§ 4.4 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (VISCOUNT JOWITT)
My Lords, I rise to move that this Bill be now read a second time. The Bill deals with a variety of matters, all of which I fear are complicated and technical, and your Lordships may think that they bear very little relation to each other, save for the fact that they all arise out of that branch of the law which is concerned with a man's liability to an action for damages for personal injuries caused to someone else. I think it may assist your Lordships if I say at once that the main object of the Bill is to deal with what is known as the problem of alternative remedies. When the Bill for what is now the National Insurance (Industrial Injuries) Act, 1946, was before Parliament it was quite rightly pointed out 1184 that there was an omission in that Bill because, although it proposed to repeal the Workmen's Compensation Acts, there was nothing in it to take the place of the provisions contained in those Acts relating to alternative remedies.
The problem, as those of your Lordships who are familiar with this subject will know, is that where a man meets with an injury at his work there are many cases in which he may have a perfectly good claim against his employer for a lump sum by way of damages for negligende. The Workmen's Compensation Act did not destroy this right of action for damages, but it provided that an injured person was not to be entitled to damages as well as to compensation under the Act. The remedies, in short, are not cumulative, they are alternative. But when the Workmen's Compensation Acts disappear, as they will do in the case of persons injured after the day appointed for the commencement of the new national insurance schemes—which I anticipate will be some time in July of next year—the Courts would be faced with the problem, if provision were not made for it by this Bill, of what is to happen in the case of a person who has been injured by the negligence of another person in such circumstances that he has a right of action for damages, while at the same time he is entitled to receive benefit under the National Insurance Acts. Are the remedies to continue to be alternative or are they now to be cumulative? If they are to be cumulative, is the injured person to be entitled to recover damages in full notwithstanding the benefit that he has received, or may become entitled to, under the National Insurance Acts?
Your Lordships will remember that this matter was most carefully and thoroughly considered by a Committee under the Chairmanship of Sir Walter Monckton which reported in July, 1946, and the present Bill is intended to deal with the recommendations contained in that Report. As I have said, the central problem of this Bill is that of alternative remedies, and I therefore think the House would prefer me to deal first with this matter, which is covered by Clause 3 of the Bill. After giving the matter the most careful and anxious consideration we have come to the conclusion that the fairest way of dealing with the matter is that which is proposed by Clause 3— 1185 namely, that an injured person should be entitled to receive his national insurance benefits in full and that he should also be able to bring an action for damages in any case in which he may allege that some other person was responsible in law for his injury, but that in assessing any damages which may be awarded to him, the Court should take into account, against any loss of earnings or profits which may flow from the injury, one half of the insurance benefits which the man has received, or which he probably will receive, during the five years from the time when the cause of action first arose.
There is here a problem which may be looked at in either of two ways, and I confess that I find that the arguments on both sides fairly evenly balance. You may think, as did the majority of the Monckton Committee, that if a man receives insurance benefits in respect of an injury, the whole of those benefits should be brought into account and set off against: any damages which the injured man may be able to recover from the person who has caused, or is responsible for, the injury. You may, on the other hand, think, as the trade union representatives on the Monckton Committee thought, that damages should not be affected by any insurance benefits which may be received, and that the injured man should be able to recover his damages and his benefits in full. The argument for deducting the whole of a man's insurance benefits from his damages is based on the principle that he should not be able to recover, by way of damages and benefits, more than the maximum which he could have recovered from either source alone. The basis of damages in a civil action, it is said, is compensation for actual loss, so that if an injured man loses £5 a week in earnings and gains £2 a week in benefit, his actual loss under this head is not £5 but £3 a week. This is the view which commended itself to the majority of the Monckton Committee.
On the other side, it is argued that insurance benefits are something to which the injured person has a right, quite apart from any damages which he may be able to recover because they are part of an insurance scheme to which he, himself, has contributed and because any other course would in some degree enable the wrong-doer to benefit from the fact that the man he has wronged happens to have an insurance covering the risk. Those 1186 who take this view point to the fact that a Court in assessing damages takes no account of any sum which may have been received under a private contract of insurance, which is regarded as due solely to the prudence and foresight of the injured person and as in no way affecting the liability of the wrong-doer. While this argument may be strong in a case where the defendant is not the employer of the injured party, and so has made no contribution towards the insurance benefits which that party has received (save as a taxpayer), it is much weaker in employment cases where the defendant himself has contributed roughly one half of the contributions from which the injured person is drawing his benefit.
Moreover, in so far as this argument relies on the view that a wrong-doer should not be allowed to benefit from the existence of a scheme of national insurance, it is, of course, based on a fallacy and ignores the fact that civil damages are intended as compensation to put the injured party, so far as may be, in as good a position as he was before the injury took place—they are not intended as a penalty for wrong doing.
In recommending that benefits should be taken into account in assessing damages, the majority of the Monckton Committee took the view that damages should be regarded as a whole and that no distinction should be drawn between damages attributable to loss of earnings or profits and those awarded for the injured person's pain and suffering. They did this, as I understand it, on the grounds, first, that some types of insurance benefit, such as disablement benefit, are intended to provide compensation for injuries, even though those injuries involve no financial loss, and, secondly, because they considered it unreal to split up damages which should, they thought, be regarded as a whole, and as being the sum representing what the Court considers fair compensation for the whole of the effects of the injury. Finally, they thought that if benefits were only to be set off against the element in damages awarded in respect of financial loss the result would be an encouragement for litigation. My Lords, I have given the gravest consideration to these arguments and, I confess, I am unable to agree with them.
I am completely at one with the Monckton Committee in their desire that 1187 a sum of money to be awarded by way of damages should be awarded as a whole and should not necessarily be split up into various heads. It would, in my view, be most unfortunate if a Judge or, still more, a jury were to be called upon in every case to say the exact mathematical formula by which a decision was arrived at since, as we all know, this decision is not capable of any precise measurement. The Bill, therefore, provides that it is not necessary to specify the gross damages before the deduction has been made or the net damages after the deduction, nor is it necessary to specify the amount of the deduction. The Bill, therefore, does not offend against this canon which the majority of the Monckton Committee approve.
No doubt it is true that if a person is entitled to receive insurance benefits and at the same time to bring an action for damages where he thinks he can establish negligence, it is likely that there will be a greater number of Common Law claims than is the case under a system where the claim to compensation and the Common Law action are alternatives, but I cannot regard this as a sound reason for rejecting an injured person's right to recover damages for the pain and suffering which he has been caused, if it is otherwise just that he should be allowed to recover. On these points I prefer the views which were put forward by Mr. Beney, the legal member of the Monckton Committee, when he said:I would allow no deduction from the proper sum awarded for the suffering, mutilation, disfigurement and loss of enjoyment and expectation of life. Such sum ought to be paid in full, even at the risk that the unfortunate victim might in the end, when he had received the benefits under the scheme, get rather more than he would to-day. It is better to err on that side.My Lords, as a result of considering the arguments on both sides, which I have outlined to your Lordships, the Government have come to the conclusion that, whilst there is no solution of this problem which is not open to criticism at some point, the compromise which the Bill proposes is the most satisfactory answer. No doubt it may be said that the five years' limit in respect of which benefits are to be taken into account is difficult to justify on strict grounds of logic. On the other hand, there is a very 1188 practical reason for limiting the number of years to five which will, I venture to think, commend itself to those who have had experience of the practice of the Courts in matters of this kind. There is undoubtedly some foundation for the view that in assessing damages, a Court is apt to pay more attention to a clearly defined sum, like a pension for fife, than to the rather vague idea of loss of earnings over an indefinite period and it may make an unduly large reduction in damages in consequence.
I should think that what we all desire is that in the really serious cases, the effect of which would extend over a long time, the quantum of damages awarded should err, if at all, on the side of generosity, but that in the smaller cases the necessary deduction should certainly be made. It is moreover the fact that it is very difficult to peer into the indefinite future and to make deductions based on the expectation of what may happen after five years have passed. At the present time where loss of earnings which has occurred are usually mentioned as a special item of damage but where the period is vague and difficult to forecast, the loss is usually left at large as part of the general damages and it is precisely in this type of case that the risk of undue deduction from damages arises.
It would not be proper for me, at this stage, to invite your Lordships to consider the details of the manner in which damages are to be assessed, but I think that I should say that the Government consider that no deduction from damages should be made in respect of the death benefits payable under the National Insurance Acts. Here again we have departed from the view put forward by the majority of the Monckton Committee who, quite logically no doubt, considered that death benefits should be taken into account against damages, just like any other form of benefit. We think, however, that this would be wrong. Under the existing law, no account is taken of a widow's pension in assessing damages, and no account is taken of insurance monies when a Court is deciding what loss his dependants have suffered as a result of the death of the bread winner of the family. The total sum which will be involved as a result of ignoring the death benefits will not be large and I cannot believe that it will be seriously 1189 contended that this is not the right course to follow.
Now, my Lords, I have to turn to the two quite different subjects which are dealt with in the first two clauses of the Bill. By Clause 1 it is proposed to abolish the doctrine of common employment. It is interesting to note that it is more than fifty years since Mr. Asquith, as Home Secretary, in 1893, introduced a Bill to abolish "common employment." I am glad to be following in his footsteps, though it is after a considerable lapse of time. I have no doubt that most of your Lordships will be familiar with the doctrine. Perhaps, however, I may briefly remind your Lordships of the history of this remarkable doctrine. It originated in the year 1837, in the case of Priestly versus Fowler, in which it was decided that a servant who had been injured owing to the overloading of a van by a fellow servant, could not maintain, an action against his master. The reasons tor this decision were obscure, but some twenty years later, the doctrine was upheld by your Lordships' House and was justified on the basis of implied contract by the workman.
Lord Cranworth explained it, in this way:When several workmen engage to serve a master in a common work, they know, or ought to know, the risks to which they are exposing themselves, including the risk of carelessness from which their employer cannot secure them and they must be supposed to contract with reference to such risks.This view may perhaps have been tenable in the laissez-faire economy which prevailed in the middle of the nineteenth century, but whether or not there was any justification for the doctrine of common employment at that time I do not think that anyone who is familiar with its practical application to-day can be found to defend it. The doctrine has been subjected to a barrage of criticism in recent years, coming from Judges and textbook writers, and I cannot believe that if your Lordships' House were free to consider it afresh to-day, without being bound by previous authority, the doctrine would have the slightest chance of survival. In a case which was decided in this House in 1939 the noble Lord, Lord Macmillan, described this theory of the implied acceptance of risk by a workman as a sheer fiction, and said: 1190Whatever validity these grounds may have possessed a hundred years ago, it is manifest that in these present days of large-scale industry they have no foundation whatever in fact.And the noble Lord, Lord Wright, spoke to the same effect when he said:I cannot help regarding the doctrine as an arbitrary departure from the rules of the Common Law based on prejudiced and onesided notion of what was called public policy and sanctioned by no previous authority.As the result of the acceptance of this doctrine all the Courts have been obliged to decide whether any given case fell on one side or the other of the line, the broad principle being that two workmen—if the doctrine is to apply—must be engaged in common work, and most ingenious, subtle and learned distinctions have been drawn. Thus, if a bus runs into another bus on the highway, both buses being owned by the London Passenger Transport, the doctrine would not apply, in spite of the fact that the conductor of the leading bus and the driver of the bus behind which runs into it are servants of the same master. Their employment would not be regarded as a common employment. But if the same thing were to happen with two trams a different result would be arrived at, since the trams run on lines and are not capable of lateral deviation from their course. If, on the other hand, the two buses run into each other, not, on a highway, but in the approach to the garage, then it is probable that the doctrine would apply in such a case.
I feel deeply sorry to deprive members of my profession of an opportunity of sharpening their wits on points of this sort, but I think the time has come to bury this misconceived and unfortunate doctrine once and for all. It is perfectly true that recent decisions of the Courts have sought to cut it down and to limit it, but it still applies between workmen working together on the same job, which is just where it is most likely that one man will be injured by the carelessness of another. It may possibly be said that to repeal the doctrine at this time will place an undue burden on. industry just when it is being asked to do everything possible to capture foreign markets, but I cannot believe that here is any substance in this argument. Such extra liability as there may be will be passed on to insurers, and I cannot believe that the small extra charge on industry which 1191 will be created should outweigh the advantages to be derived from the removal of an injustice which has for long been a bone of contention between master and man.
To balance any extra burden on industry which may result from the abolition of the doctrine of common employment, the Bill proposes to remedy what may be thought to be an injustice to employers under the existing law relating to the safety of their workers. The Monckton Committee pointed out that under the Coal Mines Act, 1911, an employer who was sued for breach of the obligations imposed by that Act could plead that it was not reasonably practicable for him to avoid or prevent the breach, but under the Factories Act, which is the other principal Act which creates statutory duties affecting workmen in their employment, there is no such limitation on an employer's liability, and once a breach of any of the statutory duties imposed on him by that Act is established, he can be held liable in damages, regardless of the fact that the contravention or non-compliance with the terms of the Act is due to causes over which he had no control, and against the happening of which it was impracticable for him to make provision. There seems to be no good reason for the continuance of this definition, and it is accordingly proposed that where any Act of Parliament, or any regulation made under it, imposes a duty for the protection of work people, the defendant to an action for damages shall be entitled to put forward the same defence as he could have, for instance, under the Coal Mines Act, 1911. Your Lordships will notice that the new defence is limited to Statutes which are designed for the protection of workmen. There may be cases where Parliament has decided as a matter of deliberate policy that it is in fact desirable to impose an absolute obligation in the case of certain duties. If there be such cases we do not seek to interfere.
As a result of this review I hope your Lordships will consider that this is substantially a non-controversial measure, conceived, as I believe, on sound lines, which carries out much needed reforms in a difficult branch of the law, and which at the same time provides a just and fair solution of the problem of alternative remedies. I have myself given very much 1192 thought to this matter, and discussed it from all angles, and I can confidently commend this Bill to your Lordships as being a satisfactory solution of this problem. I beg to move.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 4.28 p.m.
§ VISCOUNT SIMON
My Lords, I rise to state on my own behalf—and I believe this is the view held by others in the House who have had legal training—that this Bill should be heartily commended. It is a lawyers' Bill. Some laymen, perhaps, would be inclined to say, even after the noble and learned Viscount's very clear exposition, that it is rather a technical Bill. It is gratifying to see that we have a reasonably full House and, if I may say so, I am particularly glad to see on the Cross Benches, as is proper, a number of members of your Lordships' House who are Law Lords, and who, according to what I think is a good convention, do not take part in matters of political controversy, but who, of course, are very fully informed from their experience as Judges of the matter with which we now have to deal. I remind myself that Sir Walter Scott, who was himself an advocate and a practising Judge, spoke on one occasion of "the irksome and even hateful profession of the law"; and he found a better occupation for his talents. But, if your Lordships will show your usual indulgence, I would like to say a few words, because I, too, have perforce had a good deal of familiarity with this difficult subject in the past.
Though this Bill appears to be a Bill of interest to legal specialists, it in fact deals with the rights of millions of ordinary citizens. In particular, it seeks to provide a just basis for settling the compensation that can be claimed and ought to be paid where a workman is injured at his work. If I may, in the short time to which I will try to limit myself, I will take the three topics in the reverse order; indeed, I adopt the order which is found in the Bill. The first topic dealt with in Class I is the abolition of the doctrine of common employment.
I agree with everything which the Lord Chancellor has said as to the desirability of putting an end to that doctrine. As a humble mute who. attends the funeral service, I am very happy, my Lord Chan- 1193 cellor, to join you as chief mourner. In point of history, it really is a very remarkable doctrine, and it is of some interest to dwell upon it for a moment. It is not the result of Statute at all; it is not that Parliament has ever so enacted. In the year in which Queen Victoria came to the Throne a learned Judge delivered, though I think somewhat obscurely, the decision to which the Lord Chancellor has referred.
It is hardly worth while spending time on arguing small points of legal history, but I myself should have said that the idea there was an implied contract which denied to the fellow workman the right to get compensation from his employer when another employee was negligent and damaged him, was really enunciated first of all in the Courts of America. There was a well-known Chief Justice, Chief Justice Shaw of Massachusetts, who delivered an elaborate judgment in which he explained this doctrine of an implied contract. Of course, there is not an implied contract at all. May I give your Lordships a perfectly simple domestic illustration? If one could conceive that any of your Lordships were in the position at this moment to have both a cook and a kitchen-maid—I am obviously dealing with times past—the doctrine would have this effect. If the cook by negligence poured boiling water over the kitchen-maid, the kitchen-maid could not claim compensation from you, the employer, although it was your servant, the cook, who had done it because, said the law, when the kitchen-maid entered your employment she knew you had a cook, and knew that she would be working alongside her in the same job of preparing your dinner. Therefore, the kitchen-maid (though she never said so, and you never said so), entered into an "implied" contract with you that if the cook did pour boiling water over her she could not claim damages from you. That is, in fact, the doctrine which has thus gradually been evolved.
Some of us in recent years have made the most manful efforts, so far as the rules of the law allow, to cut down the doctrine, and nowadays—and I think the Lord Chancellor will agree with me—we have at least qualified the doctrine as between two fellow servants. You cannot deny one servant his claim for damages against his employer when a fellow servant is negligent and damages 1194 him, if the two servants are not engaged on the same work. If you did not have some such limitation, in a large-scale industry—I speak particularly to the noble Lord, Lord Walkden—you might have two men at the opposite ends of a railway system, having nothing in the world to do with one another, and none the less the railway company would have a defence under the head of common employment.
But we have succeeded—I hope strictly within the proper limits of judicial interpretation—in establishing now that the two people must be engaged upon what we call "common work." There was decided in this House, in my time, as the Lord Chancellor has said, that it a bus runs into another bus on the high road—both buses belonging to the Corporation of Glasgow—that is merely a road accident, and therefore the injured workman on the one bus. may get compensation from the Corporation, notwithstanding he was hurt by the negligence of a fellow servant. But when it conies to a Corporation tram losing control of itself and backing into another tram, the conductress of the tram who is hurt is bound by an "implied contract" when she entered the service of the Corporation, that she would not hold the Corporation responsible for the negligence of the tram driver who was careless. It is really high time we got rid of this. I can assure you that nobody is more willing to get rid of it than those who, in recent years, have had to do their best to administer the law on this subject.
I recollect reading in early years a passage in Sidney and Beatrice Webb's History of Trade Unionism on this subject. It is quite a short passage but it puts the point of view with extraordinary clearness and brevity. What the Webbs wrote in their book, at page 350, is th:.s:By the Common Law of England a person is liable for the results, not only of his own negligence, but also for that of his servant, if acting within the scope of his employment. The one exception is that, whereas to a stranger the master is liable for the negligence of any person whom he employs, to his servant he is not liable for the negligence of a fellow servant in common employment. By this legal refinement, which dates only from 1837, and which successive judicial decisions have engrafted upon the Common Law, a workman who suffered injury through the negligence of some other person in the same employment was precluded from recovering that compensation from the common employer 1195 which a stranger, to whom the same accident had happened, could claim and enforce. If by the error of a signalman a railway train met with an accident, all the injured passengers could obtain compensation from the railway company; but the engine driver and guard were expressly excluded from any. remedy.This means from the railway company because, of course, they could sue the signalman—What the workman demanded was the abolition of the doctrine of common employment,' and the placing of the employee upon exactly the same footing for compensation as any member of the public.Ever since I began to study the law I have thought that that was a just reform which ought to be made, and I am very glad to be taking part in the making of it now.
My noble friend referred, and rightly referred, to the Liberal Bill. I think it is not right that we should omit a reference to it. Mr. Asquith, when he was Home Secretary in Mr. Gladstone's last Government in 1893, introduced a Government measure, the Employers' Liability (Amendment) Act, to abolish the defence of common employment. I will not read it, but if anybody wants to see in perfectly pellucid language the doctrine of common employment analyzed, described and also slightly ridiculed, it really is worth while turning to that great master of English to see how Mr. Asquith explained the matter to the House of Commons on February 20, 1893. The Bill came to grief. I will not raise any ancient wrongs by saying how it came to grief, but at any rate it did not pass both Houses.
I have had the interest to look up the actual Bill because I am going to submit to the Lord Chancellor—only for his consideration, because he knows I most heartily support him in this Bill—that really Mr. Asquith's Bill put his first Clause 1n clearer terms than the draft we have before us. I know what drafting difficulties are, and the clause proposed has accomplished what is desired. But I cannot help thinking that not everybody will understand it the first time they read it. This is it:The common employment of two persons shall not affect the liability to one of them of a third person for anything done or omitted by the other.I think I may safely offer a small prize to those noble Lords who can explain what that means at the first hearing.
1196 Now take Mr. Asquith's words:Where … personal injury is caused to a workman by reason of the negligence of any person in the service of the workman's employer, the workman, or, in case of death, his representatives, shall have the same right to compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work.Those words are very easy to follow the first time they are read. I suggest to my noble and learned friend for consideration—I do not know whether his draftsmen looked at Mr. Asquith's Bill—that possibly this clause could have been slightly more clearly expressed. It means exactly the same thing. But there is a great deal to be said for writing out our Statute Law in a way that he who runs may read.
There is one other observation I would venture to make—and again I put it purely as a respectful suggestion to the Lord Chancellor. Mr. Asquith's Bill included this provision, that having abolished the doctrine of common employment, there should not be any contracting out of that abolition. That is to say, the employer could not say to his workman "I will subscribe to your benefit fund; won't you sign this document saying that if you get injured you will not object to allowing me to raise this defence in Common Law?" Mr. Asquith's Bill expressly provided that that should not happen. It is in Clause 4:A contract whereby a workman relinquishes any right to compensation to himself or his representatives for personal injury caused to the workman by reason of the negligence of the employer or of any person in the service of the employer, shall not, if made before the accrual of the right, constitute a defence to any action brought for the recovery of such compensation.That is the well-known principle that, when Parliament lays down that there shall be a certain form of protection given to the injured, it shall not be open to the party that may have to pay to make a private contract with the individual, perhaps rather tempting his acquiescence by one means or another—not dishonourable but none the less exceptionable; therefore, a workman cannot contract out of his rights. I invite my noble and learned friend to consider whether something of that sort is not wanted here. There have been cases in which we have had legislation of this sort and where it has been possible for the employer to contract out 1197 with the workman. I think that was in the Act of 1880. That is all I wish to say on the first head.
As regards the second head, which the Lord Chancellor has very clearly explained, I must say I think the provision is only just. It is no doubt in the interests—if you can speak of interests in this matter, for we all want to do what is just and right—of the employer. This is the provision:… a person shall not be liable, in an action for breach of statutory duty, to damages for personal injuries or death, if it is shown that it was not reasonably practicable to avoid or prevent the breach.The way the matter stands now is this, that if you have a statutory duty, for example, a duty to fence dangerous machinery, cast on the employer and if in fact—it does not matter what the circumstances are—the statutory duty has not been completely complied with, no amount of proof by the employer as to how careful he or his manager was, will help him. He is liable absolutely, without the smallest possible loophole of escape.
The workman who was injured in such a case has his rights, of course, and I am very glad he has, under what is now the Workman's Compensation Act, and when it comes into force, the Industrial Injuries Act. It does not seem to me to be reasonable or right, if it is proved by the employer that he has done everything that he reasonably could to comply with the regulations, to say to him: "You have none the less got to pay damages because in fact the regulation was not absolutely observed." The failure may have been due to a pure accident, something that happened suddenly which was beyond the employer's control, and yet the employer is liable. I agree with the Lord Chancellor in thinking that that is too stiff, especially in the light of the compensation which the workman will be entitled to get independently of this right under Clause 2.
I will be very brief about Clause 3, which again the noble and learned Viscount has fully explained. I think it was the noble Marquess, Lord Reading, and I myself, who in this House raised more than once this question: How are the Government under this new National Insurance (Industrial Injuries) Bill going to deal with this frightfully difficult question called "alternative remedies"? As the Lord Chancellor has explained, 1198 under the Workmen's Compensation Act you have a clause dealing with alternative remedies. The workman may often have or, at any rate, may think he has, not only a right under the Workmen's Compensation Act to weekly compensation on the scale provided—or, if he is killed, provision for his widow—but also, quite independently of that Act, a claim against his employer at Common Law. Nobody has ever said under the Workmen's Compensation Act that he ought to be able to get both remedies; and that, of course, is right.
There was this provision made, that if he started an action against his employer for damages at Common Law and he failed because he could not prove negligence, none the less he was not denied all compensation but he could then and there ask the Judge who tried the case to say that he could get compensation under the Workmen's Compensation Act. That has happened in dozens of cases, and of course is perfectly just. What is the change that is taking place under the Government's new Law Reform (Personal Injuries) Bill? Amongst other things it is this: Whereas under the Workmen's Compensation Act, the compensation had to be paid by the employer and by nobody else—it was just his business to pay; he was sued in the County Court or at arbitration, and had to pay—now, of course, the compensation has to be paid out of a fund to which three people contribute. The workman, I think, contributes 5/12ths, the employer another 5/12ths, and 2/12ths come from the State. It does seem to me that in those circumstances it is perfectly right for the Lord Chancellor to propose, as he does in Clause 3, some sort of compromise.
If the workman succeeds in his action against his employer at Common Law, he will get a lump sum from the jury, if there is a jury, or if not from the Judge who is dealing with it as a matter of fact. Is he to get that lump sum without any regard to the fact that he is also going to get, under the national scheme, some more compensation? It does not seem to me to be right that he should get the lump sum without regard to that, and the question is by what method and how far should the lump sum be reduced on that account. I think this is one of the cases where the Government have very sensibly adopted the language of the Unjust Steward who said: "Sit down 1199 quickly, and write fifty per cent." I do not think you will get a better solution. The provision is, as your Lordships see, that, when the jury are assessing the lump sum which the employer is to pay to the injured workman, they must take into account the fact that he has also got compensation coming to him under this new scheme. So you should take one half of the benefit that he would get from that and a number of other benefit schemes for the five years beginning from the accident and deduct it. It is extremely speculative. You do not know that he is going to live for five years; you do not know that he is not going to pass out of industry; a woman may get married and pass right out of industry.
It is obviously a shot in the dark, but juries under well-qualified Judges constantly have to arrive at a figure which may be regarded as a shot in the dark. The jury have to assess the particular value of a broken heart, or rather the particular compensation which should be given in breach of promise cases; they have to assess the amount of compensation which should go to a man who has broken his leg, or perhaps has contracted some obscure disease. That is what juries are for, and there is nothing better for that purpose, in my humble judgment, than a collection of twelve reasonable citizens who take their work very seriously, and honestly try to arrive at a fair figure. I do most warmly agree with the noble and learned Viscount the Lord Chancellor—and I think some of my noble and learned friends who have great experience in this matter also agree—that it is absolutely right to say that you are not going to ask a jury to give you a lot of separate figures and then work out the result. They are extremely likely to be right in the conclusion, but, if you put twelve people together in the jury-box who have to settle unanimously each of the component factors, it is likely that you will be able to pick a hole in one of those factors and produce a great deal of complication and delay.
I will not say any more on the subject now, except to congratulate the noble and learned Viscount who has had the opportunity of introducing this Bill, on doing so. When it is passed, it will effect a real change in the law which will be to the advantage of great masses of our fellow 1200 subjects. It will knock on the head one of the doctrines under which I have suffered ever since I was called to the Bar. I am delighted that the occasion has now come when we can see these useful changes made in the law of the land.
§ 4.53 p.m.
THE MARQUESS OF READING
My Lords, it requires a certain temerity for a mere member of the Bar to discourse to your Lordships' House on so esoteric a subject as is contained in this Bill, particularly in the presence of what I may call, without offence, the massed bands of the Lords of Appeal in Ordinary. My only comfort is that, although it is certainly open to your Lordships to move that I be no longer heard, they can no longer order me peremptorily to sit down. I would join with the noble and learned Viscount who has just spoken in commending this Bill to your Lordships' House, and in congratulating the noble and learned Viscount on the Woolsack in being instrumental in introducing it to this House. As has been said, it is, to a large extent, technical in form, but in concept it is both a valuable and an important measure containing possibilities affecting a very large number of people. Anybody with any experience of the Courts knows how large a portion of the time available is taken up with cases of this kind.
The Bill is based, to a considerable extent, upon the recommendations of the Monckton Committee, and, if I may say so, it is clear that that Committee, which conducted prolonged deliberations, arrived at a careful, comprehensive and valuable Report. As regards the actual contents of the Bill, the first clause, which deals with common employment, is one which I think will be welcomed by anybody who has ever had any contact with the law, as removing a defence which nobody greatly relished putting forward, because it had become a fiction and a fiction which, in the course of time, was becoming increasingly transparent and unmaintainable. In these circumstances, to attempt to maintain a fiction of that kind adds neither to the stature nor to the prestige of the law, and it is best that it should depart at the earliest moment. Before I pass from common employment, I would add one word to what the noble and learned Viscount has just said on the 1201 matter of contracting-out. He was good enough to let me see the report which he had of Mr. Asquith's speech upon the Bill which he introduced, and it is perhaps not wholly without interest to note that, by a coincidence, the report of his speech in the Hansard for 1893 appears in column 1947, so we have at last spanned the intervening numbers!
The second clause contains, I think, a useful addition to the law by giving a further licence in the matter of statutory defence. The noble and learned Viscount on the Woolsack has not, if I may say so, attempted to defend as logical the third aspect of the Bill, which deals with damages, and rightly so, because I do not think it would be possible to put up a defence for it on purely logical grounds. But, on the other hand, the law in the last resort deals with human beings in their corporate or in their personal capacity, and with their relations one with another. Human beings are apt not to be very logical in themselves and, consequently, not very logical in their relations one with the other. Perhaps the best law is not the most logical law, but I agree that in this clause a compromise has been arrived at between the various conflicting views which I think will receive general commendation as being fair, taking into account all the various factors to which consideration has to be attached. I say no more except again to express to the noble and learned Viscount on the Woolsack general thanks for having taken the opportunity to fill a gap of which we were very conscious when we were discussing the National Insurance (Industrial Injuries) Bill, and to fill it as adequately as it is filled by the present Bill.
§ 5.0 p.m.
§ LORD PORTER
My Lords, the "massed bands" do not propose to blow a long, strident or Lord note, but they do welcome this Bill and the form which it has taken. They welcome the first portion because it enables them to avoid those subtle distinctions which the law always endeavours to avoid if it can but is sometimes compelled to take, not owing to its own inherent weakness but because of the complications of nature. In the second place, one welcomes the proposal to protect against an enforced possibility which sometimes makes people pay for that for 1202 which they are in no sense responsible. I understand that the noble and learned Viscount is dealing with one aspect of the matter, and I need not refer to it further. With regard to the final matter with which the noble and learned Viscount dealt, as he said, in the case of an ordinary accident no account is taken of insurance, and no account is taken because the insured person may or may not insure himself—pay the premium. In this case, however, the workman does, to some extent, pay his own premium and, to that extent, he should have the advantage which those who pay a premium have. In so far as he does not pay a premium, then he should not have that advantage. In so far as the State or his employer pays the premium, you have got to deal with it somehow, and the least complicated the way the better. It has been done rather by the rule of thumb, which, after all, is the way in which juries arrive at their results. They arrive at them by general considerations, without any very logical method of reaching their conclusion. That is what has been done for this Bill. Certainly any Court of Appeal must be anxious that the matter shall be decided on some general principle and not on refined complexities with which they would have to deal. My Lords, I commend the Bill.
§ 5.3 p.m.
§ THE LORD CHANCELLOR
My Lords, I will not detain your Lordships for more than a moment. I rise merely to thank your Lordships for what has been said, and to confess that it is rather an unusual experience for me to introduce a Bill and find that I get applauded from all sides of the House. I hope that is an omen of good things to come. With regard to the specific points that have been raised, I shall gladly consider, as the noble Viscount, Lord Simon, suggested, the wording of Clause 1 and compare it with the wording of Mr. Asquith's Bill. I am afraid I had not taken the trouble to look up the wording of that Bill. It may be that that is better, and I shall not necessarily adhere to this wording if I find that that wording is better, more especially because this wording is that of the draftsman and not of myself. The point about contracting out seems to me a substantial point, and I will gladly look into that if it is necessary. I am inclined to think that we ought to 1203 put in an express provision to deal with it.
With regard to Clause 2 of the Bill, I hope I did not mislead your Lordships in what I said. That is the clause which provides that, so long as the employer can show he has done everything possible, he would have a defence, because the clause applies, of course, to every Act of Parliament which is designed wholly or mainly for the protection from personal injury of persons engaged in any work or works. If—and I have not got anything in mind at the present time—there is some Act which does not come into that category which imposes a duty, then, of course, that case would not be dealt with by Clause 2, because Clause 2 is limited to those Acts of Parliament which are designed for that purpose. As to Clause 3, I confess that when I was Minister of National Insurance I saw this problem looming ahead of me, and I considered it was going to be a very difficult one. My successor in that office, the present Minister of National Insurance, has, with his predecessor, given a great deal of time and trouble to this matter. We have collaborated together, and it is very satisfactory to me, as I am sure it is to him, to know that your Lordships approve our efforts, and I am very grateful to your Lordships.
§ On Question, Bill read 2a and committed to a Committee of the Whole House.