it is undoubtedly equalled by the fact that an immense number of them suffered through no fault of their own whatsoever.
It is not suggested to-day—it has never been suggested in connection with this Bill—that it will materially reduce the number of accidents on the road. That matter is being dealt with in a Bill which has been introduced by the Government in another place. The object of this Bill is to provide compensation, and it is an undoubted fact that the greater the number of persons killed or injured, the greater the necessity, the absolute necessity, for further compensation being found. The principle on which this Bill is founded is that the injured party is not bound to prove negligence on the part of the motorist before launching his claim. That has been shortly, and not quite accurately described, I am afraid, as shifting the onus of proof. This is fundamental to the Bill, and as there have been difficulties felt about this fundamental principle by members—though not very many—of your Lordships' House and persons outside, perhaps your Lordships will allow me very shortly to quote some of the statements made in the course of discussion upon this point by persons of unquestioned authority.
My first quotation would be from the speech of the Lord Chancellor which he made when a similar Bill was brought in on the 2nd of June, 1932, and the quotation is to be found in Volume 84 of the OFFICIAL REPORT, column 552. The substance of his statement was that this was not a new principle in our law and that there were many cases in which a similar principle had been applied. This is what the noble and learned Viscount said:This is no new principle, but a principle which has been in our law for 928 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 he on the driver to establish some lawful defence.Discussions in this House turned far more largely upon what should be allowed than upon the general and fundamental principle to which I have referred, and which was agreed to by most speakers in your Lordships' House.
The other utterance of the Lord Chancellor was made on the 7th March, 1933 —your Lordships will find it in Volume 86, column 1066—and emphasised what he said the previous year. He then said: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.The noble and learned Viscount went on to say:Surely, it is only fair in those circumstances that the onus should he shifted.Your Lordships will perhaps pardon me for going a little further into this, because it is the fundamental principle of the Bill, and if anyone can prove that that fundamental principle is wrong the whole Bill drops. I asked your Lordships to say it is right, and your Lordships said so by a large majority, last Session.
May I quote a very short passage from an ex-Lord Chancellor whom we regret very much is not here to-day, I think owing to illness; I refer to the noble and learned Viscount, Lord Buckmaster. Speaking on March 7, 1933, Volume 86, column 1057, Lord Buckmaster said the reason why this Bill was necessary was thatby special legislation and special privilege people have become entitled to put upon the roads machines which they may drive at any pace to the public peril.I know that it is proposed in another place to limit the speed in a certain limited number of cases. Lord Buck-master went on: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.929 Then you have the further fact that this principle was unanimously agreed to by all the members of the Select Committee to whom your Lordships referred the question. The Committee was composed of people chosen from all Parties.
Then comes What is really an important fact, and it is this. As I read the speech of the noble Earl, Lord Plymouth, on the Second Reading of the Bill on the 7th March, 1933—this Will be found in Volume 86, column 1072—I find that Lord Plymouth said: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.That is the principle of this Bill. He goes on:I am quite prepared to go as far as that.That is a pretty definite statement.
§ THE PARLIAMENTARY UNDERSECRETARY OF STATE FOR THE COLONIES (THE EARL OF PLYMOUTH)
I do not think, if I may be allowed to intervene, that the noble Lord has really given the interpretation of the speech which I intended. All I intended to say was that I was prepared to go as far as to admit that that was the case in many European countries. I did not mean to convey that the Government themselves would be prepared to go as far as that.
§ LORD DANESFORT
I am sorry if I misunderstood the noble Earl. It is quite true that in other parts of the discussion he said he was not prepared to agree to all the details of the Bill, but I cannot find in any speech that he made, and he made several—I am not complaining, in fact I am very glad of it—that he said he objected to the fundamental principle of the Bill. If I am wrong in that of course I can be corrected. But that was not tire only passage in the noble Earl's speech of tlhe 7th March of last year that I want to draw your Lordships' attention to. He also said:There are questions which we must ask ourselves on which, I think, we should come to a considered opinion before we pass any legislation which will make fundamental changes in the 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 930 Viscount on the Woolsack said in that respect.I have told your Lordships what the noble and learned Viscount said, and I am extremely gratified to find that the noble Earl, Lord Plymouth, agrees with him. That is not quite all, because this so-called shifting of the onus has been adopted in motor legislation in no fewer than eleven out of thirteen Continental countries, and it has also been adopted in all or nearly all the provinces of Canada. That is the position as to onus.
May I tell your Lordships as shortly as I can what the history of this Bill is because it is rather significant. In 1932 I introduced a Bill upon the same fundamental principle but rather less favourable to motorists than the present one. It came on for Second Reading on the 2nd June, 1932, and was read a second time by a large majority in your Lordships' House—twenty-two to eight. The Government did not oppose or vote against me on the Bill, but suggested that I should not, go further with it that Session so as to give the Government time to consider the question. I acted on that suggestion and did not go further. Early in 1933 I reintroduced the Bill, slightly altered, with the same governing principle. That came on for Second Reading on the 7th March, 1933. On that occasion the Lord Chancellor made the statement which I have already quoted. He suggested that the motorist should have further defences than the Bill gave and the noble Earl, Lord Plymouth, for the Government, made the statement I have read. He supported the Second Reading but urged that the suggestion made by the noble Viscount, Lord Elibank, that the Bill should go to a Select Committee, should be agreed to, and to that the House agreed. That being so the Second Reading was carried by thirty-one to two, the Government not only supporting but voting for the Second Reading.
On the 22nd March of that year the Select Committee was appointed, consisting of seven persons with the noble Earl, Lord Iveagh, as Chairman. We sat nine days and heard twenty witnesses from the Ministry of Transport, the Ministry of Health, the Home Office, the Police, pedestrians, cyclists, motorists, and insurance companies; so that we got fair evidence from all quarters both from sup- 931 porters and from those not in favour of the Bill. In July the Select Committee unanimously reported and produced an amended Bill, adhering to the fundamental principles but altering—and I think for the better—some of the defences that were to be allowed to the motorist. That amended Bill came before your Lordships' House on July 18 last year and the noble Earl, Lord Plymouth, speaking for the Government, said he regarded the Report as a very valuable one which contributed largely to the solution of a difficult question. He promised to bring it before the notice of the Government. It is quite true that he did not commit himself to the details of it, but he did not condemn the fundamental principles.
On July 25 the Bill as amended passed through Committee with some slight alterations and on November 9 it came up on Report. Certain Amendments were moved arid were opposed and then an unfortunate event happened. An Amendment was defeated by twenty-five votes to two and unfortunately twenty-seven members do not constitute a quorum in your Lordships' House so the matter had to be adjourned. It was very late in the year and we were unable to finish the Bill. It had passed through all its critical stages and all that remained to be dealt with on Report and Third Reading were some relatively small points.
Before I come to the provisions of the Bill itself I should like to say one word as to cost. Insurance companies have been asked to what extent this Bill if it became law would increase the cost of premiums. The insurance offices have absolutely refused to give any estimate whatever as to cost. No doubt there may be some increase of cost, but there is no evidence to show that it would be large. I think it is only necessary to refer briefly to the provisions of the Bill. The seven clauses in the Bill are the same as those approved by the House last year with only one or two verbal alterations. Clause 1 says that a claim may be made by an injured person or his representatives, but certain defences are given to the motorist. The first is that if the injury was solely due to the negligence of the person injured the claim shall be wiped out. The second is that if there was contributory negligence on the part of the person injured, that shall not wholly defeat the claim, but, follow- 932 ing certain precedents set out in the Report of the Select Committee, damages should be reduced accordingly. The third defence is that if there was a third party responsible the motorist should be entitled to indemnity.
Clause 2 is a small one dealing with the case of the death of a child. It was put in on the suggestion of the noble and learned Viscount, Lord Buckmaster, so that persons responsible for the child should be reimbursed medical and funeral expenses. Clause 3 merely provides that the motorist shall insure against his liabilities under the Bill. Clause 4 is a definition clause and Clause 5 is a saving clause in reference to the recovery of damages apart from this Act, such as, for instance, under Lord Campbell's Act. Clause 6 deals with the application of the Bill to Scotland. Clause 7 was rather an important one in the last Bill. It provides that the measure shall not come into operation for six months after its passing so as to give insurance companies and others time to make proper provision. That is really the whole of the present Bill.
Certain clauses which were in the Bill of last year have been omitted and I think I ought to tell your Lordships in a few words why they are omitted. The first was known as the Hospital Clause. It was very favourably received in this House and was viewed so favourably by the Government that they inserted the whole clause in one of their own Bills which they passed last year. That is why the Hospital Clause is omitted from this Bill. There were two clauses in the Bill of last year which dealt with agreements between solicitor and client, when a solicitor wanted to make an agreement with his client as to what he should receive out of any damages that might be awarded, and what costs he should be entitled to Charge. Since last year the Law Society have very carefully considered these clauses and as I understand it, while they were anxious on the one hand to prohibit improper agreements made between solicitor and client, they were anxious on the other hand, and I think very rightly anxious, to preserve the right of a solicitor to make a proper and reasonable agreement with his client. They examined the clause for the purpose of seeing whether it could be amended so as to prohibit improper agreements while preserving the right of a 933 solicitor to make a proper agreement. They found it impossible to devise a method by which both those results could be obtained. In those circumstances we thought it right, in deference to the views of that exceedingly important body, the Law Society, which administers discipline in the profession with great discretion and satisfaction, to drop those two clauses. That is the case for the Bill and I beg to move that it be read a second time.
§ Moved, That the Bill be now read 2a.— (Lord Danesfort.)
§ LORD LAMINGTON
My Lords, the case for the Bill has been thoroughly covered by my noble friend Lord Danesfort, but as I was, I think, the first member of your Lordships' House to take up the question of the increasing number of motor accidents, I should like to say a few words. Last year the noble Earl, Lord Halsbury, opposed the Bill on the ground that it would reverse the law of tort in this country. The law of tort really does not operate in this case, it seems to me. The whole conditions of life have changed. Circumstances have altered, and you have this frightful number of accidents taking place and increasing year by year, and apparently no method of preventing their occurrence. Surely something must be done for those who are hurt and injured, and for the relatives of those who are killed. Unless you say that the individual pedestrian should insure himself, I see no remedy other than that a Bill of this character should be passed, to give some retribution to the unfortunate sufferers.
My noble friend Lord Danesfort will agree that it is not likely that this Bill will prevent accidents, but its purpose is to give some relief to those who suffer. The number of people who suffer is not likely to be lessened, judging by the opinion of the motoring world. In a paper called the World's Carriers, in a leading article on February 15, it is stated:Deaths on the road are, emphatically, remarkably small in percentage, and so long as the roads are used as they are, not only fur transport, but every conceivable purpose, neither education nor restrictive regulations, which cannot be completely enforced, are likely to result in any material reduction.It is not a very cheerful outlook for those who want to walk along the road or to cycle along the road, if we, are to look 934 forward to a still greater number of accidents in the future. As my noble friend said, last year there were 1,517 pedestrians killed, and those under fifteen year of age and over fifty-five years constituted 78 per cent. of the number killed in that appalling massacre. I am sure your Lordships will agree that some consolation, even if is only financial, should be given to those who are maimed and to those who have suffered the loss of their friends or relatives.
In a very notable speech recently made. by the ex-Minister of Transport, Sir John Pybus, at the meeting of the Phoenix insurance Company, he made the following remarks:The toll of fatality upon the highways is unfortunately still increasing, and it may not be out of place if I refer to the Report on fatal road accidents which has been issued by my successor at the Ministry of Transport. It contains a warning that the particulars given of estimated speeds of vehicles involved in accidents should be interpreted with caution, and points out that in nearly 68 per cent. of the cases analysed the pedestrian or pedal cyclist was dead or fatally injured and was, therefore, unable to give his version.That is a strong argument in favour of my contention that some provision ought to be made for the families of those who suffer death. He goes on, in a passage which is not quite so germane to the point with which I am now dealing:For the first time, however, we are in possession of reliable information concerning the circumstances in which accidents occurred; 70 per cent. of the accidents analysed occurred on straight roads or bends with a good sight line. Nearly two-thirds occurred in daylight or in clear weather with normal visibility; 60 per cent. happened on roads carrying only very light traffic at the time and only 3 percent. on densely trafficked roads.…No free people will long tolerate a state of affairs in which every waking hour a human life is lost; its amelioration is everybody's business. The Minister of Transport can rest assured that the great insurance undertakings of this country will continue to help him in his humane but supremely difficult task.I would draw special attention to what I am going to read now:Occasionally the tragedy on the road is intensified by the subsequent failure of the dependants to secure compensation under a third-party risk policy, and, as a result of one or two cases reported in the Press or in Parliament, the general public are prone to impute to the insurance companies a desire to evade liability on obscure legal points. In the case of our 935 own company and almost the entire majority of other insurance associations, a humane and generous attitude is invariably adopted, irrespective of the strict letter of the law.That is a very satisfactory statement to be made by the chairman of one of the most important insurance companies. I might say in this connection that the Irish Free State last year passed an Act in connection with road traffic which makes provision against those cases where insurance companies—presumably weak ones—have done their best to avoid paying compensation. In Ireland the money is paid to the insurer only when he has compensated the person injured. That is not a provision which I hope to see introduced into my noble friend's Bill, but it is one which the Government might secure in that other Road Traffic Bill with which they are now dealing in another place. I have now mentioned the two or three points which I wanted to make. I am very glad indeed that my noble friend has perservered with this Bill and I trust that it will be passed unanimously by your Lordships' House.
§ EARL HOWE
My Lords, I desire on behalf of the motoring element in the community to offer the most vigorous protest that I possibly can against the Bill which has been introduced into your Lordships' House this afternoon. I wish to protest not so much against the details as against the whole principle of the Bill. The noble Lord, Lord Danes-fort, in introducing the Bill said that it was one for non-motoring persons. In fact it is a Bill to single out one class of road user from all others and to place upon him the whole responsibility for the accident, if an accident happens, even though he was in no way to blame. I see that there is a clause in the Bill which perhaps waters it down a little; it is the proviso in subsection (1) of Clause 1 wherein it says that the amount of negligence on the part of the injured person may be taken into account in assessing the damages. None the less the motor driver—one section of road users—is held to be entirely responsible for an accident caused very likely by no fault of his own.
I will give your Lordships an instance of a case which occurred, I understand, to a member of your Lordships' House only so recently as yesterday. I believe that the noble Earl, Lord Lonsdale, when 936 going down to the Derby had an unfortunate experience in his motor car. I read in the newspapers that owing to another car swerving to avoid a cyclist his Lordship's car went into the ditch. His Lordship was fortunately not hurt, and I am sure we all congratulate him and are very glad to hear that he did not suffer any injury. Nothing very much is said about the cyclist, but supposing that by any chance the cyclist had been knocked over, it might have been due entirely to the fault of the cyclist, but notwithstanding that, he would have been able to claim either against the noble Earl, Lord Lonsdale, or against the driver of the other car, although it was in no sense their fault.
§ LORD DANESFORT
There is an express provision in the Bill which says that if the accident is due entirely to the fault of the cyclist he cannot recover anything; the motorist is free.
§ EARL HOWE
As long as the Bill singles out one section of the community, as I understand it does when I read the first page of the Bill and as I gathered when I listened to the discussions on the same measure in former Sessions—as long as it contains a clause to the effect thatdamages shall be recoverable from the motor vehicle in respect thereof without proof of negligence or intention or other cause of action as though the injury had been caused by his wilful act, neglect or default….I shall contend that it is an intolerable injustice to one section of road users.
§ EARL HOWE
There then occur the words to which I have already drawn your Lordships' attention. With regard to the speeches which have been made in support of the Bill, I listened to Lord Danesfort and to Lord Lamington. Both of them referred to the deplorable casualty roll, and to the deplorable number of accidents which take place on the roads to-day, which every section of our people, whether in a motor car or on foot, or in whatever capacity they use the roads, equally deplore. We all want to find a way out of the trouble, and I say without hesitation that we shall never find a way out of our troubles on the highways unless we lay down in legisla- 937 tion that there must be equal responsibility all round. One must be able to bring home to every road user the consequences of his action. Lord Danesfort and Lord Lamington both cited casualties, but they have not told your Lordships in how many of those cases the injured parties failed to secure compensation under the existing law. The noble Lord, Lord Danesfort, desires in this Bill to amend the existing law and to put the blame on the driver of the motor car, or, to put it in another way, to transfer the onus of proof of negligence.
The fact remains that you are trying to place one section of road users in a privileged position as compared with others, and what I hope and pray for is that the Government will finally lay it down that everybody who uses the road is responsible, individually and severally, for his acts. To-day you will see pedestrians take the most absurd risks. You will see them neglect to use the refuges and crossing places and entirely ignore the traffic signals. Compare what happens in Germany and other countries. I happened to be in Berlin the other day and I saw pedestrians being stopped in large numbers for ignoring the traffic lights. In this country pedestrians ignore both Police and traffic signals. They sail out into the middle of the traffic, and if a pedestrian gets knocked over the only thing which happens is that he may be held guilty of contributory negligence and fail in his action for compensation; but there is no responsibility upon him, although other people may lose their lives or be endangered. I beg to offer the most energetic and vigorous protest that I can against this Bill. I think it will have a bad effect on the mentality of certain sections of road users who already fail altogether to realise their responsibility. I think it will destroy the sort of co-operation that we really must get if we are to do something in the public interest to save life on the highways.
As to what effect the Bill will have upon insurance premiums, neither of the noble Lords who have spoken in support, of the Bill has been able to give us any sort of idea. The humble, or perhaps I might say noisy, motor-cycle, as well as the motor on four wheels may be in question. These may be called the vehicles of the people, because the motor is no 938 longer a sign of wealth, as perhaps it used to be considered. It is owned by large numbers of wage earners, and if the passage of this Bill has the effect of increasing insurance premiums—and there is no guarantee against that—then I think it would open up a very serious question indeed. There will be vigorous protests from owners, and the Bill will deal a serious blow at a great industry which has done a great, deal in difficult years to maintain the modicum of prosperity which has been attained in this country. I therefore move as an Amendment that this Bill be read a second time this day six months.
Leave out ("now") and at the end of the Motion insert ("this day six months"). —(Earl Howe.)
§ THE EARL OF IVEAGH
My Lords, I hope you will not adopt the Amendment, because I think it will be a very sad thing if your Lordships come to the conclusion that this Bill should not go forward with your endorsement. The members of the Select Committee spent very many hours on this question, and I am afraid I cannot remember all the evidence although I can carry it in my hands. A great deal of it was conflicting, but I am convinced in my own mind that there is a great deal of injustice being done to the inhabitants of this country under the existing law, because it is almost inevitable that the individual who is hurt—obviously if he is killed he cannot give any evidence—is in a less good postion to remember what happened than the driver of the motor car, who, we will presume, is not hurt. I was convinced that there was a very considerable grievance in the community, because, as the law at present stands, the individual hurt has to take action in Court, supported no doubt by solicitors and all the paraphernalia of the law, and if he is a pedestrian he has to prove negligence on the part of the driver. If he is a motorist no doubt he will be insured himself.
The arguments which have just been placed before your Lordships would lead us to this conclusion, if carried into effect, that everybody who goes on the road, whether man, woman, child or dog, ought to insure, so as to be able to be responsible for whatever accident he, she 939 or it may cause. I do not think it is within the province of your Lordships' House to put such a burden on the whole community. I dare say the Government might find some way out of the difficulty, but that is not within our province, nor do I think the Government are likely to take this burden upon themselves. I do not think the suggestion made is one which we as a Select Committee could have considered. That not being possible we still had to face the fact that there was a large number of individuals who had been hurt through no fault of their own and who could not prove negligence on the part of the driver of the car which hurt them, not necessarily because the motor car had not been negligent. We had to consider how on earth we could get some proper compensation for those individuals.
It seemed to me, and I think also to my colleagues, that the only possible way was to assume that the motor car had been negligent, and then let the Court protect the motor car owner from that assumption. The individual who was hurt would therefore have always a possible action against the motorist. This sounds as though we would increase the volume of burden on the insurance company very considerably, but we were assured that there was a very large portion of the population always looking out for motor accidents, who went to the individual who had been hurt and said: "Leave it in my hands, and I will get you what I can out of the company that has insured the car which caused this accident." We were assured that a great many actions were brought in this way. It seemed to me that. it was a very undesirable state of affairs that a person should arrive at the bedside of someone who was ill in consequence of an accident and persuade him to take an action, though possibly he could not produce any real evidence of what had happened, in order to try to compel the insurance company to give some compensation.
For my part I was very much impressed by certain arguments placed before me by someone, I think called the Controller of the Metropolitan Police, who looked after all the people who were in trouble from accidents. He also had under his supervision a very 940 large fleet of cars in the Police service. He pointed out to me—and I drive a motor car myself pretty considerably—that if an accident occurs it is extraordinarily difficult to know what has happened. The thing is over in a flash. You did not think it was going to happen. He gave us an example of most conflicting evidence, which he was sure had been given in perfect good faith, and he argued therefore that it really was almost impossible to get reliable evidence of what actually happened and who was to blame.
That influenced me a great deal in my belief that the only way was to assume that one party, obviously the one that can be insured, was at fault. I quite agree that logically you ought all to be insured and then this trouble would not occur, but it is almost impossible to imagine such a state of affairs; therefore you must assume that a certain individual has been at fault—the one that can be insured. The community decided some years ago that everybody who owned a motor car should insure against third-party risk, and it seems to me very extraordinary that in doing so it never took any precaution to see how compulsory insurance, which it put on the motorist, was really working, what it really did, and whether it did what was wanted, which was that anybody who was hurt by a motor car would really get his proper compensation if he had received injury through no fault of his own.
That is what I should have thought, but I have found since I have been Chairman of this Committee that it is by no means that. Anybody can get compensation who can prove that the driver was negligent. But because somebody else causes the car to swerve that rules out the car and the insurance of the car. He cannot recover from the cyclist on the other side of the road which caused the car to swerve into the ditch because the cyclist is not insured. I presume that the noble Earl, like all of us, is insured for himself and his car, so that is all right. But the individuals who are hurt through no fault of their own and who have great difficulty in knowing whether they are entitled to bring an action are, it seems to me, distinctly to be pitied, and it also seemed to members of the Committee that some time ago the community must have intended that these people should receive compensation. We could devise nothing 941 better than the provisions which we reported last autumn, and the main provisions of which stand in the Bill which has now been introduced. It seems to me that we have no alternative but to ask your Lordships to give this Bill a Second Reading, and, I hope, a Third Reading too. Let us hope that some day it may be passed and that the Government will not be adamant about time.
THE CHAIRMAN OF COMMITTEES (THE EARL OF ONSLOW)
May I ask a question of the noble Lord, Lord Danes-fort? The noble Earl, Lord Howe, said that the Bill would, make the motorist, even when entirely innocent, responsible for compensation to an injured person. May I draw attention to the two lines of Clause 1 (1) where it says that damages shall be recoverable for an accident without proof of negligence "except where the injury was solely due to the negligence of the injured person." Therefore if the injured person was the guilty party then he does not get compensation. If he is contributory to the negligence, if there is dual negligence, then the pedestrian will only get half of the compensation. Am I correct in understanding the Bill in that form?
§ LORD DANESFORT
Perfectly correct. The two lines of Clause 1 to which the noble Earl referred distinctly provide that where the accident was solely due to the injured party, the motorist does not pay a farthing.
§ THE EARL OF PLYMOUTH
My Lords, perhaps I may be allowed to state what the position of the Government is in relation to this Bill. The main feature of this Bill is that where fatal injury to a person is caused or arises out of a motor accident, or rather the use of a motor vehicle on a road, damages shall be recoverable from the owner of that vehicle "except where the injury was solely due to the negligence of the injured person." I am afraid, in view of the speeches which have been made, it is necessary for me to refer quite shortly to the history of this Bill. It was introduced originally in April, 1932, and an amended form of that Bill eventually received a Second Reading in your Lordships' House in June of that year by 22 votes to 8. On that occasion the Government abstained from voting, and the Bill made no further progress that Session.
942 Then a slightly revised Bill was introduced, again by the noble Lord, Lord Danesfort, in February of last year, and that received a Second Reading by 31 votes to 2. On that occasion it is true that the Government supported the Second Reading, but they did so with a specific object in view, and that was that it should be referred to a Select Committee for examination. I confess quite freely that I did, on the Second Reading of the Bill, express sympathy with some of its objects and some of its provisions, but I made it perfectly clear that the Government were not committed to the Bill in principle or in detail. Indeed, I was not in a position to commit the Government definitely, either to principle or to detail, because the Government had not at that time come to any definite decision. That Bill was referred to the Select Committee of which Lord Iveagh acted as Chairman. The Committee examined the Bill very carefully, and I should like once again to acknowledge the very thorough and conscientious way in which they carried out their work. They reported to the House and said that the Committee were in favour of a change in the law in the direction of the provisions of the Bill which had been submitted to them, but they modified the arrangement of the Bill and made certain Amendments to it.
These Amendments included, firstly, one to enable the medical and funeral expenses of a child killed in a road accident to be recoverable; secondly, one to amend Section 36 of the Road Traffic Act, 1930, and enable hospitals to recover £50 in respect of patients to whom treatment has been given; and, thirdly, one to prevent certain abuses such as ambulance chasing on behalf of speculative solicitors. Later on further debates were held on the various stages of this Bill, during which additional Amendments were made, but eventually, as my noble friend Lord Danesfort has told your Lordships, he withdrew the Bill while saying that he intended to reintroduce it in another Session.
I should like to refer for a moment to the main principle of the Bill. It has been argued that the principle that the driver of a motor vehicle is prima facie responsible for any accident in which he may be involved has been adopted in most European countries. I admit that that as a general statement may be looked upon 943 as true, but the position really varies very greatly between one country and another and no exact comparison is therefore possible. I do not want to weary your Lordships with a repetition of information which has been given to the House on a number of occasions before, but I would like to say this, that if the position in other countries in this respect were carefully examined it would be found that in nearly every instance there exist additional provisions and circumstances which must lead one to modify very greatly the somewhat sweeping generalisation which has been made on this subject.
I am not going to argue, and I have never argued during the course of these discussions, that the present position is entirely satisfactory. It is perfectly evident that it is not, but there are one or two considerations in connection with the Bill before your Lordships to which I feel bound to draw your Lordships' attention. To begin with we have had reference once again this afternoon to the question of accidents upon the road. As the noble Earl, Lord Howe, has said, it is quite clear that this Bill is not going to have the slightest effect in reducing the number of accidents upon the road. In fact, I think that if there is a tendency of any kind it would probably be in the opposite direction, for, by making it immaterial whether the motorist is negligent or not, the Bill might very well produce an undesirable state of mind in certain motorists. The very fact that a motorist is cast in damages as the result of an accident will no longer imply that he has been found to be negligent, and the force of the existing deterrent to reckless behaviour may in the result be considerably weakened.
Then again, it would certainly lead to some increase in insurance premiums. It is quite true we have not been told —no one has offered any definite suggestion—as to what that increase might be, but I think it is generally accepted, and was accepted by the Select Committee, that some increase would undoubtedly take place if the provisions of this Bill were put into operation. Another difficulty, a very important difficulty, in connection with the Bill, is that it involves a serious departure from the Common Law principle that in order to obtain damages an injured person must prove negligence on the part of the defendant.
944 I am well aware, as I have already said, that I have during the course of these discussions admitted that very strong arguments can be adduced in favour of shifting the onus of proof to the defendant in such cases. There are undoubtedly precedents in this country in other connections and there are precedents in other countries in this particular connection, though admittedly the circumstances in other countries differ considerably from the circumstances here at home.
But I must say that a departure of this kind from the generally accepted principles of our law cannot lightly be undertaken, and I must therefore point out to your Lordships certain other features in connection with this Bill that are very pertinent to our discussions. In the first place the Bill does not merely put upon the motorist the onus of proving that he was not to blame; it goes a very great deal further than that. If no one at all is to blame the motorist is, notwithstanding, to be held liable in damages to the third party, and where there is contributory negligence that no longer affords a ground of defence, although I agree it can be urged as a factor to be taken into account in the assessment of the damages to be paid. We must also remember that in its endeavour to make the position of the injured party as easy as possible this Bill has been forced to the expedient of throwing the responsibility, not on the driver of the vehicle, but on the owner of the vehicle. In some cases this might be a reasonable thing to do, but in others the owner might be in no sense legally responsible for the acts of the driver of the vehicle, and unless the driver had been negligent the owner would have no claim to indemnify himself against any claim in respect of injury. All these points are very relevant to our present discussions.
The Government have given the most careful consideration to the Bill and to its predecessor and to the Report of the Select Committee, but they have come to the definite conclusion that they cannot support this Bill or afford any facility for its further progress. Indeed it is, I think, perfectly obvious that at this stage of the Session it would not be possible in any circumstances to find time for its passage through another place. This Bill makes a proposal which, 945 while aimed at removing one kind of hardship, creates another, and it will impose upon careful motorists, in circumstances in which they are quite innocent of blame or responsibility, the liability to pay damages merely because they have had the misfortune to be involved in an accident. I need hardly say that it is for Parliament to balance the hardships or the grievances on the one side against the hardships and the question of principle on the other, but I must repeat that, for their part, the Government cannot give any support to this particular measure.
There are just a few words more I want to say. The Government have not been unsympathetic to those injured or affected by road accidents. The Hospital Clause, which has been referred to during the course of this debate and which was previously included in the Bill now before your Lordships, was incorporated in the Government's Road and Rail Traffic Act last year, and is now actually in operation. Then the Law Reform (Miscellaneous Provisions) Bill, which was framed as the result of the Committee appointed by the noble and learned Viscount, the Lord Chancellor, has passed through the House of Lords and will no doubt receive the Royal Assent before the end of the summer. One of the provisions of this Bill will remove what was a very real grievance arising out of the maxim Actio personalis moritur cum persona. Again, there are certain proposals for strengthening Part II of the Act of 1930, in the direction of giving further protection to injured third parties, which are now before Parliament in the Road Traffic Bill of the present Session. In those circumstances I maintain that it cannot fairly be said that the Government have turned a deaf ear to the cause of those injured or affected by road accidents.
I should like to mention one point in conclusion which seems to have escaped the notice of the noble Lord who introduced this Bill, and it is this. As he has told the House, the Bill in its previous form gave effect to the recommendations of the Select Committee for dealing with certain abuses arising out of the activities of speculative solicitors. For reasons which the noble Lord has given this afternoon he has dropped this clause, but he has not gone far enough in his 946 deletion. Clause 6 (b), if he looks at it, still contains the Scottish adaptations required by the clause which he has dropped.
§ EARL BUXTON
My Lords, I have listened with some surprise to the speech of the noble Earl representing the Government. All of us who take an interest in this question, had thought, after the consideration which this Bill has received in your Lordships' House on more than one occasion, and after it has been before a Select Committee which was unanimous in its recommendations, that we should not have had from the Government a non possumus attitude. The noble Earl has made some comments in regard to Amendments of the Bill, but if it is desired no doubt further Amendments could be made to meet any objections that there may be. The noble Earl's main objection to the Bill, as I understand, is this, that it does alter in a way the onus of proof, shifting it from the pedestrian to the motorist. That, he says, is a change of the law. But, after all, the law is made to be changed when it is found that the law leads to inequality and injustice. We have listened to the appalling figures of injuries and deaths, and most of them are undoubtedly due to the fault not of the pedestrian but of the motorist, and I think it is time to consider whether under those circumstances the law ought not to be altered when it is shown that at present it is grossly unjust.
The noble Earl, Lord Howe, referred, I think, to the increase in the insurance premium to be paid by the motorist which would be involved. What does that mean? Surely, the argument that an additional premium would have to be paid is an argument for the Bill. What it means is that the burden of paying compensation for these injuries is to be removed from the shoulders of the pedestrian and placed on those of the motorist where in any case it is shown that the pedestrian is injured by the action of the motorist. To my mind that is an argument in favour of the Bill and not against it. The mere fact that it may raise the premium and to a certain extent injure the motor trade is surely an argument which ought not to weigh with your Lordships in a matter of this kind. I hope that my noble friend, in spite of the Government's attitude, will go to a Divi- 947 sion. It is true that the Bill on this occasion has not much chance of succeeding because we are near the end of the Session, but my noble friend is persistent, and he has carried his Bill through successfully on previous occasions, and he may do so again. I hope the Government in further considering the matter, as the noble Earl said that they would further consider it, will come to the conclusion to which the Select Committee came. When that Committee was first formed some of its members did not think a Bill on this subject would be successful, but in the end they were unanimous in their view, and I regret very much that the Government cannot see their way to go further than has been stated by the noble Earl.
§ LORD DANESFORT
My Lords, I confess I have been very greatly surprised by the action which the Government have taken on the Second Reading, and before I go further I should like to ask the noble Earl who speaks for the Government whether he will leave this to a free vote of the House. If he feels a difficulty himself in supporting this Bill, will he leave it to noble Lords who have already voted for it several times to enable them to be consistent and vote for it again, or would he urge his followers in this House to vote against it? If the noble Earl would kindly answer that it would probably shorten the discussion.
§ THE EARL OF PLYMOUTH
I do not know what the noble Lord is referring to. He talks about supporting this Bill. As I have pointed out before, the Government on the Second Reading voted in favour of it with the specific object in view of sending it to a Select Committee.
§ LORD DANESFORT
My Lords, I realise that the noble Earl, Lord Plymouth, is entitled, if he thinks fit, to alter the views which he expressed on previous occasions, but the question I wanted to ask was: Will he leave it to a free vote of the House? The position is this. The House has already by large majorities, not once but several times. 948 approved of this Bill, and voted for it, and in that majority, not once but several times, the Government themselves supported the Bill and voted for it. The only passage in which I can find there was a sort of guarded word by the noble Earl is one spoken on July 18, 1933. When the noble Earl, Lord Buxton, said that the noble Earl had given his blessing to the Bill as a whole and that as far as the Government were concerned they were in favour of the proposals now contained in the measure, the noble Earl, Lord Plymouth, intervened and said:I did not commit myself to every detail.I have already pointed out that they have voted for it not once but several times. They voted for it in March, 1933, when they sent it to a Select Committee. Then when it came back with the recommendations of the Select Committee, which the House adopted, the Government supported those recommendations and voted for them, and amongst those recommendations was the proposal which we call shifting the onus. Now, for the first time in all these two years, or rather more, the Government say they cannot support the Bill.
§ THE EARL OF PLYMOUTH
We did not support the recommendations of the Select Committee but at that time I made it perfectly clear in the debate that in my opinion it would be better that the Bill should go forward substantially in the form that the Select Committee recommended, so that the Government could at the same time examine the report of the Select Committee and the Bill as it left that Committee.
§ LORD DANESFORT
The last thing in the world I should desire would be to misrepresent the noble Earl. I merely stated the fact that the Bill came from the Select Committee with Amendments and that the Government supported them. In view of that it is very strange that they now say that they cannot support the Bill. Everyone is entitled to vote as he thinks best, but I trust that the rest of the members of the Government 949 will feel themselves in a position to act consistently and to vote as they have voted formerly. In any case I hope that the noble Earl will allow his followers, those who act under his suggestion, to vote as they voted last year time after time. I would ask them not to stultify themselves now by saying that their previous votes were wrong and that they must Vote exactly to the contrary. I hope the noble Earl will not use any influence he has to get his followers to take that course.
The only other comment I would make is on the speech of the noble Earl, Lord Howe. If I may say so, he always makes an admirable speech, but I hope he will forgive me for saying that his speech to-day was in substance practically the same speech that he made last year, and that the House then voted against his recommendation. I gathered from his speech that he would like to see every one insured—not only the motorist, but the poor pedestrian and the pedal cyclist who goes to work every day on his bicycle because it is cheap and he has no other means of transport. All these people should be insured and be prepared to pay if they cause damage.
§ Resolved in the affirmative, and Amendment disagreed to accordingly.950
§ Earl's speech. If he says he did not mean that, I accept his statement. I understood that his recommendation was that every person should be responsible for every injury which he caused, and if that is so I should have thought it necessary for them all to insure. However, if the noble Earl says that is not his intention I accept his statement. There is one other point in his speech to which I wish to refer. He said that I did not give any estimate of what would be the increase in insurance premiums. It is not for me to do that. The insurance companies have been asked from time to time, but they could not give any estimate and there the matter stands.
§ I ask your Lordships most earnestly not to go back upon the decision reached last year after long and careful discussion. Why should you? Your Lordships' House decided by considerable majorities up to the very last moment, just before the Bill was stopped at the close of the Session, that the Bill was a right one. Surely your Lordships will not now stultify yourselves by saying, although no new facts have been discovered and no new arguments brought forward, that you were then wrong. I ask your Lordships to adhere to your former opinion and to give the same decision as last time.
§ On Question, Whether the word "now" shall stand part of the Motion?
§ Their Lordships divided:—Contents, 19; Not-Contents, 14.949
|Aberdeen and Temair, M.||Exmouth, V.||Lamington, L. [Teller.]|
|Bathurst, E||Clwyd, L.||Newton, L.|
|Buxton, E.||Danesfort, L. [Teller.]||Rankeillour, L.|
|Iveagh, E.||Daryngton, L.||Rennell, L.|
|Onslow, E.||Dunleath, L.||Rhayader, L.|
|Howard of Glossop, L.||St. Levan, L.|
|De La Warr, E.||Bertie of Thame, V. [Teller.]||Lawrence, L.|
|Howe, E. [Teller.]||Hailsham, V.||Marley, L.|
|Lucan, E.||Rochester, L.|
|Plymouth, E.||Cranworth, L.||Stonehaven, L.|
|Stanhope, E.||Denman, L.||Templemore, L.|
§ On Question, Bill read 2ª, and committed to a Committee of the Whole House.