HL Deb 24 June 1948 vol 156 cc1230-43

[The references are to Bill 31.]

In the Title: Page 1, line 2, leave out from ("relating") to ("to") in line 3.

Clause 2, page 2, line 3, leave out Clause 2.

Clause 7, page 3, line 41, leave out ("sections one and two") and insert ("section one").

Clause 7, page 3, Line 45, leave out ("three") and insert ("two").

4.32 p.m.

THE LORD CHANCELLOR

My Lords, I beg to move that this House do agree with the Commons in their Amendments. Your Lordships will forgive me if I take a little time, but I think I owe it to you, and I owe it to myself, to make plain what has happened since we last had the Bill in this House. Your Lordships will remember that there were three material provisions of the Bill. The first was the provision in relation to common employment, to put an end to that ancient and rather discredited doctrine. The second provision altered the existing law, replacing the absolute liability which exists to-day by a more qualified liability—namely, that the person in charge of the factory, the employer, could escape from his liability if he showed that he had taken all possible steps to make the machinery safe. The third, and much the more complicated question, arose with regard to the measure of damages. On the latter question, no point now arises, and on the first question no point arises. But when we passed this Bill the second provision was included. It was put in because it was the unanimous recommendation of the Monckton Committee. Your Lordships will bear in mind that that Committee, as constituted, contained representatives of the employers and representatives of the Trades Union Congress.

The Committee recommended this alteration in the law of absolute liability, and I commended the matter to your Lordships in these words: 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 a breach, but under the Factories Act…there is no such limitation on an employers' liability, and…he can be held liable in damages, regardless of the fact that the contravention or non-compliance…is due to causes over which he had no control.… There seems to be no good reason for the continuance of this distinction. As so often happens, I used rather unfortunate language when I said "to balance," because that has conveyed the impression that there was some kind of Parliamentary deal being done about this. Of course that is not the fact at all. Those of your Lordships who read the Report of the Monckton Committee can easily satisfy yourselves about that, because the recommendation in regard to the abolition of the doctrine of common employment was not unanimous and the employers' representatives dissented from that. It was not, therefore, a case of any deal being done.

It was the fact—and this is what I meant by my phrase—that the Bill, as introduced to your Lordships' House and as recommended by me, contained a first clause which would naturally be welcome to the workers, and a second clause which would naturally be welcome to the employers. In that sense there was a balance, but there was no balance in the sense of a deal. Everybody will agree with that. I confess that I had not given to this question any comparable consideration with that which I had given to the others because, as I have said, this was an agreed—indeed a unanimous—recommendation of the Monckton Committee. I supported it and commended it to your Lordships. I did not anticipate that there would be any considerable controversy upon this matter. It was only after the Bill had passed through your Lordships' House, and after it had received the amount of notice which was consequent upon that, that this storm arose. When these things happen, either in political life or in ordinary life, you must not, on the one hand, run before the storm, but, equally, you must not be stubborn in adhering to the views which you previously formed, if, on further consideration, you think there is real substance in the objection. I want to suggest to your Lordships now that there is real substance in the objection, which we did not sufficiently consider.

Before I do that, may I just make a statement upon the law as it stands today? There is no doubt that in the lower courts of this country it has been asserted that there is an absolute obligation on the employer, and that whether he can or cannot carry out that obligation, matters not. A circular saw is a good illustration of this difficulty. I am assuming—I do not know, but I should think it is probably the fact—that to make a circular saw absolutely safe is impossible. However carefully you fence it, and whatever design you may introduce, probably there must always be a risk of the worker's hand or the worker's fingers being exposed to danger. So far as the ultimate Court of Appeal is concerned—that is your Lordships' House—the position, however, is different.

I will read, if I may, a passage from a speech made by the noble and learned Viscount, Lord Simon, in which all the other noble and learned Lords concurred, which explains the position so far as the ultimate court is concerned. These are the words: Does Section 10"— that is, Section 10 of the Factory and Workshop Act, 1901,— impose an obligation to provide such a degree of secure fencing for a dangerous machine as makes the machine no longer dangerous at all to a reasonably careful workman, even though this result could only be attained at the expense of making the use of the machine impracticable, and hence, in effect, prohibiting its use altogether? Or is a dangerous machine to be regarded as 'securely fenced' under Section 10 if the fencing protects the workman from danger so far as that can practicably be done, consistently with the machine being used? If the first of these two views were correct, this might amount to a prohibition of the use of circular saws altogether (even saws of the most modern type, such as this one, fitted with the best known safety devices), and I should be extremely unwilling to make the present case the occasion for a final pronouncement on this issue, which is so important to British industry alike in peace and in war, unless this were necessary for our decision. It is not so necessary and I desire to reserve my opinion as to the correctness of the view expressed by Mr. Justice Salter in Davies v. Thomas Owen & Co., which would interpret the section as meaning that 'if a machine cannot be securely fenced while remaining commercially practicable or mechanically useful, the statute in effect prohibits its use.' Then Lord Atkin, Lord Thankerton, Lord Romer and Lord Porter concurred in that statement of law.

I should add this further fact. There has recently been a decision in the Court of Session in Scotland in which a man was injured when an overhead belting broke in two. Part of the belting came down and struck the man working on the bench; and the Court of Session held that there was not a breach of the obligation to fence securely. What happened in that case was that the machine had got out, rather than the man had got into the machine. I say no more than that, because that case is now under consideration in your Lordships' House. But that was the decision of the Court of Session. Therefore, your Lordships will realise—and I am anxious to discuss this matter fully with your Lordships, as I thought it right that you should know—that there is some doubt (at any rate so far as the ultimate Court are concerned), as to what is the law on this topic. But for the rest, for the purposes of what I am now going to say, I shall assume that there is an absolute obligation. We proposed to qualify that absolute obligation. The Commons rejected our proposal and, on this difficult point, the question is whether they were right or whether we were right.

Let us now consider the proposition. I will take a circular saw as a good illustration. You are dealing with a case where, notwithstanding (and I am assuming this) that all precautions have been taken, a workman's hand is unfortunately hauled in with the piece of wood and he has lost his hand—or perhaps some fingers. On whom ought the loss to fall? Your Lordships will see that I am eliminating the case of negligence on the part of the workman; I am assuming that the fencing is as good as it can be made. On whom ought the loss fairly to fall? It is not a question of avoiding the loss; it is a question as to whether the loss should fall on the employer or on the worker. It is frequently argued that as between those two people, it ought surely to fall on the employer, because he is the man who is using the machines for the purposes of his own profit. Particularly in these days, when a great number of industries are run by the State, I do not think that is a very sound way of looking at it. I think a sounder way is this: that it is open to the employer—as, in practice, he always does—to cover this risk by insurance. It would be much more difficult for the worker to cover his risk by insurance.

On reflection, it seems to me that a risk of this sort, which occurs from time to time, ought to be covered by insurance. That is an argument for placing the risk upon the employer; and it has also been forcibly brought home to me that there is an added risk. The fact that the risk is absolute, and that it is to-day in practice covered by insurance, has this beneficial result: that it is of financial interest to the employer (if of no other interest), to see that his machines are as safe as possible. It is the inspector to the insurance companies who suggests every conceivable improvement that can be made, and the fact that there is this absolute obligation tends to bring the whole thing up to date and tends to bring about the adoption of every conceivable device. Whereas, if you had this put forward as "so far as reasonably practicable," it is said, it is thought and it is perhaps the fact, that the employer might lean back and rest, and might not be sufficiently up to date in his outlook on these matters and rely rather on the fact that it may never happen. That is the first consideration, and I think it is an important one.

I believe that this principle of the Factories Act is a very beneficial principle in our law. I was under the impression that this principle of the Coal Mines Act—the Coal Mines Act, as I have told your Lordships, has the more qualified liability—was generally accepted. But I find that I am wrong about that. There is a school of thought and an agitation in regard to the mines to try to bring them up to the Factories Act standard, to try to get away from the qualification which exists in the mines to-day and bring it up to the absolute obligation under the Factories Act. It is said—and said with some force—that if you look at the incidence of these industrial injuries to-day, including industrial disease, approximately one-half of the total injuries occur in the mines. It is said, and it is thought, that if there were this absolute obligation you might even be able to cut down the accident rate still further, by making people realise that there was an absolute obligation and they could not risk any qualification at all.

There is a third reason which I do not think any of your Lordships had in mind—namely, that this clause in our Bill deals only with civil liability. It said that it was to be a defence to an action for damages that every possible precaution was taken; but it did not deal with criminal liability. The breach of the obligation under the Factories Act with regard to fencing is not merely something which may give rise to an action for damages; it might lead to proceedings in a criminal court. What was said was this: How odd it is that with regard to the civil liability you are giving, as a defence in the civil action, this qualified obligation, whereas under the criminal law the obligation remains unqualified. I can understand the criminal obligation being less strict than the civil obligation, but it is indeed odd that we should have stricter criminal liability than we have civil liability, and this Bill does not attempt to deal with the criminal liability at all. It is quite outside the scope of the Bill.

For all those reasons, when this was pointed out to me, I confess that I went into the matter with much greater thoroughness than I had before because, as I have said, this was a unanimous recommendation to which both workers and employers had agreed. Having gone into it, and having heard the arguments, I say, quite frankly, that, contrary to my previous opinion, I believe your Lordships would do well not to tamper with the existing principle of the law of the absolute obligation, because I believe that the fact that we have an absolute obligation with a very high standard does mean that the tendency is to keep all these machines absolutely up to date, and to adopt every possible device to try to prevent these accidents happening. In the last resort, if these accidents do happen, it really comes down to which of the two sides has to bear the loss. I suggest that on the whole, the existing practice, whereby the loss is borne by the man who can cover himself by insurance, is the fairer and the better proposal. Therefore, my Lords, I beg to move that this House do agree with the Commons in the said Amendments—namely, to delete what was Clause 2 of our Bill and, of course, the consequential Amendments. I beg to move.

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

4.49 p.m.

VISCOUNT SIMON

My Lords, the Lord Chancellor has spoken very frankly to the House and has told us that he has changed his own view as to what is the right thing to do about this matter. It is manifest that he has changed his view, and nobody is to be reproached because, on further reflection, he has changed his view. If he will allow me to say so, I do not think he has presented one side of the matter to your Lordships quite so clearly as I am sure he would wish to do. It really is a little fallacious to say that the question is: On whom should the loss fall? The Workmen's Compensation Act is now being replaced by the Industrial Insurance Act, and the provisions of the Industrial Insurance Act provide most elaborately for the compensation of the workman who meets with an accident in the course of his employment, without any question as to whether the employer is to blame for it. So it is not really the case—if second thoughts were to be preferred—that the workman is left to bear the loss. Nothing of the sort happens. The whole scheme of social insurance, now vastly improved over what it was originally, is designed to secure that a workman who meets with an injury while at work shall be compensated. Of course the Lord Chancellor will be the first to agree with that.

The noble and learned Viscount has been so good as to refer to some observations which I made in a case in which I presided when I was Lord Chancellor. Perhaps I may spend a moment explaining the point. In the Coal Mines Act there are provisions for rules and regulations to be made for the purpose of securing the safety of the miners, and if those rules are broken the liability of the employer is—I speak subject to correction—absolute. If he is brought before the magistrates and prosecuted by the Inspector, it is no answer for him to say: "I did the best I could." That is the law, and no one is proposing to alter it, at any rate by this Bill. But when we come to the totally different question, which is not a question of criminal law but a question of compensation to the individual, then, in respect of coal mines, the law is that for the purpose of meeting the claim against the employer the employer may say: "I am sorry that this regulation has not been, in this particular, precisely observed. I will satisfy you that it was through no fault of mine or of anyone in a position to give directions. It was due either to a pure accident which I could not help—I was not at the bottom of the mine, nor was my manager—or due to some other circumstance which prevented there being a strict and absolute compliance with the rule; and that, I claim, is no reason for making me pay damages."

I hope that I have expressed the law in accordance with the Lord Chancellor's own views. No one could have stated it more clearly than he did on the occasion of the Second Reading of this Bill in your Lordships' House on December 4, 1947. When he spoke in justification of this very clause—Clause 2—the noble and learned Viscount said this. It was pointed out that, under the Coal Mines Act, an employer who was sued (that means of course who was having a claim made against him in a civil court for damages) for breach of the obligation imposed on him under that Act could plead that it was not reasonable or practicable for him to avoid or prevent that particular breach. That did not mean that if the employer was prosecuted before the magistrates he could not be convicted, because, as I understand, in the case of the Mines Act as in the case of the Factory Acts there is an absolute obligation which can be enforced by the magistrates.

But when the coal mines legislation came to be made, it was thought that it was not really fair to the employer that the injured individual should say: "You must pay me compensation as a result of damages in a civil action in any case." Parliament said: "If indeed you are able to satisfy the court that you have done everything which you could reasonably do, everything that was practicable to do, although in fact the regulation has not been precisely observed, that is a defence point." Parliament thought that a reasonable provision to make, and it stood as law.

What my noble and learned friend said on the Second Reading was that there did not seem to be any good ground for saying that that should be the situation in the case of coal mining but should not be the situation in the case of factories. And I confess I thought that what he then said was reasonable. I am sure he will not for a moment suggest to the House that he had not considered the matter carefully. No doubt he has gone into it further since then, as one would expect from any occupant of the Woolsack in dealing with a Bill of this importance. For, be it remembered, though it is very technical, this Bill is of great importance to tens of thousands of people. One would naturally expect that any Lard Chancellor would make it the subject of very careful reflection and, if necessary, of investigation, and no doubt my noble and learned friend has done so.

Now it is a remarkable fact that the Monckton Committee which reported on a number of these matters was never unanimous about any other topic. The members of that Committee did not all agree about getting rid of "common employment." I am one of the strongest supporters of that, but they did not all agree about it. Nor did they agree on the horribly complicated subject of alternative remedies. But that Committee, which, if I mistake not, included the present Minister of Labour, Mr. Isaacs——

THE LORD CHANCELLOR

Only at a very early stage.

VISCOUNT SIMON

That may well be. I do not wish to make any point of that, except to show that the Committee contained trade union representatives of standing. The Monckton Committee had upon it trade union representatives who knew the workers' point of view and it had upon it also people who knew the employers' point of view. There were a number of lawyers upon it. I think Dr. McNair was one, but certainly there were both professional and practising lawyers. Mr. Beney was a member, and there is no better practising lawyer on that particular subject than Mr. Beney. Now everyone on the Committee agreed that this Clause 2 was proper.

I had already read afresh what the noble and learned Viscount the Lord Chancellor said to the House on the Second Reading, and I had made my own emendation. I had written in the margin of the report, instead of "definition" the word "distinction," because I was certain that that must have been the word which the Lord Chancellor used. He said there is no sense in having two different rules for two different classes of cases which are exactly on all fours. I do not want to quote myself, but I followed him. I was a warm supporter of the Bill as a whole, and he expressed himself very kindly about the attitude of myself and others. I pointed out the good sense in this and I said how it seemed to me to be too stiff to say to an employer: "You are not negligent, you have done everything you could possibly do to stop this unhappy accident, you have proved (because the burden is on the employer) that in no possible sense can it be called your fault. You must pay damages for what is called breach of statutory duty, notwithstanding that now there is this elaborate system of industrial insurance and workmen's compensation." I was supported in this view—perhaps I should say the noble and learned Viscount the Lord Chancellor was supported—by the noble Marquess, Lord Reading, speaking from the Liberal Benches, and by the noble Lord, Lord Porter, a Law Lord who has great experience in this class of subject. The noble and learned Viscount ended by saying that he was very glad we all agreed, and he made another reference to Clause 2, making it perfectly plain what he proposed.

I am bound to say for myself that, though I appreciate that the arguments he has now advanced have to be weighed, I still remain of the opinion, not as a lawyer, but as a man who has had a good deal of acquaintance with this class of subject, there was very good sense in the clause as the noble and learned Viscount proposed it in this House. When it had passed in this House, which I think it did in December, it moved to the other House. Then there was a considerable pause. I do not think the Bill was taken on Second Reading in another place until April, and we learn from the noble and learned Viscount in his observations now what I had not known previously, that there was a "storm." I notice that in another place the Minister responsible, the Attorney-General, Sir Hartley Shawcross, was repeatedly asked to explain why the Government had decided to drop the very clause which the noble and learned Viscount the Lord Chancellor had commended to this House with such good reason. He said nothing about a storm. That may have been his prudence, but, taking it from——

THE LORD CHANCELLOR

A storm? That can mean a large number of letters and a large number of deputations. "Great public interest" is perhaps a better phrase.

VISCOUNT SIMON

I think I understand how it happened. At any rate, the result of it was, if I am not mistaken, that upon the Bill coming before the House of Commons for Second Reading, the Attorney-General, in charge of the Bill, before there had been any argument about Clause 2 at all, announced at once that the Government would propose to omit the clause. No argument—but that the Government had reached that conclusion. I am among the first to want to make sure that if machinery is dangerous, it should be made "as safe as possible," but it seems to me rather inconsistent with that to say that the employer has to pay damages even though he has done everything possible to make it safe. That was the reason why I thought that the Lord Chancellor's proposal to the House was right, and was to be preferred to the change which has been made, after the storm, in another place, and made very summarily.

However, I would certainly not suggest to this House that they should start disputing on this matter by sending the Bill back again. I think there is some force in the arguments now addressed to the House by the noble and learned Viscount, the Lord Chancellor. I respect him greatly for having stated so frankly that he has changed his view, and for giving us the reasons for this change. But I must say for myself, trying to get the law of the land in these important matters in the best possible order, that I think it is not the best course to say that an employer is to pay money compensation in a civil suit brought against him by his workman on the grounds of breach of statutory duty, when the employer proves that he has done everything he can to secure that the law is complied with. The fault may be due to the interference of some other person. If the fact is, for example, that the guard of a circular saw (I have tried the kind of case to which my noble friend referred, and for a time I knew quite a lot about circular saws) is the best that can be obtained, is it right that the employer should be made to pay, when he has provided that guard and done everything he can to keep the protection adequate, but where, as it happens, by an accident, the protection has been moved, perhaps to suit some workman's convenience and the employer has exerted himself in every possible way to secure that proper protection should continue to be given? I doubt whether that is a good principle, especially when we have got rid (and I am glad we have) of any idea that a workman should not be compensated if it is nobody's fault. A workman is compensated, and on a very proper scale, if he meets with any injury in the course of his work and no question arises as to whose fault it is.

In these circumstances I feel bound to be frank and candid with the House, because I took part in the shaping of this Bill and was able to suggest how some clauses might best be expressed. I most warmly support the Bill. I only thought it right to put on record that I think there is a great deal to be said for the noble and learned Viscount's original view, but I quite understand why the noble and learned Viscount has taken a different view. I do not want to challenge for a moment the sincerity of his present views.

THE LORD CHANCELLOR

Before the noble and learned Viscount sits down I should like to say this. He and I never differed on what the law proposes. I would remind him that I assented to his proposition with regard to the Coal Mines Act, 1911. I have the Act before me, so I have an unfair advantage over the noble and learned Viscount, and I will read these passages. Clause 102, subsection (3) deals with criminal liability: Nothing in this Act shall render the owner…liable to a penalty in respect of any contravention of or non-compliance with the provisions of this Act if he proves that the contravention or non-compliance was due, to causes over which he had no control and against the happening of which it was impracticable for him to make provision. Subsection (8) deals with the civil liability: The owner of a mine shall not be liable to an action for damages as for breach of statutory duty in respect of any contravention of or non-compliance with any of the provisions of this Act if it is shown that it was not reasonably practicable to avoid or prevent the breach. I do not know if he got it right, but we would both desire that a statement on the existing law should be clear.

VISCOUNT SIMON

I accept that at once. I took my law on that precise point from the speech of the noble and learned Viscount the Lord Chancellor on Second Reading. But I do not want to spend any more time on this matter, except to say that this is a change which I think many people feel is not justified. I do not consider it is a change on which we ought to have any further dispute with another place, because it is obvious, from what the noble and learned Viscount the Lord Chancellor has said, that there has been a good deal in the way of protest or demonstration, wherever it may have come from, and I have no doubt the opinion he has now offered is an opinion the House will not wish to challenge.

5.10 p.m.

THE MARQUESS OF READING

My Lords, having said a few words on an earlier stage of this Bill, I would like to add one or two now, though I hesitate to intervene in what is more or less a private discussion between two Lord Chancellors. The noble and learned Viscount on the Woolsack, perhaps ill-advisedly, as things have turned out, used the earlier mentioned word, "balance." It seems to me that the word "balance," though perhaps not exactly in the context with which he used it, rather aptly describes the situation. When we were first discussing this Bill, the balance was towards approximating this Bill to the existing provisions of the Coal Act, 1911. That balance seems now to have been tilted by invisible forces in the opposite direction, and the balance now inclines towards approximating in some other measure the Coal Act, 1911, to the provisions of this Bill. Like the noble and learned Viscount, Lord Simon, I followed this Bill with some interest in another place and, like him, I was unconscious of the storm that was raging. Observing nobody struck by the lightning which was flashing, I thought the matter had passed quietly. The storm seems, anyhow, to have been off-stage. But it has had its effect; and the position now is that the clause to which we devoted so much attention, and on which we attained so much unanimity, has departed.

I would like to ask the noble and learned Viscount on the Woolsack one question. He has given us, very frankly and characteristically, if I may say so, the arguments which had led him to reverse the view which he had previously expounded to your Lordships. I would like to know—and it might be of interest to other of your Lordships to know—whether the considerations which have now influenced him to change his view were presented to the Monckton Committee during their sittings, and were present to their minds when they drew up their Report.

THE LORD CHANCELLOR

I would tell the noble Marquess if I knew, but I am afraid I do not. Though I did, of course, consider the matter, I think I was rather put off my guard by the fact that this was a unanimous recommendation, to which both the workers and the employers had agreed. I think that that fact prevented me from going into the matter as fully as I otherwise would have done. I do not know what considerations the Monckton Committee had before them.

THE MARQUESS OF READING

I am obliged to the noble and learned Viscount Of course, one is unable to pursue the matter beyond this stage. I confess that I regard the conclusion which has been arrived at as an unfortunate one; but, like the noble and learned Viscount, Lord Simon, it seems to me to be a matter on which we ought to accept the decision of the other place, and to take it no further.

On Question, Motion agreed to.