HL Deb 06 June 1945 vol 136 cc401-4

[The references are to Bill No. 22.]

Clause 2, page 2, line 27, leave out subsection (1) and insert: ("(1) Where, within the time limited for the taking of proceedings under the Workmen's Compensation Acts, 1925 to 1943, ah action is brought to recover damages independently of the said Acts in respect of an injury or disease giving rise to a claim for compensation under the said Acts, and it is determined in that action that—

  1. (a) damages are recoverable independently of the said Acts subject to such reduction 402 as is mentioned in subsection (1) of the foregoing section of this Act; and
  2. (b) the employer would have been liable to pay compensation under the Workmen's Compensation Acts, 1925 to 1943;
subsection (2) of Section twenty-nine of the Workmen's Compensation Act, 1925, (which enables the court, on the dismissal of an action to recover damages independently of the said Acts, to assess and award compensation under the said Acts) shall apply in all respects as if the action had been dismissed, and, if the claimant chooses to have compensation assessed and awarded in accordance with the said subsection (2), no damages shall be recoverable in the same action. This subsection shall apply, with the necessary adaptations, in ally case where compensation is recoverable under a scheme certified or made under the Workmen's Compensation Acts, 1925 to 1943, Or under the Workmen's Compensation and Benefit (Byssinosis) Act, 1940, if the scheme applies Section twenty-nine of the Workmen's Compensation Act, 1925, or contains any provision similar to that section.")

Clause 4, page 3, leave out lines 28 to 33.


My Lords, I beg to move that this House doth agree with the Commons in the said Amendments, and I shall deal with the first two Amendments together. A very few words of explanation only are required from me. Your Lordships will remember that the main object of the Bill is to make a very desirable and much overdue change in the law, so that where a person has suffered injury through the negligence of another, and sues that other for damages, he shall be able to recover at any rate some damages even though he, the plaintiff, is shown to have contributed by his negligence to the accident. That is the law as between ships, but, oddly enough, it is not the law as between motor cars, or, which perhaps is more important, between a person crossing the road and a motor car. Many cases have arisen in which great injustice, in my view and in the view of many other people, has been done, and it is high time that we changed the law. That we are doing, and the House of Commons entirely agree. That part of the Bill is wholly uncontroversial.

When I introduced the Bill in your Lordships' House some months ago, however, there was a Clause 2, drawn in terms which had been recommended by a Home Office Committee presided over by the present Solicitor-General when he was a private individual. That Clause 2 was really to the effect that the Bill should not apply in cases where the claimant was a workman who was injured by an accident arising out of or in the course of his employment. I am free to confess to your Lordships now that I myself never quite saw why it should not apply to a workman in those circumstances, and I had to exercise some ingenuity in assuring your Lordships and some other people that the general proposal to change the law of contributory negligence was a very just thing to do, and then, coming to the second clause, say that it should not be done in the case of a workman injured by an accident arising out of or in the course of his employment. In the Committee in the House of Commons a proposal was made to change this Clause 2 in the way in which it appears in the Paper now before your Lordships. The clause is put into a form which is the form in which I myself should have liked to see it in the first instance, and I am glad to say that in the meantime the Home Office Committee have reconsidered the matter, and no longer stand by their first approach to it.

The nature of the provision will be this. Under the Workmen's Compensation Act, if a workman meets with an accident arising out of or in the course of his employment, he has a choice of two alternative remedies. If he thinks that he can prove against his employer, independently of the Act altogether, that the employer must pay him damages because of negligence—for example, failing to fence machinery—then, quite apart from the Act, he can claim a lump sum, and it may be a very large lump sum, in damages, and if he proves his case he will get it, and that would be the end of the matter. The Workmen's Compensation Act went on to provide, however, that if he failed to enforce his right independently of the Act he could still have the alternative, subject, perhaps, to paying costs, of claiming what was due to him under the Workmen's Compensation Act, which does not depend on any question of negligence at all, but simply on this: "I am a workman, and I was injured in this way by an accident which arose out of or in the course of my employment." It makes no difference whether the accident was unavoidable or whether it was nobody's fault or the employer's fault or, generally speaking, even whether it was the workman's fault.

I propose now that we should accept these Commons Amendments, which will make a corresponding provision in this Bill. They will still keep alive the right of the workman to make a claim against the employer independently of the Workmen's Compensation Act. The workman's contributory negligence, however, will not defeat the whole of his claim, but merely give him a reduced sum. That is already provided, but we then go on slightly to modify the terms of the Act, so that the workman, if he finds that he is going to get only a very small sum, shall be entitled at that stage to say: "I will not take that, but will make my claim under the Workman's Compensation Act." That is an entirely sensible provision. It has commended itself, I am glad to say, to all parties, and I have no doubt that the House of Commons was perfectly right to make this change in the Bill, which was accepted by the then Attorney-General on behalf of the Government, and which has my warm approval. We are all, therefore, happily at one, and I think that we may congratulate ourselves on having originated in this House, and on now, I hope, passing into law, what is unquestionably a most beneficent change, which will secure more justice to thousands of people who at present are deprived of their compensation, I will not say by a technicality but by a very ancient provision of the Common Law, which should not last any longer. I beg to move.

Moved, That this House doth agree with the Commons in the said Amendments.—(The Lord Chancellor.)

On Question, Motion agreed to.