HL Deb 23 January 1945 vol 134 cc633-47

2.16 p.m.

Order of the Day for the Second Reading read.


My Lords, this is the second Bill to which I referred and, as your Lordships have been able to endure the first of my discourses, I hope you will be interested in the second, because it deals with a much more attractive subject. If there is a collision between two ships and the owner of one of them claims damages from the owner of the other for negligence, the second ship will not escape liability for its own negligence by saying that the first ship was negligent also. There may arise what is called in the Admiralty Court a condition of "both to blame" and in the Admiralty Court, when the result of the evidence is that both ships are to blame, the Court decides what is the proper proportion of the fault between them. Is one side more to blame than the other? The Court fixes the fractions, it adds the damages together and it makes each ship bear its proper proportion of the whole. This maritime rule is now embodied in our Maritime Conventions Act, 1911. That is what happens if two ships run into one another. The consequence is, according to the law of the sea, that if an injured ship proves that the other ship was in fault and helped to cause the damage, it may get a certain amount in compensation even though the first ship was negligent also.

But, instead of two ships, let us take the case of two motor cars which come into collision, or perhaps there may be a running down case in which an individual citizen is injured. The defendant motor car may be proved to have helped to cause the accident by its negligence through furious driving, if you like, and yet it may get off altogether if it proves that the plaintiff also was in fault in some degree. That is what lawyers call the defence of contributory negligence. If the defendant proves that the plaintiff contributed to his own negligence, the plaintiff can recover nothing at all. To give an example: if a woman is crossing the road carrying a basket or a baby on a windy day and is trying to keep her umbrella up, and if she is run over by a motor car which is being driven recklessly at 100 miles an hour and therefore cannot be stopped in time, the woman cannot recover anything if it is proved to the satisfaction of the Court—in the old days it was largely to the satisfaction of the jury—that she contributed to the accident by her negligence: say, that she did not take care to look along the road before she started to cross. One result of that of course, in the days when there were more juries than there are now, was that juries were extremely unwilling to produce such a result and sometimes indeed gave the plaintiff more money than the plaintiff really ought to have had.

The proposal of this Bill is in substance to apply the Admiralty rule to Common Law cases. It has long been held not only by many lawyers but by most laymen who have considered the subject that this Common Law rule ought to be altered. There is a Standing Committee of distinguished lawyers which from time to time at the request of the Lord Chancellor considers an alleged defect in the law and recommends how that defect should be remedied. We have made use of this Committee many times. The Chairman of the Committee is my noble and learned friend Lord Wright and on it you get judicial talent, practising solicitors, practising barristers and law professors a body of people well competent to advise. The eighth Report of this Law Revision Committee—it is available to your Lordships if you wish to see it; it is a White Paper—recommends that the Admiralty rule is the fairer rule and should be adopted in Common Law cases. I entirely agree with the view of the Committee. That is in substance the purpose of this Bill.

If your Lordships will be good enough to look at the Bill you will see in the first few lines of Clause 1 the substance of the matter there set out, and I am glad to say set out without the use of any technical word whatever. I trust this may be regarded as a model of drafting. Let me see if anybody doubts what this means: Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage: In many cases it will be half and half. I may say that where there is a jury the jury will still determine it. That is the ma in proposal, the kernel of the Bill. I hope your Lordships will agree that it is very good sense and that we ought to do our part in passing it into law.

There are some subsequent provisions in the Bill which I do not think I need explain in detail at this stage though I think one or two of the provisions may have to be examined carefully in Committee. There is, however, one thing about which I must offer your Lordships a short explanation. Clause 2 at first sight may raise doubt as to whether it is right. I think I can satisfy your Lordships if I may say just this. Clause 2 provides that there shall be no change in the law which at present applies when a workman claims against his employer in respect of damage caused by accident arising out of and in the course of his employment. At first sight that looks wrong. But your Lordships are aware that the Government are considering proposals for a new scheme for Workmen's compensation based on quite new principles. Until that scheme is worked out and enacted by Parliament I am on reflection satisfied, and I am advised, that it really would be better to leave the law of workmen's compensation as it is for the following reason. It is a slightly technical reason but those familiar with the Act will readily follow it. Under the Workmen's Compensation Act a workman has an option. He may make a claim and try to establish it against his employer independently of the Act. For example, he may say that his employer was liable to him because he failed to fence machinery. That has nothing to do with the Act. Alternatively, if the workman prefers, he may claim compensation under the Act. But he must not do both. That has always been the provision which Parliament has made. But Parliament made this provision which is very much in the workman's favour. It said that if a workman tried to get compensation independently of the Act and failed, then he should still have the opportunity of getting compensation under the Act.

Your Lordships will see that if we apply this new law regarding contributory negligence to such cases as this there will be instances—perhaps many instances—in which the workman, instead of failing against his employer, will win but he will only get a fraction of his damages. If we were to leave things in that condition the workman by the fact that he has got a little compensation would be deprived of getting any compensation whatever under the Workmen's Compensation Act. I felt that this was a difficulty. There was sitting a Departmental Committee on Alternative Remedies set up by the Home Office and I brought this matter before the Departmental Committee. Indeed I attended and did my best to explain to the Committee this difficulty and we now have the advice of the Committee. This Committee, which contains of course representatives of organized labour and representatives of employers, also contains a number of other people especially competent to deal with this sort of question. In its Interim Report on the subject—it is Command Paper 6580 Interim Report of the Departmental Committee on Alternative Remedies (Contributory Negligence)—the Committee unanimously recommend what is contained in Clause 2.

The view the Committee takes is that it really would be not to the advantage of the parties in cases of that sort to get this new law applied to them in the interval before the new workmen's compensation code is enacted. In many cases it would be calculated to deprive the workman of the alternative remedy which he certainly ought to enjoy if he fails in the first action because he might no longer fail but might get perhaps £50 whereas he hoped to get £500. I am therefore acting strictly in accordance with the advice which the Departmental Committee unanimously gave, the advice which as I have said is to be found in the White Paper to which I have given the reference. The matter has been closely examined, and I feel that the right course is to insert Clause 2 as it stands.

Such is the nature of the Bill. It will, undoubtedly, effect an important change in the law, and, in the course of time, will affect thousands and tens of thousands of people. I am very glad to have had the opportunity of bringing it before Parliament, and I commend the Bill to the House as embodying a much needed reform in the branch of the law to which it applies. I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2ª.—(The Lord Chancellor.)

2.32 p.m.


My Lords, I rise only to ask a question on a specific point. From what the Lord Chancellor has said it might appear that in the instance he gave, in a running down case, the person who was obviously driving most recklessly could be relieved of part of the damage be caused by the negligence of the person he ran down. Of course, the amendment to the law which is now proposed makes it better than it was before but I take it that it does not make it good enough. I should have thought that, especially in these running down cases, where a man is so flagrantly breaking the law, he ought to be liable for the whole of the damage he causes whether there is negligence on the part of the other party or not. It would seem to me a deplorable view to take—and if nothing was said I thought it might be taken—that when anyone recklessly breaks the law by driving at a hundred miles per hour he can get off paying some of the damage to the unfortunate individual he strikes because that individual is partly at fault. I think that the Lord Chancellor may be able to remove some of our doubts, if he will. Judging from the instances he gave of the wording of the Bill, matters would appear to be as I have suggested.

2.34 p.m.


My Lords, it happened that a few days ago at the Law Courts I went into the Court of Appeal for a few moments, and while there I heard the learned Lord Justice who was presiding over on of the Divisions of the Court deliver judgment. I heard only a few words but they were something to this effect: "The plaintiff put his foot upon the pedal that set in motion the machinery which caused the damage. It was a lunatic act, but I fear that that concludes the matter." I left the Court holding even more strongly than I have held for many years past the view that the time had more than arrived when a modification of the law was required in order that contributory negligence should not be a defence, a complete defence, to a claim for damages. That very afternoon—for it was last Wednesday—the Lord Chancellor introduced this Bill for its First Reading with a few explanatory words drawing attention to the White Paper which he has mentioned to-day. I could not help thinking what a happy coincidence it was that I should go, as it were, straight from the Courts where I had heard effect given to this harsh doctrine to this House to find that at last it was to be ameliorated.

My noble friends on these Benches and I welcome the fact that this Bill is now about to be carried into law—as we may assume that it will be. The Report of the Departmental Committee to which the Lord Chancellor has referred is not, perhaps, the clearest of explanatory documents in itself, but it is perfectly plain that it is an ample foundation for the whole of the contents of this Bill as regards its main purpose. I think I may, possibly, have one or two Amendments to suggest at a later stage, and perhaps I might indicate now two points which trouble me, in the sense that I am not quite clear whether I understand the purpose lying behind them. One relates to the proviso to Clause 1. I have no doubt that the Lord Chancellor, if he speaks at the close of this discussion, may clarify that issue, and I will not dilate on the subject now. I have no doubt that it can be dealt with in the course of this discussion by the Lord Chancellor and the position explained, otherwise the way will be open for an Amendment.

A further matter to which I should like to refer is this. It is of course the case that the provisions with regard to workmen's compensation tally with the recommendations made in the White Paper and, in effect, preserve the position for the workman. There is, however, one point, as I find it, of some obscurity in the White Paper on page 6. It is indicated there that the members of the Departmental Committee were considering whether an action brought by a workman against a person other than his employer where the accident arose out of and in the course of his employment should or should not be included in this Bill. The Committee begin their statement with some words of emphasis: We are clearly of opinion that these actions should be included in the Bill. Then, after giving reasons, they rather water it down and state: We therefore recommend that actions by workmen against persons other than their employers should not be excluded from the Bill. It is a technical point, but reasons are given by the Committee for the conclusion at which they arrive.

One of them seems to me to be based, if I may say so with respect, on perhaps rather dubious grounds. I say that because of the actual wording of the Report. The members of the Committee state that "it is doubtful whether the workman will suffer any disadvantage if these actions are included in the Bill," and then go on to state that it is arguable whether certain disadvantages would not arise. They then use a phrase which always strikes doubt in my mind—"if this argument is sound"; and continue "then the workman not having recovered damages is not barred from recovering compensation." That is very much the point which the Lord Chancellor mentioned earlier to-day as to choice of remedy. Then they go on to a second point, where their argument seems to me to be perfectly clear and easy to follow, and they arrive at the conclusion which I have mentioned, that action against third parties should not be excluded from the Bill. They seem, if I can read their minds aright from what appears here, to have been confronted with two arguments, one decisively in favour of not excluding such actions from the Bill and the other put forward with more doubt; and they seem to have come to the conclusion that on the balance of advantage these actions should not be excluded from the Bill. I am not expressing an opinion here and now upon this subject; I am merely indicating that this is a point which seems to me worthy of consideration and upon which I may desire, on behalf of my noble friends and after consultation, to put down an Amendment. I am simply keeping the way open to do so.

I should like to ask the noble and learned Lord Chancellor a question which I think he will feel is a proper one for him to answer—he will tell me if he does not. Whereas the Departmental Committee make it clear that they have had no consultations with representatives of organized labour and with organizations representative of employers and workmen in regard to some of the earlier matters which they have considered, but intended to do so before making recommendations, they appear in this matter to have arrived at a conclusion without such consultation, and indeed to have thought it unnecessary. I wonder whether perchance the noble and learned Lord Chancellor, since the signing of this Report, has had an opportunity of consulting with representatives of organized labour. If that is so, and if they are in accord, the point that I am putting to your Lordships can be disregarded. With those observations, I say on behalf of my noble friends that we support the Bill now before your Lordships.

2.43 p.m.


My Lords, you will have observed that in this measure you are invited to legislate for Scotland as well as for England, and the noble and learned Lord Chancellor has suggested that I might add a word from the Scottish point of view to what he has said. The law of reparation in Scotland is rather different from the law of reparation in England; it has a different history and a different incidence. It reflects to some extent the ancient Roman law with which we have so long been associated in Scotland. As time has gone on, however, the laws of the two countries have fortunately come to be very much the same; but while we have shared the merits of the law of England, in many respects I am afraid that we have also shared some of its demerits, and among its demerits is this plea of contributory negligence.

In Scotland, as in England, the pursuer (if I may use my native vocabulary), if he is found to be guilty of any negligence whatever, loses his suit and is without any redress for the wrong which is done to him. In other words, the defender must be liable for all or for nothing. That state of affairs, of course, does not reflect the facts of life; it is not consonant with what happens in daily life, where almost every incident that happens is contributed to by more than one person. It is very seldom indeed that you find a case where all the fault is on one side, but if the fault is on both sides the law has hitherto said: "We can do nothing for you; we shall not distribute the blame and we shall not distribute the damages." That has constantly been felt to be a serious defect, and it is to remedy that injustice, both in England and in Scotland, that this measure is proposed.

It does not go the whole length, and the observations already made on it show that it does not deal with all possible points. It still leaves a very large area of debate—of remunerative debate, possibly —for members of the legal profession as to what is the proximate cause and the remote cause and those other questions of which we hear so much at the Bar of this House in another capacity. The mere fact that you cannot remedy the whole of the law at one time, however, is not an argument for not doing something to remedy it as far as possible. What has happened is that Lord Wright's Committee, with the Lord Chancellor's blessing, has from time to time seen that really flagrant defects in our law are examined and redressed. Hitherto there has been very little chance of doing that in Parlia- ment, because these matters were dealt with in comprehensive Statutes, and a comprehensive Statute is a very difficult thing to get through Parliament; but now we are proceeding piecemeal, and one point after another is being taken up and put right.

This Bill, as I say, applies also to Scotland, and I may perhaps—I do not know whether your Lordships are sufficiently interested—translate to you one of the provisions to be found in Clause 5 of the Bill, which deals with the Scottish case. In England you have Lord Campbell's Act, which, as you know, gives a right to the relatives of a person who has been killed by negligence to recover, and you now have also the Law Reform (Miscellaneous Provisions) Act of 1934. These measures do not apply in Scotland. We have always had in Common Law in Scotland a right on the part of relatives to sue for damages in respect of the death of a person which has been occasioned by negligence. That is known as the action of solatium. We are very fond of Latin words in Scots law, and the word "solatium" represents that particular form of consolation—pecuniary consolation, and on that account none the less welcome to a Scotsman—for the loss of a near relative which has been brought about by negligence.

To such an action in Scotland there was exactly the same defence as there has been in England. If you could show that the deceased person had in any degree, however minute, contributed to the calamity which had 'befallen him, there was no remedy at all and no redress could be given. Now, by this clause, that has been put right, and the result will be that in effect the person who has suffered a wrong will recover what he ought to recover, no more and no less. He ought not to recover all that he has suffered if he has himself contributed to some extent to the wrong which has been done to him. The sum that he will recover will be pro tanto diminished, and he will receive what he ought to receive, no less and no more. The Bill has been already so fully brought before your Lordships by the noble and learned Lord Chancellor that I do not wish to say more than is necessary to extend to it a welcome on behalf of the law of Scotland, to which I think it will also contribute an important and valuable reform.

2.49 p.m.


My Lords, I should like to say one or two words on this Bill. It is an excellent thing that this Bill has been introduced, because of late years, since the introduction of motor cars and mechanically-propelled transport generally, the pedestrian has suffered very much. In the old days, before the advent of the motor car, if you were run down by a pair of horses in the streets of London it was commonly supposed that this was the fault of the coachman, and that you could recover damages from the owner of the carriage. That was the common supposition—whether it was right or wrong I really cannot say. But since the advent of mechanical transport the position of the pedestrian has suffered very much indeed. The custom has grown up now for the driver of a motor car or any mechanically propelled vehicle to sound his horn and expect the pedestrian to get out of his way; he does not attempt as a rule to slacken speed, and if you are not sufficiently agile you have no chance of crossing the road. I do not know whether this question will be considered by the Committee presided over by the noble and learned Lord, Lord Wright, or how it should be dealt with, but I think that it is a very important matter.

There is no question that a great many drivers think that all they have got to do is to blow their horn and that there is no obligation to slacken speed. Yet it is far easier to stop a motor car than to stop a pair of horses in a London street. We remember very well the great controversy which took place over the question of the bearing rein, sponsored by the late Duke of Portland. The bearing rein was necessary in London for the very reason that a coachman could not pull up quickly enough to stop and avoid running over somebody unless he had a very severe bearing rein on his horses. There is no difficulty whatever in stopping a motor car, while on the other hand there was cruelty in having a bearing rein. For that reason I hope some steps will be taken to see that this custom which has grown up absolving the driver of a motor car from the necessity of stopping when he sees an unfortunate man or woman crossing the road at a time when he or she is very likely looking the wrong way, will be dealt with and something be done to safeguard and protect the unfortunate pedestrian.

2.52 p.m.


My Lords, I do not wish to detain this House more than a very few minutes but as I was to some extent responsible for the idea of altering the law of contributory negligence I do want to say a very few words to welcome this Bill, which gives effect to a desire that I have felt for a considerable number of years. The whole law of contributory negligence was unfair. Many people have felt that, and the law of negligence is one which ought to be made as correct and as apt as possible, because it affects most nearly the whole mass of the population. In my experience as a Judge of Assize I constantly had instances in which the unfairness of the rule was only too prominent. And where you have an unfair rule of law it generally carries with it two very undesirable consequences. One is that juries in considering the facts, when they are told that the fault was the plaintiff's and they ought to find for the defendant, however much they thought the defendant was to blame, generally slur over in their minds—quite honestly I am sure—the awkward and unfair aspect of contributory negligence. Consequently you do not get the facts properly dealt with. The other undesirable result is that where you have an unfair rule the Judges are deeply interested in trying to devise modifications, qualifications and distinctions which will mitigate the unfairness. That is indicated in this particular case by the fact that there are masses of refinements and distinctions which have been introduced for that very reason. I do not want to say more than this, because the Lord Chancellor has so lucidly and cogently explained the purpose of this Bill, and it seems to me very desirable. Clause 1 I think will get rid of difficulties about cause, proximate or remote; the language is perfectly simple and perfectly clear and most apt. I do welcome this Bill and hope that it will receive a speedy passage into law.

2.55 p.m.


My Lords, perhaps I may be allowed to say a few words in reply at the end of the debate. First I would wish to thank your Lordships very sincerely for the friendly welcome which has been given to this Bill in all quarters and on both sides of the House. The view which your Lordships at present are disposed to lake is, I am quite satisfied, the view which will be taken by the public who are interested in the subject and, as my noble and learned friend Lord Wright has just observed, there are immense numbers of people interested. Those who perhaps will be most relieved by the Bill will be among the poorest of our population, who really are not of course in a position to spend great sums of money in a lawsuit. So much for the general provisions of the Bill.

I deliberately refrain from discussing now details which are perhaps more appropriate for the Committee stage, but I will just say a word, if I may, in reply to two observations of the noble Lord, Lord Nathan. In the first place Lord Nathan called attention to the proviso at the end of Clause 1 (1): Provided that this subsection shall not apply to any claim under a contract and shall not operate to defeat any defence arising under a contract. I think Lord Nathan was well justified in raisin, a query about that particular language. The second part of the provision is plain enough— Provided that this subsection…shall not operate to defeat any defence arising under a contract. Evidently if you have made a contract with someone and have entered into a free bargain with him that you are not going to compensate him if he is himself partly negligent, you are quite entitled to do so. I think, for example, that a dentist would be quite entitled to say, "I am not going to compensate you if I should hurt your jaw when you go on shaking your head." On the Committee stage I will put down myself words to deal with the earlier words of the proviso.

Then my noble friend also asked an important question in regard to Clause 2. I will not go into the detail now. He has himself taken the trouble to examine the unanimous Report of the Monckton Committee, but I would just point out that among the members of that Committee there was a very well-known member of the General Council of the Trades Union Congress, Mr. George Isaacs, M.P. He has often been the adviser of the organized workmen of this country in these rather technical matters. I have not myself personally made inquiries outside, but I have been in communication with the Home Office who, as I know, always keep in very close contact with organized labour and with organized employers, and I have every reason to think that the proposal which this Committee has made is one which will be generally agreed to. The question may turn up in another House; but I think that, as far as we are concerned, we can hardly do better than follow the advice given by those who went into the matter most carefully.

Then there is one other matter which I will venture to deal with. The picture of a motor car doing one hundred miles an hour and a much embarrassed lady struggling on a windy day with her umbrella went to the romantic heart of my noble friend Lord Mottistone, and led him to say that it was a mistake not to give the whole amount of the damages to the partly negligent female. Of course the answer to that is, as my noble, gallant, and legal friend in his more legal moments will appreciate, that you have to lay down a rule which will apply to all sorts of cases. It will even apply to the unromantic case of two motor cars running into one another at the same speed and each responsible for half the damage. It would lead to very odd results if each of them was to recover the whole amount from the other—in fact, the arithmetical calculation is entirely beyond me. As Lord Macmillan said, whether in England or in Scotland, the pursuer, as they say in Scotland, or the plaintiff, as we say in plain English, ought not to recover all his damage if he has contributed by his carelessness to his injury. But I concede at once to my noble friend Lord Mottistone that if we have so tragic a case as the one by which his emotions were stirred, I should expect the proportions to be extremely unequal, and I would say that much the larger part of the damage ought to be met by the motorist.

Those are the only explanations I think I need offer at this moment and I am very glad that this Bill is thus far launched on its way. As Lord Clanwilliam said just now in that most interesting speech going back to the old days, the situation has changed. We have even now in London, and I believe in Paris, crossings on the highway marked out by those large metal insertions in order that you may know where to walk if you are not to pay the whole of the expenses of your own funeral. I have been told—I do not know if it is correct—that the practice in some foreign capitals suggests that if you go across the road anywhere except between those narrow boundaries which the French call passages cloutés then you are fairly exposed to the full fury of the taxi driver, and the only safety in getting across is to keep strictly within the lines thus drawn. I do not know how that may be. But although I recognize the change to which my noble friend refers, it still remains the law that if you are injured by somebody who is driving a vehicle, albeit a motor car, and your injury is due to his negligent driving, you are entitled to recover damages from him, and there have been many cases where large damages have been awarded. The difficulty hitherto has been, as was pointed out by my noble and learned friends, that both in England and in Scotland you lost your right to that if the man against whom you claimed could show that your negligence had contributed in a small degree to the result. Although that is a very old piece of law, I think it has worked quite a considerable injustice in many cases, and I am delighted to find that both lawyers and laymen in this House believe that that law should be changed.

On Question, Bill read 2ª, and committed to a Committee of the whole House.