§ VISCOUNT CECIL OF CHELWOOD rose to ask His Majesty's Government whether they could state for the information of the public what remedy a person has who is injured by the negligent or improper driving of a car belonging to the armed forces of the Crown; and in what respect the remedy for injury so caused differs from that for an injury caused by the car of a non-official person; and to move for Papers.
§ The noble Viscount said: My Lords, the House will remember that a very short time ago—two or three weeks at the outside—we had a debate on the general question of road dangers. I do not propose to ask your Lordships again to consider that subject to-day, though I trust 912 we shall do so at no very distant date and try to do something more effective than we have been able to do so far in order to bring to an end this great scandal. I notice a letter in The Times this morning from the right reverend Prelate the Bishop of Winchester, who raised the question on the last occasion. In this letter he quotes, what indeed had already been published, the figures of killed and wounded on the roads in the month of February. We learn that there were 689 persons killed on the roads—considerably more than 20 persons a day. That is a 65 per cent. increase on what happened in February of last year. The right reverend Prelate calculates that, if the proportion of non-fatal accidents to fatal remains the same as it was in peace-time, some 250,000 persons were injured in 1940, and, of these, 7,000 were seriously injured.
§ I venture to say that these are horrible figures. It is the duty of everybody, and particularly of the Government, to take what steps they can by administrative action to diminish this shocking toll of deaths and injuries, and, if they have not got sufficient power, to come and ask for whatever power they are advised they need in order to carry out that duty. It was pointed out to me just now by one of my noble friends, who will forgive my quoting what he said, that in the very interesting and valuable speech which Lord Croft made to us yesterday he told us that during the whole campaign in Africa only 604 British subjects were killed.
§ THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR WAR (LORD CROFT)That was up to February 23.
§ VISCOUNT CECIL OF CHELWOODThey probably have not been very materially increased since then. That is to say, they were substantially less than were killed in one month on the roads of this country, and the other casualties amounted, I think, to 3,000 or something of that kind—a mere flea-bite compared to those injured on our roads. I think that these figures which, quite exceptionally, come at the same time, must give all of us very grave anxiety. My question deals only with a very small fraction of this very large and serious subject. It asks the Government what remedies 913 exist under the existing law against the driver of any Government vehicle, whether it is a military vehicle or a civilian vehicle. I do not need to develop the importance of that. Your Lordships will remember that it was raised on the last occasion we debated this matter. There was, I think, a little confusion, at any rate in my mind, as to what exactly the position was; and certainly there is considerable confusion out of doors. I do not pretend to your Lordships that whatever we may say about it will make a very great difference, but it may make some difference; at any rate it is right that the matter should be cleared up and definitely understood. I do not propose to make to your Lordships any lengthy speech. As I say, I am not dealing with the main question involved, but only this specific aspect of it. I venture, therefore, to ask my question and to move for Papers.
§ THE LORD CHANCELLORMy Lords, perhaps I may take upon myself at once to answer to the best of my ability on behalf of the Government the question which the noble Viscount has put upon the Paper. As he has just said, his question deals only with a corner of the broader subject, and it was natural that he should in his introductory remarks refer to the more general issue. We had terrible figures brought out recently by the right reverend Prelate the Bishop of Winchester and by other noble Lords when there was a general debate on road casualties, and to some extent they have been repeated to-day—terrible figures of actual casualties upon our own roads. I would only say on the general question that I am in sympathy with the object desired, and I am sure the Government above all do appreciate both the gravity and the urgency of the matter, though it is one very difficult, I apprehend, to control suddenly by any form of regulation.
The question which the noble Viscount asks is one of importance, and is one which can be answered quite definitely. I agree with him that, outside, there is a considerable measure of possible misunderstanding. There are undoubtedly a good many people in the country who imagine that there is some special privilege attaching to Government vehicles on the road, especially perhaps to vehicles belonging to the armed Forces; and they believe that if they do get injured owing 914 to the negligence of the driver of such vehicles, they might as well whistle for any compensation because they will not get it. That, however, is not the position at all. I have had the answer to the noble Viscount's question reduced to writing. I have taken care with it, and it has been submitted to all the Government Departments that might be involved, not only the War Office and the Admiralty and the Air Force, but also the Post Office, the Stationery Office and other Government Offices which are running public vehicles on the roads. I think it would be on every ground best that I should read openly and unashamedly the actual points which have been thus prepared, because it is of the first importance that I should not by some variation of phrase or inaccuracy create a false impression.
The answer to the noble Viscount's question is this. A member of the public injured by the negligent driving of a Service vehicle has the right to sue the driver of the vehicle and to obtain judgment against him for the damages which he has suffered. He has no right of action against the Crown, as, in law, the Crown is not liable for the torts of its servants. If, however, the driver of the Service vehicle was on duty at the time of the accident, it is, and has been for many years, the invariable practice of all Government Departments to provide the funds required to satisfy any judgment obtained against the driver. The injured person is thus enabled to recover in full the compensation to which he is entitled in respect of the injuries which he has suffered. A person injured by the negligence of the driver of a Service vehicle is therefore in no worse position than if the injury were caused by a non-official person, and may be in a better position by reason of the fact that the financial resources of the State are made available to meet his claim.
What I have stated applies to vehicles which are being driven on behalf of the Fighting Services, such as Army lorries, no less than to Post Office vans, or other Government vehicles connected with the Civil Departments. As a practical matter it is, of course, important in the case of an accident in which the driver may be thought to be at fault, to ask for his name and unit, and to note the number of the vehicle. The adoption of this precaution 915 will obviate any undue delay in the identification of the driver and the vehicle by the Department concerned if a claim should subsequently be made in respect of the accident. I believe that the practice of Government Departments in these matters is well known in the legal profession, but I am grateful to the noble Viscount for raising this question and for giving me the opportunity of making this practice more widely known to your Lordships and to the country.
That is the statement which I prepared, but perhaps I might just make one or two observations to illustrate what is undoubtedly the true position. The proposition that you cannot seek to get damages out of the Crown turns, of course, on the ancient legal maxim that the King can do no wrong. That has always been the law in this country, although, of course, you have your remedy if there is a breach of a contract with the Crown. You cannot allege that the Crown as the Crown has committed a wrong. I may say that there are lawyers who are well prepared to see that ancient rule altered, and it is not very many years ago that a Committee of reforming lawyers made a proposal that that should be changed, as, of course, it could be changed by Statute. It really embodies a formality, an ancient tradition based on perfectly good theory, but it is not essential to the working of our modern Constitution. That, however, was a course which was objected to in certain quarters, and the law is as I have stated it.
The noble Lord might perhaps be disposed to urge that it is more difficult to make good your remedy if you are knocked down and injured by a vehicle which belongs to the Crown, because if you are knocked down and injured by a commercial vehicle you may have retained enough consciousness to read the name of the firm or company emblazoned on the side. You may have preserved enough of life to notice that in a flash before the vehicle disappeared, whereas it is not any good simply to know that you have been injured by a vehicle which belongs to the Crown. To that extent there may be a slight difference. But against that it is most important that every one should appreciate that the Departments quite willingly accept the position that they 916 ought in justice and fairness to accept this burden, though they are not bound to do so. I have never known cases in my own experience in which either the Department or the Treasury have raised any sort of objection to the payment of damages when the case was proved.
Perhaps I might give an illustration which happened within my own experience. I have had many such cases to deal with. I remember quite well a rather famous litigation in which, if I remember rightly, the owner of a fishing smack claimed that it had been run down owing to the negligent navigation of a ship of war. The question that was litigated in the Court was whether the navigation was, or was not, negligent; but the action which was started was not an action by the owner of the fishing boat against His Majesty's Government or against the Lords of the Admiralty; it was an action brought against the captain or, it may have been, the navigating officer of the man-of-war, who was, of course, primarily responsible if anything negligent had been done. In the same way some of the older members of your Lordships' House may recollect that years and years ago there was a great controversy about a seizure of arms in the Persian Gulf. There was an attempt to stop a gun-runner who was supposed to be assisting, I think, the Afridis. There was a case which I remember well in which I had some little hand, in which the Lieutenant-Commander of a destroyer, or some vessel of that sort, was sued personally by the owners of a cargo of arms, who said he had no right to stop them and seize them in the Persian Gulf. That contention was rejected after much litigation. The claim, of course, was not against the Admiralty, but against the person responsible for giving the order on the ship.
Your Lordships are well aware that a few years ago there was instituted, greatly to the public advantage, a system of third-party insurance in connection with motor vehicles. We all have to make that provision if we are not prepared to break the law. When that Bill was being discussed in Parliament, the question was raised whether third-party insurance policies should also be taken out in the case of Crown vehicles, and the answer and explanation given in the other House of Parliament was that there was no need 917 to take out third-party policies of insurance for Crown vehicles because there was the whole finance of the State which would be prepared to meet any well-founded claim. That argument prevailed and to this day a Crown vehicle is not required to take out a policy of third-party insurance. The matter, therefore, really comes to nothing more than a practical question, because, of course, it is impossible for any man to make a good claim against a wrongdoer unless it is shown what happened and it is proved that it was wrong.
I hope that what I have said will lead members of the public to understand that if they have grounds for a claim there is no reason to desist because it is a Crown vehicle. Such a person should take the steps open to him, do the best he can to collect witnesses, and make a note of the number of the vehicle, because Government vehicles carry numbers like any other motor cars. As the law stands it really is well devised for the purpose of meeting these cases as long as we maintain the rule which we do maintain, and have maintained, to my knowledge, for twenty or thirty years. The Departments whose vehicles are running about the roads, though not technically liable in law, undertake to make good damages awarded—unless they compromise and settle the case—so that really and truly the citizen who is in this way injured need not feel that he is without remedy. I hope that these remarks to which your Lordships have been so good as to listen, and more particularly the text of my written answer, may possibly receive notice even in these arduous times in some secluded corner of the public Press, and if that is done I feel convinced that the question put has served a most useful purpose. As I have already said, I am most grateful to my noble friend Viscount Cecil for having given me this opportunity of making the statement.
§ LORD GAINFORDMy Lords, there are two questions which I should like to ask. One I would address to the noble and learned Viscount on the Woolsack, and that is whether, in the event of an accident occurring due to the negligence of a man in uniform where the man is not on duty, the Government are liable for the damage done, or must an action be taken against the individual. Would the Government be liable if the driver was 918 driving a Government car or a private car? These cases do arise.
I should like also to ask the noble Lord who represents the War Office, what are the definite instructions given to men in connection with driving, because it does seem to me, having had a good deal of experience in a country area where there are a great number of lorries, that there is a good deal of negligent driving on the part of lorry drivers. They frequently will insist on maintaining their position in the centre of the road, covering the white line and driving traffic coming the other way to the roadside or into the ditch, rather than give way in the ordinary manner. Last Sunday, when I was driving in a built-up area, a lorry passed me at the rate of fifty miles an hour. It. was a place where there were a lot of arteries going into the main road and the driving of the lorry was quite negligent. It was impossible for me to take the number of the vehicle because the number plate was obliterated by dirt. It was also impossible for me overtake the lorry to find out where it was going or who was the driver. This is the sort of case which occurs constantly on our public roads, and it is the duty of the Government, I think, to give definite instructions to these men that they are to restrict their speed to the same limit as that which is enforced on other drivers.
VISCOUNT MERSEYMy Lords, as one who was also concerned recently in an episode with an Army vehicle, I should like to say a word or two upon this question. I was driving in Sussex and a Canadian military vehicle backed into my car and damaged the bonnet a little. I asked the driver his name and unit and he gave them to me quite courteously. Afterwards I wrote to the Headquarters and within three days I received a very civil letter asking me what the extent of the damage was. I replied giving this information, and within a fortnight the account was settled. It is not a case of fault in every respect therefore.
§ THE EARL OF CLANWILLIAMMy Lords, I would like to say a word or two about Army cars being driven by drivers who are not on duty. There is no doubt that a great many of the complaints which have been made in various parts of the country are about lorry drivers and car drivers in the Army who 919 go out without leave from their units and who are thus able to dash about the country to the danger and detriment of the inhabitants of rural districts. One result of this is that many people say they will not allow their womenfolk to go out at certain times. As Lord Gain-ford has suggested, unless these words "on duty" are very carefully construed a Commanding Officer might well turn round and say, "This man took the car out without my permission, he was certainly not on duty," in which case the Government might be held to be not responsible and, the driver being a man of straw, the injured person would have no redress.
§ LORD CROFTMy Lords, a question has been somewhat hurriedly addressed to me by Lord Gainford. He asked me what are the definite instructions given to Army drivers. I am afraid that I cannot give him the words, but I will see if there is a general formula which is used and, if so, I will see that the text of it is forwarded to him. I can certainly assure my noble friend that very definite instructions have been given, and quite recently they have been largely reinforced. Every step has been taken to improve the march discipline of Army vehicles, and I must confess that as one whose duties take him all over the country I have, myself, found that march discipline has enormously improved. We appreciate very fully that it is one of the imperative needs of modern warfare that such discipline should be as perfect as possible. With regard to the episode described by Lord Gainford, I regret that he did not get the number of the lorry which was travelling at fifty miles an hour. Had he done so we would have been able to get the man who was driving it. There is no doubt that he was committing a very serious breach of discipline. Naturally, Army vehicles now form a great part of road traffic. I am sure your Lordships will have noticed what a colossal number of such vehicles we now have, and it must be realised that they form a very large proportion of the total number of vehicles covering the roads. Moreover, they travel great distances.
In reply to my noble friend the Earl of Clanwilliam, who raised the point about 920 officers and men being in cars without leave, I can tell him that we are taking drastic action in respect of such breaches. If any military vehicle is used without leave—and cases of the sort have recently come before me—the strongest action is taken if the vehicle is being used for other than military purposes. A private car belonging to an officer would, I suppose, be subject to the same processes of the law as a car owned by a private individual.
§ THE EARL OF CLANWILLIAMBut if the driver of the car was a private he might be a man of straw, unable to pay anything. And there is no obligation in law whereby the injured person could obtain compensation.
§ LORD CROFTI would like to suggest that when the noble Earl is on duty at the Admiralty Arch, as he so often and so nobly is, he will, if he sees such an individual, take his number.
§ THE EARL OF CLANWILLIAMI would not have alluded to this myself but I may say that when I have been on duty I have noticed that drivers of these military vehicles will not accept the office. I stand there at the Admiralty Arch very often, and it is my duty to assist in every way that I can everything that happens there, and naturally part of my duty is to assist traffic. I have had great experience of traffic control and I know something about it, but these men of whom I am speaking absolutely refuse to accept the office. Whether they look upon me as a nobody I cannot say; I dare say they may, but I do my best. Civilian cars will accept the office, but the drivers of military cars seem to make a point of completely refusing to do so and, in fact, of refusing to do what they ought to do. They will not, for example, do what they ought to do to prevent making a block and things of that sort. It is very extraordinary. I can only attribute it to the commanding officers not having the time to teach their men the ethics of traffic control.
§ LORD TEVIOTMy Lords, I would only say a word with a view to reinforcing what my noble friend the Earl of Clanwilliam has said. A special constable told me the other day that he had put out his hand to stop traffic and an Army vehicle drove straight past him. He shouted to the driver, but the man did not, or would not, hear.
§ LORD CROFTIn reply to those of my noble friends who have just spoken, I would reply that the remedy is very simple. Both the Home Guardsman on duty and the special constable should, if possible, take the number of the offending vehicle and immediate steps would then be taken in regard to the driver.
§ THE EARL OF CLANWILLIAMIt is almost impossible in a great many cases to do that. I think that the remedy should come from above.
§ VISCOUNT CECIL OF CHELWOODMy Lords, I have, in the first place, to return my warmest thanks to the Lord Chancellor for his very lucid and informing statement. I specially thank him because I think his statement will remove a great deal of the misapprehension that at present exists outside on this subject. He anticipated a difficulty which I still feel that, since you cannot sue the Crown, if you cannot get hold of the driver for any reason your remedy is gone. Then again, as my noble friend suggested, supposing the driver is killed in the accident you have no remedy, for, of course you cannot get hold of him. I think that if people have been injured by his carelessness, they ought not to be without their remedy. I am in no great sympathy with the kind of conservatism which preserves ancient forms which have ceased to be of any value, and I should like very much to see the law changed in this matter, while taking all proper precautions to avoid scandals of any character which might be anticipated, so that drivers of vehicles and other agents of the Crown should render the Crown, through the Departments of Government, responsible, in exactly the same way as if they were employed by a private person. I think that that would be a much more satisfactory way of dealing with the matter, but I recognise that it can be done only by legislation.
I should like to make one suggestion to my noble and learned friend. He says that it is the proper course for a person who has to complain of negligent driving to ascertain the name of the driver and the number of the vehicle. It may not always be possible for a person who has been injured to do that, and I think it ought to be made quite clear that in this particular case it is the duty of a driver who has been involved in an accident, 922 whether he admits that it is due to carelessness on his part or not, to give to anyone who is interested in the matter full information as to his name, the number of the vehicle, and everything of that kind. If they happen to be there—they generally are not there at the moment—the police should be given instructions to do everything they can to help in that elucidation of the matter.
I do not desire to say anything about the other matters which have been raised in the discussion, beyond this. My noble friend Lord Croft said that very strict instructions had been given to the military to obey the ordinary laws with regard to driving, and also the rules and understandings which prevail, or ought to prevail, on the subject. I am very glad to hear that those instructions have been given, but I venture to suggest to the Government—and this takes me so much outside my Motion that I can only make a suggestion—that that is not really enough. We have now, largely, I am afraid, at the instance of the large motoring organisations, decided to proceed on the doctrine that everybody wishes to do what is right, and therefore that all that has to be done is to make a few well-turned observations to motorists of various kinds, and they will do everything which is necessary in order to avoid accidents. That has been the course which we have pursued for some years now, but with absolutely no result—no result whatever. The time has come for much more drastic and vigorous measures than that, if the Government are really in earnest—as I am sure that they must be—in their desire to put a stop to this evil.
While admitting the difficulty of legislation, I should like them to look very carefully into this matter to see what they can do by administrative action to make it easier, at any rate, to detect breaches of the law. I have often suggested in this House the desirability of having a speed indicator. It would be a fine thing if the Government would take the lead by requiring all public vehicles to carry such an indicator, which would show to anyone who was passing at what speed the vehicle was being driven. That is only one of many suggestions which might be made. I hope that the Government will do more than merely express sympathy. They always express their sympathy, in admirable language, in these discussions 923 which occur from time to time, and then nothing is done. I am sorry that my noble friend Lord Alness is not here. He sat as Chairman of a Committee which published a most interesting and valuable Report, making a very large number of suggestions, none of which has been carried out. He is now a member of the Government, so that his mouth is closed—perhaps that is one of the reasons why he is a member of the Government! I beg leave to withdraw my Motion.
§ THE LORD CHANCELLORMy Lords, perhaps your Lordships will allow me to add a word. I shall resist the temptation to browse in those wider pastures which have been shown to us in the reply of the noble Viscount, but which, if I may presume to say so, are quite outside the narrow fence of his Motion. I shall confine myself to matters more strictly germane to his Motion. Two or three such matters have been raised. The noble Earl opposite, and my noble friend Lord Gainford, called attention to the fact that in my carefully prepared statement I had limited my information as to the acceptance of liability to cases in which the driver of the Service vehicle was on duty. If you will consider the matter for a moment, you will see that that is necessarily so. Take the case of a private owner who has a chauffeur who may occasionally, without obtaining leave or authority, go for a run by himself. The language of the Judges in such a case is that the driver has gone "on a frolic of his own." Is it suggested that if the driver goes off "on a frolic of his own" his employer has to pay damages? That is obviously absurd; it could not be the case that any superior of the driver, whether the driver is a civilian or a soldier, is answerable in Crown money for the consequences.
As I apprehend it, the duty of the Crown, or of the Departments, is to make adequate arrangements and give adequate directions to secure that people do not use public vehicles and public petrol purely for their private adventures; and I must and do assume that the noble Lord who represents the War Office in this House, as well as all the other Fighting Services, are directing their attention to that matter, which may be a source of serious leakage in more senses than one. Frankly, however, it would be impossible to suggest 924 that the Crown must take the responsibility for damages in cases where the accident has arisen at a time when the driver has no authority or duty to discharge at all, but is simply running about, whether alone or in pleasant company, for the purposes of his private amusement.
As regards the other main point made by the noble Viscount who moved the Motion, I do agree, of course, that there is a great difference between laying down the rules in this matter and working out in every case a satisfactory result. He points out that if you have not taken the name or the number—one may be enough without the other—and thus have not done enough to identify the vehicle, you may be in difficulties. That, however, is the common experience of human nature. If it so happens that you are struck in the dark, you must at least know roughly why it is that you suggest that the Crown should take the responsibility. Mr. Pickwick, on his famous visit to Bristol, found himself suddenly struck on the head when making experiments with a magic lantern. It was no use suggesting that Mr. Pickwick should obtain compensation from the Crown or from the Corporation of Bristol, because he was not able to explain what had struck him. That must be so, from the very nature of the case. I agree, however, that it is most important to insist that Crown servants, like other people, should, if an accident happens, stop to see whether they can help, or put themselves in a position where they are at least available to give information. I speak subject to correction, for I have had no opportunity of verifying this, but I was under the impression that in our existing traffic code there was a requirement that when there has been an accident the motorist should stop and give information, and so far as I know that is legally the case with regard to Crown vehicles, because of course the Army vehicle driver is not the least above the law, and not above the traffic law, and he is just as liable to be dealt with in the Police Court and through the instrumentality of the policeman as anybody else. So I hope that the arrangements will be made as perfect as they can be, but I am afraid we must put up with it if inadequate information makes it impossible for a particular plaintiff to make good his case against those who are responsible.
925 I think I have dealt with the two points which were immediately relevant to the question. I am grateful indeed to your Lordships for giving the matter such careful attention and, as I have already said, I hope very much that the result of the debate may be useful. I may observe to the noble Viscount, Lord Cecil of Chelwood, that when he depicted the sad situation which would arise for the complainant if the driver was killed outright, he is applying Common Law as he knew it when he was practising at the Bar, but subsequent and, I trust, well-inspired legislation has been passed which says that the legal maxim, which he knows well, Actio personalis moritur cum persona, is no longer true, and there have arisen a number of curious questions, such for example as the question as to how much should be paid to represent the shortening of the life of a child of 2½ years which was killed in a motor accident. But that does not matter, as the real responsibility rests with the Department, which they are prepared to accept and I am sure would discharge.
§ LORD MOTTISTONEMy Lords, before we leave this question, since Latin has been quoted, I am astonished to find that the rule of law which I learnt when I was at the Bar, Ubi jus, ibi remedium does not seem to apply in this case. If the driver of an Army vehicle, as I know from an accident which occurred, proves that he is not strictly on duty, there is no remedy. Is that the law? I should have thought it was most extraordinary doctrine. Perhaps the Lord Chancellor will tell us, is it really the case that when an Army lorry driver, while not strictly on duty, either kills or injures someone, there is no remedy? It seems to be a totally different case from that of the chauffeur.
§ THE LORD CHANCELLORMy Lords, as the noble Lord says this was a matter within his own experience, it must have occurred. But if a lorry driver drives an Army lorry while not on duty that obviously must be for his own pleasure. If such things happen in any well-organised unit of the Army, the 926 authorities would at once want to know where the driver got the petrol, where he was going, and why his car came in dirty. It is obviously a matter of discipline, and it must be the case in every well-disciplined Army that you must prevent the drivers from careering about the country in Army vehicles at the public expense. Let me give an analogy. If His Majesty's coachman, on an occasion when the carriage is not required, purely for his own purposes chooses to drive about London it would be monstrous to say that the employer of the coachman was responsible for the consequences.
§ VISCOUNT BUCKMASTERMy Lords, might I ask the noble and learned Viscount on the Woolsack a question? Is there not this fundamental difference, that in the case of a private car the vehicle is covered by third-party insurance, and in the case of an Army vehicle it is not so covered?
§ THE LORD CHANCELLORI am afraid my noble friend was not able to be here during the whole of our proceedings. I spent some time in explaining that very fully, and if my noble friend will be good enough to look at the report of the debate I think he will find that the statement was quite clear.
§ VISCOUNT BUCKMASTERI apologise.
§ Motion for Papers, by leave, withdrawn.