LAW REFORM (LIMITATION OF ACTIONS, &c.) BILL

HL Deb 01 June 1954 vol 187 cc1061-6

4.7 p.m.

House again in Committee.

Clauses 3 to 5 agreed to.

Clause 6:

Further provisions as to limitations of actions in Scotland

6.—(1) No action of damages where the damages claimed consist of or include damages or solatium in respect of personal injuries to any person shall be brought in Scotland against any person unless it is commenced—

1. (a) in the case of an action brought by or on behalf of a person in respect of injuries sustained by that person, before the expiration of three years from the date of the act, neglect or default giving rise to the action or, where such act, neglect or default was a continuing one, from the date on which the fact, neglect or default ceased;
2. (b) in the case of an action brought by or on behalf of a person to whom a right of action has accrued on the death of another person in consequence of injuries sustained by that other person, before the expiration of three years from the date of that death;

Provided that for the purposes of paragraph (b) of this subsection a right of action shall be deemed not to have accrued to a person on the death of another person by whom injuries have been sustained if that other person or someone on his behalf was not immediately before his death, himself entitled to bring an action in respect of the injuries.

LORD GREENHILL moved, in subsection (1) (a), to substitute "one year" for "three years." The noble Lord said: In moving the Amendment which stands in my name, I should first of all apologise for the lateness of its presentation, but, as your Lordships will remember, on the Second Reading of the Bill on May 20 I was not quite sure of my facts and based my case on my own impressions. This morning I received a letter containing information which makes my position clear and therefore I put down this Amendment. Whatever charges the noble Viscount may be able to make against me, I hope that, after hearing what I would say, the charge of inconsistency will not be one. Indeed, I have been so consistent that, whereas on Second Reading I suggested that there was no need to alter the period of six months' limitation now in operation in Scotland, I will now come a little his way by suggesting that it be altered to twelve months and that the provision in the clause be amended from three years to one year.

I do so on the ground of the experience of the Transport Department in Glasgow. I agree with the noble and learned Lord that it is not a matter in which any principle is involved. As he himself said, there is always an element of the arbitrary in matters affecting limitation of action. It is a practical question rather than one in which abstract principles can be involved. The noble and learned Lord, Lord Reid, himself a Scottish lawyer, said this in the course of the Second Reading debate (OFFICIAL REPORT, Vol. 187 (No. 73), col. 822): I would agree at once that two years is ample—and, indeed, more than ample—for 95 per cent., or even 99 per cent., of the cases that can be raised. Therefore, in asking that the period be altered from three years to one, I do not seem to be asking for much of a concession. In our proper anxiety to do no injury to a person who has, or thinks he has, a claim against a public body there is a danger that we may be imposing a hardship upon public bodies; and it is in order to strike the necessary balance that I put forward this Amendment.

The experience of the Glasgow transport undertaking—the largest in the country, I think—is that they have been faced with difficulties in trying to rebut claims where there has been a considerable lapse of time between the accident and the time of the claim. Moreover, at the present time we are faced with a large turnover in our employees, drivers or conductors, and it often becomes difficult to trace their whereabouts when a case is raised. Then I am told that witnesses of an accident who are asked, a considerable time after the event, to give evidence are often somewhat hazy in their recollection and not so reliable as when they are examined some short time after the actual event. A further difficulty is that in the tracing of accidents the authority are dependent upon the production of the fare ticket to prove that the claimant—or the pursuer, as we call him in Scotland—was, in fact, one of those involved in the accident. The mere storage of the tickets takes up an enormous amount of space and is hardly worth the extra amount of trouble involved. For those reasons, I think there is a good case for extending the period as at present, but limiting the period to no more than one year. I hope that I can persuade the noble Viscount, Lord Hailsham, to accept the Amendment. I beg to move.

Amendment moved— Page 3, line 44, leave out ("three years") and insert ("one year").—(Lord Greenhill.)

VISCOUNT HAILSHAM

I hope that I can persuade the noble Lord to withdraw the Amendment. It is a very startling Amendment—indeed, it is one of the most startling Amendments I have ever seen. But, first of all, let me deal with the arguments of the noble Lord. Of course difficulties face any defendant seeking to prove his case after the lapse of a year. What the noble Lord has not said a word about, however, is why Glasgow Corporation are any worse off than any other public authority in this respect. The effect of the Amendment would be to give potential defendants in Scotland a privilege which English public authorities do not ask for themselves, and which, so far as I know, no other Scottish public authority than Glasgow have suggested. Why should the Glasgow Corporation be in greater difficulty with regard to tracing their employees than, for instance, British Railways? I do not or the Corporation of Birmingham? I do not know. Why should it be more difficult for the Scottish corporations, as a whole, to trace the employees than, for instance British Railways? I do not know. Why should witnesses be hazier when they are called on behalf of public authorities than when they are called on behalf of private employers? I do not know. Nor have we been told. Why is it more cumbersome for an organisation run by a local authority to store fare tickets than for a body owned by the British Transport Commission, or the London Passenger Transport Board? I do not know.

Therefore, I am left completely baffled as to why the noble Lord should have proposed an Amendment which has the effect of giving Scottish public authorities a protection which has been withdrawn from English public authorities after three Committees have reported that it should not be given to anybody. Why is it so much more difficult for Scottish public authorities to defend actions than it is for the Crown in Scotland, which has consented to this change? I do not know. It seems to me that the case which has been made for this particular Amendment falls to the ground of its own inanition.

I must tell the noble Lord, however, that that is the smallest part of the objection to the Amendment. In his anxiety to relieve Scottish public authorities of liability for their own negligence after a year—because all these actions are based on negligence, or breach of statutory duty—the noble Lord has proposed a total revolution of the Scottish law regarding limitation of action. Apart from public authorities, in Scotland, so I apprehend—although I do not claim to speak with authority on Scottish law—there never has been a law of limitation at all. Now the noble Lord comes to this House and suggests that all defendants in Scotland—because that would be the legal effect of the Amendment—should be given the protection of a one-year limitation period, which is shorter than anything else that the Scottish defendant has ever enjoyed in history. As a matter of fact, I should submit that the three or four Committees which have examined this subject have come to a perfectly legitimate conclusion in saying that three years is a proper period of limitation, both in Scotland and in England. There is really no logical reason for a differentiation between the law of Scotland and that of England in this respect. The Tucker Committee heard evidence from Scottish public authorities. My noble and learned friend Lord Reid spoke as a Scots lawyer on this matter. I cannot for the life of me see what there is in Scotland which makes public authorities so anxious to have a privilege which no other public authority is to be given under this Bill, or why Scottish defendants should be singled out for treatment which they have never enjoyed in the history of either English or Scottish law.

These things lead me to say that the Amendment certainly does not meet with my approval, and, if necessary, I shall ask your Lordships to reject it. However, I hope that the noble Lord will not persist in it. I am left to remind the noble Lord of something of which I reminded him on the Second Reading of the Bill; that is, the experience, not of a public authority in Scotland, but of a well known bus company, Scottish Motor Traction, Limited, which I apprehend is not all that smaller in its activities than even the Glasgow Corporation Transport Department. That bus company had the public spirit—which the Corporation Transport Department, I believe, had not—to offer evidence to the Tucker Committee. The evidence which it offered was something quite startling—and the noble Lord, Lord Silkin, will bear me out in this, because he referred in his own Amendment to the statistic that I quoted. The evidence was that over five years only 10 per cent. of the actions brought against the company were raised within nine months of the accident, and 50 per cent. between nine months and one year. That means, assuming that a greater degree of haste is not shown by other plaintiffs, or pursuers, that the noble Lord's Amendment would shut out from the Scottish courts, I think it is, 60 per cent. or 50 per cent. of the potential litigants in actions for personal injuries. This would be a most shocking result to achieve.

I earnestly ask the noble Lord to remember that, when we are talking about this particular Bill, we are talking about people who have been badly hurt in their bodies—so hurt, in fact, that many of them may never be able to work or walk again, and will certainly suffer from incapacity for life. When we talk about the difficulty of storing tickets, in order to make quite certain that the right person has made a claim, because he was there at the time of the accident, we are weighing the inconvenience of storing tickets and the haziness of the recollection of witnesses—hardships which other defendants have had to bear since 1623, in England, at any rate—against the suffering endured by people as a result of negligence of the employees of the Corporation. I am shocked to know that, of all the great cities in the Kingdom, Glasgow should want a privileged position in circumstances of this kind. I hope the noble Lord will not persist in his Amendment.

4.20 p.m.

LORD GREENHILL

Before I attempt to answer the eloquent argument of the noble and learned Viscount, may I, on a question of fact, say this? According to information that I received this morning, the Corporation of Glasgow Parliamentary Bills Committee did, after consideration, recommend that one year be the period of limitation. That recommendation was communicated to the Association of City Councils who, in turn, recommended that period to Parliament. I do not pretend to possess any legal knowledge, and certainly not the skill of presentation of the noble Viscount. Nevertheless, I feel compelled to say that, in so far as there is any difference between the local authority and other public bodies, that difference is often seen in the fact that, because it is conscious of the need for public support in any action it may take, a local authority considers very carefully before doing anything which would annoy any claimant against it. Therefore, the treatment that an injured person would receive from a local authority would, I suggest, be more generous than that which he would receive from a public body. The noble Viscount drew my attention to the fact that in Scotland there was no law of limitation. Again, if I may refer to the speech made by the noble and learned Lord, Lord Reid, he said (OFFICIAL REPORT, Vol. 187 (No. 73), col. 822): But it is apparent that in Scotland the effect is much greater than in England because in Scotland the period for prescription at present is twenty years. It is true that he goes on to say: Of course, it is unheard of that an action should, in fact be brought after any delay of that kind…. I am saying this in order to try and modify the effect of the noble Viscount's arguments. I will only express my regret that he will not agree to, or, shall I say, reconsider, my Amendment. I beg leave to withdraw the Amendment.

Amendment by leave, withdrawn.

Clause 6 agreed to.

Remaining clauses and Schedule agreed to.

House resumed: Bill reported without amendment.