HL Deb 14 May 1934 vol 92 cc332-8

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF ONSLOW in the Chair.]

Clause 1:

Effect of death on certain causes of action.

(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person:—

  1. (b) shall not include any sum in respect of the mental or bodily suffering of that person before his death;
  2. (d) where the death of that person has been caused by the act or omission which gives rise to the cause of action, may include a sum in respect of funeral expenses but, save as aforesaid, shall he calculated without reference to any loss or gain caused to the estate by his death.

(4) Where a person dies in the interval elapsing between a wrongful act or omission and the suffering of damage by another person by reason of that act or omission, there shall be deemed for the purposes of this Act to have been in existence before his death such cause of action against him, if any, as would have existed if his death had occurred after the suffering of the damage.

THE LORD CHANCELLOR (VISCOUNT SANKEY) moved to leave out paragraph (b) of subsection (2). The noble and learned Viscount said: All these Amendments are of a very technical character and are little more than drafting alterations to make the legislation clear. The Government are much indebted to the gentlemen who have drawn attention to these matters, and I should like to express our obligation to the noble and learned Lord, Lord Wright, for the great help he has given in assisting to draft the new clauses. The first Amendment is in Clause 1, page 1, and it is proposed to leave out lines 17 to 19. The effect of paragraph (b) is that where the plaintiff dies the damages recoverable against the wrongdoer are not to include any sum in respect of the mental or bodily suffering of the deceased plaintiff. But under paragraph (d) of the same subsection the damages are also to be calculated without reference to any loss or gain caused to the estate by the death. The latter provision is essential to exclude such considerations as the benefit to the estate by insurance policy moneys becoming payable in consequence of the death. The reason for the Amendments is this. Supposing, for example, a celebrated surgeon has been killed. It is very difficult to calculate what the loss would be in his case supposing he were an operating surgeon. The combined result of the two paragraphs would be that no damages are recoverable at all except out-of-pocket expenses incurred before death and, by express provision, funeral expenses. The result of this will be to give adequate damages in the case of death.

Amendment moved— Page 1, leave out lines 17 to 19.—(The Lord Chancellor.)

LORD DANESFORT

May I suggest to the noble and learned Viscount that his proposed Amendment rather unduly limits the amount of damages which may be recovered? May I take an illustration? Supposing a man is killed by a motorist, and he has a good claim against the motorist. The man dies. What are his dependants entitled to recover from the motorist? Does not the clause say that the damages are to be calculated without reference to any loss or gain caused to the estate by his death. What does that mean? Supposing the man is in an important professional or other position, and is earning large sums. His death means that his estate loses those large prospective sums which he would have earned if he had not died. I want the noble and learned Viscount to explain what would happen in a case like that. Would not his representatives be entitled to something in respect of the loss to his estate which his death caused? It might be very considerable, or it might not be, but perhaps the noble and learned Viscount will explain to the Committee what the effect of this clause would be on a case like that.

LORD WRIGHT

May I say a few words in reference to what my noble friend has said? The noble Lord, I think, is overlooking the fact that the dependants in such a case as he puts have claims under Lord Campbell's Act. Those claims are preserved by this Bill, and will be preserved by the Act. The result therefore is that if the surgeon leave a widow or children or others who, if he were alive, would be dependent on his earnings, and were maintained out of his earnings, then the prospective benefits will receive full and adequate consideration and satisfaction under Lord Campbell's Act.

The difficulty which the Committee, and I speak as a member, had to face was this, that it is almost impossible to determine what would have been the loss to the estate in such a case as the noble Lord has put, of a surgeon being killed in an accident, by trying to calculate what the position would have been if the surgeon had lived. The man would have been expending money for his own purposes. He might have expended everything that he earned, in any way which was convenient to him. In those circumstances it seemed impossible to equate the position in the case of death with the ordinary position of a personal injury case, and it was found impossible to produce any formula which would be a satisfactory direction to the jury in such a case. Of course the real answer to this suggestion is that the rights under Lord Campbell's Act would be fully operative in such a case, and would give adequate compensation.

LORD DANESFORT

Might I suggest to the noble and learned Lord that the claimant might not want to go under Lord Campbell's Act, but might want to go under this Act? If he goes under this measure he gets nothing for the loss of prospective income. If he goes under Lord Campbell's Act would not the same difficulty of calculation arise? Personally, I do not see that any serious difficulty would arise, because the jury would be able to make a fair estimate of what the loss to the estate of prospective earnings amounted to. It seems rather hard, because there may be a possible difficulty in assessing the damages, that people in such a case should be deprived of damages altogether.

LORD HANWORTH

My Lords, I hope the noble Lord will not take that view. These arc matters which have been most carefully considered by the Committee. It is introducing a novelty into the law, and abolishing a principle under which there would be no action surviving, and nobody who has not given continuous attention to the problems involved can speak with any authority. I may say that the Committee who have been dealing with this have been considering it for weeks, and parsing every single word. It is important that every word should be parsed and considered in making an alteration of this sort. It is not a matter on which you can bring a fresh mind, in the course of the last few minutes. to bear. Those who are acquainted with the ramifications of this subject have been very careful indeed to chose accurate and precise words in reference to an alteration which may go much further than is at first sight supposed and certainly intended. In those circumstances I do hope that the Lord Chancellor will adhere to his words, and that he will not feel embarrassed by a criticism which cannot, if the noble Lord will forgive my saying so, have had the same close scrutiny that has been given to this matter by the Committee.

THE LORD CHANCELLOR

In reply to the noble Lord, it is perfectly true to say that this legislation is going to introduce a new form of action altogether, and it is just as well when you are introducing a new form of action to be very careful to see that it does not go too far. I am quite sure the noble Lord will say, "One step enough for me." Later on when we have passed the legislation, if his laudable anxiety to enhance the amount of damages becomes nearly a public necessity it will be time enough to do it then. But it will be just as well at present, when we are introducing this novel legislation, to be very careful before we commit ourselves to a very large and extended form of damages.

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved, in paragraph (d) of subsection (2), to leave out all words after "action" and insert "shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included." The noble and learned Viscount said: This is really a drafting Amendment. The objection to the existing draft is that it raises a doubt whether medical and hospital expenses before the death may be included in the damages or not. Strictly speaking, this doubt is unjustifiable because such expenses are not caused by the death but by the accident. The Amendment puts this right by using the words, "consequent on his death," instead of "caused by his death," and by putting the exception about funeral expenses last.

Amendment moved— Page 2, line 3, leave out from ("action") to the end of line 6 and insert the said new words.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved to leave out subsection (4) and insert: (4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Act, to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.

The noble and learned Viscount said: This is another drafting Amendment, merely with the object of making the legislation clear, but it is to meet a point of substance. The subsection in the Bill is intended to meet the case where the order of events is (1) the act which causes the accident, (2) the death pf the driver (who would be the defendant or the de fendant's servant), and (3) the suffering of damage by the plaintiff. Here the cause of action does not arise till the damage is suffered, and it is only then that the act becomes wrongful ex post facto. It is pointed out that the last two events may be simultaneous, or so nearly so as to put a burden of proof upon the plaintiff which he could not discharge. The Amendment is intended to remove this difficulty, and does so.

Amendment moved— Page 2, line 14, leave out subsection (4) and insert the said new subsection.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved to insert after subsection (4): (5) The rights conferred by this Act for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Fatal Accident Acts, 1843 to 1908, or the Carriage by Air Act, 1932, and so much of this Act as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Acts as it applies in relation to other causes of action not expressly excepted from the operation of this Act.

The noble and learned Viscount said: The object of this Amendment—and it is a very technical matter—is to make clear the relation between a claim under the Bill by the representatives of a deceased person who would have been the plaintiff, and a claim by a dependant of the deceased person under the Fatal Accidents Acts. It is intended, that these remedies should be cumulative. The measure of damages is quite different, and there is no reason why they should not subsist together. The wrong-doer should be liable to pay some damages for the injury to the deceased person. This enures for the benefit of the estate. In addition the widow may—in spite of this addition to the estate—have suffered pecuniary damage owing to the death, or else she may not. If she has, her right under the Fatal Accidents Acts should be unaffected. This cannot be met merely by saying that the Fatal Accidents Acts shall not be affected, because in certain respects they will be affected. Where there is an accident caused by the negligence of a driver, in which both the driver and a passenger are killed, then under the present, law the passenger's dependants would lose their right under the Fatal Accidents Acts against the driver owing to the death of the driver, but by reason of the Bill they will have a right against the estate of the deceased driver.

Amendment moved— Page 2, line 21, at end insert the said subsection.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved to insert after subsection (4) the following new subsection: (6) Any liability in respect of a cause of action which by virtue of this section survives against the estate of a deceased person shall, if the estate is insolvent, be deemed to be a debt provable in the administration of the estate, notwithstanding that it is a demand in the nature of unliquidated damages arising otherwise than by a contract, promise or breach of trust.

The noble and learned Viscount said: The need for this Amendment arises he-cause a claim for unliquidated damages in tort is not provable in the administration of an insolvent estate. It seems, however, clearly desirable that it should be put on the same footing as the claim for unliquidated damages for breach of contract or breach of trust. In bankruptcy a person with such a claim can bring an action against the debtor, and if he gets judgment he can use it to found a second bankruptcy; and it sometimes pays him to do so. But in the administration of an insolvent estate the position is different. Under the law as it stands there could not be a claim for unliquidated damages in tort against the deceased person. Under the Bill there can he such a claim against his estate. It would, however, be useless for the claimant to bring an action, because when he had obtained judgment the judgment debt, being a debt which has accrued after the death, would not he provable. There is nothing analogous to a second bankruptcy because the deceased has died once for all and his insolvent estate must be wound up once for all. The claimant would, therefore, be without remedy, and this would in part defeat the object of the Bill.

Amendment moved— Page 2, after the words last inserted insert the said subsection.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Remaining clauses agreed to.