§ An Amendment reported (according to Order).
§ Clause 1 [Extension of classes of dependants]:
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LORD BIRKETT moved, in subsection (2), to insert as a new paragraph:
(a) an adopted person shall be treated as the child of the person or persons by whom he was adopted and not as the child of any other person; and, subject thereto,—
The noble and learned Lord said: My Lords, I can explain in a minute the purpose of this Amendment. It is merely to remove a possible doubt that might arise in future. Clause 1(2) of the Bill makes plain that the adoption of a child shall overrule and override any other relationship. If noble Lords have the Bill before them, they will see that in Clause 1(2)(c) the words "subject to paragraph (b) of this subsection" appear.
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The Amendment desires that these words shall be left out because no such words appear in paragraph (a) and it was felt that there was a risk that in future someone might construe this section as saying that the words "subject to paragraph (b) of this subsection" applied only to paragraph (c) and not to the first paragraph.
§ If your Lordships accept this Amendment, the subsection will then have the present paragraph (b) first; then follows the present paragraph (a) and then paragraph (c) with the words "subject to paragraph (b) of this subsection" omitted. This seems to be a very complicated way of dealing with a simple matter, but it was felt that it was wise to remove now any doubt about the construction on the ground that because it was limited to apply to paragraph (c) it would not apply to paragraph (a). With this proposed alteration, I think that this doubt will be removed. I beg to move.
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Amendment moved—
Page 1, line 10, at end insert the said subsection.—(Lord Birkett.)
§ On Question, Amendment agreed to.
§ LORD BIRKETTMy Lords, I beg to move the next Amendment, which is consequential on the first.
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Amendment moved—
Page 1, line 14, leave out from end of line to ("an") in line 18 and insert ("and").—(Lord Birkett.)
§ On Question, Amendment agreed to.
§ LORD BIRKETT moved, in subsection (3), to leave out "infants" and to insert "children". The noble and learned Lord said: My Lords, I can explain in a sentence why this Amendment has become necessary. In a later Amendment your Lordships will find that some of the provisions of the present Bill are to apply to the Carriage by Air Act, 1932. This explanation, again, is going to sound complicated, but really it is not. The Fatal Accidents Acts do not apply to accidents to passengers travelling by air; they are governed by the Carriage by Air Act, 1932. That Act is the result of the Warsaw Convention of 1929 dealing with international carriage by air, and many Orders in Council made since have applied the provisions of the Act of 1932 to carriage by air that is non-international. That Act puts a limit on the amount of damages which may be claimed by the 738 relatives or dependants of a person killed when travelling by air. The Act itself, although it sets out a list of the people who may be regarded as dependants, says nothing whatever about the manner of assessment of damages, which are usually assessed at Common Law. But by Section 1(4) the Act provides that the remedies under it shall be in substitution for any damages that might be claimed either at Common Law or by Statute.
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Now, the Act of 1932 applies to Scotland whereas the Fatal Accidents Acts do not. Clause 1(3) of the Bill says:
In this Section 'adopted' means adopted in pursuance of an adoption order made under the Adoption Act, 1958, or any previous enactment relating to the adoption of infants, or any corresponding enactment of the Parliament of Northern Ireland.
Seeing that that subsection will, by the later Amendment, be applied to the Act of 1932, it is necessary to remove the word "infants" and to substitute "children" because I am informed that in Scotland the word "infant" means a different thing from the word "infant" in English law. In English law an infant is somebody under the age of twenty-one, but in Scotland I am told an infant is a babe in arms. It therefore becomes important, when Clause 1(3) is applied to Scotland by a later Amendment that we should put in the word "children" instead of "infants", which makes it all right for Scotland and leaves it still all right for this country. I beg to move.
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Amendment moved—
Page 1, line 23, leave out ("infants") and insert ("children").—(Lord Birkett.)
§ On Question, Amendment agreed to.
§ 3.34 p.m.
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LORD BIRKETT moved to add to Clause 1:
(5) In paragraph 1 of the Second Schedule to the Carriage by Air Act, 1932 (which specifies the persons for whose benefit actions in respect of a passenger's death may be brought under that Act) the following shall be substituted for the words from 'In this paragraph' to the end of the paragraph:—
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The noble and learned Lord said: My Lords, we come now to the Amendment which links the present Bill with the Act of 1932. The Amendment says:
(5) In paragraph 1 of the Second Schedule to the Carriage by Air Act, 1932 (which specifies the persons for whose benefit actions in respect of a passenger's death may be brought under that Act) the following shall be substituted for the words from 'In this paragraph' to the end of the paragraph:—
The words as they exist at the moment in the Act of 1932 read as follows:
In this paragraph the expression 'member of a family' means wife or husband, parent, step-parent, grandparent, brother, sister, half-brother, half-sister, child, step-child and grandchild.
In a word, the Act of 1932, as it stands at the moment, has a wider range of claimants than the Fatal Accidents Acts or code have at the present time. But when the Bill which is before your Lordships' House becomes law, then the Fatal Accidents Acts will have a much wider range of claimants, because in the Bill there are not only brothers and sisters, but there are uncles and aunts and the issue of any of them. Therefore it is provided by this Amendment that for the purposes of this paragraph, the following people should be deemed to be members of the passenger's family; that is to say,
the passenger's wife or husband, parents, grandparents, children and grandchildren and any person who is, or is the issue of, a brother, sister, uncle or aunt of the passenger.
It might have been possible to do this by way of reference to the Fatal Accidents Acts, but the relevant provisions are widely separated: some are in the Act of 1846 and some in this Bill. It is therefore thought preferable to set out in this Amendment the actual people who may claim, and they are there in the new paragraph (2).
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Finally, I come to sub-paragraph (3) in the Amendment, which reads—
Subsection (2) of section one of the Fatal Accidents Act, 1959, shall apply in deducing any relationship for the purposes of this paragraph as it applies in deducing any relationship for the purposes of the Fatal Accidents Acts, 1846 to 1959"—
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and then come the words:
but as if it extended to the whole of the United Kingdom"—
which, of course, is to include Scotland—
and the definition of 'adopted' in subsection (3) of that section shall apply accordingly.
It is thought that the provisions of Clause 1(2) of the Bill for tracing or deducing relationship should apply to the Act of 1932, and that is done as I have indicated by the new sub-paragraph (3). The reason why the words, "as if it extended to the whole of the United Kingdom", are inserted is in order that it shall apply to Scotland. The Convention of Warsaw, which is the foundation of the Act of 1932, does not specify the class of people who may sue, nor does it control in any way the method by which damages are to be assessed. It is therefore open for this country to legislate on this matter, and it is felt that this is the proper way to do it. I beg to move.
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Amendment moved—
Page 2, line 12, at end insert the said subsection.—(Lord Birkett.)
§ LORD SILKINMy Lords, I should like to ask the noble and learned Lord a question on this Amendment. I am not sure that I understood him correctly, but I gathered he was explaining that the 1932 Act hitherto covered a wider class of dependant than the Fatal Accidents Act, 1846.
§ LORD BIRKETTYes.
§ LORD SILKINThe purpose of this Amendment, as I understand it, is to widen the class of person who can claim under the 1932 Act, but even so the class of claimant who will be able to claim under this Bill, when it becomes law, will be wider than the extension of the 1932 Act. Am I right so far?
§ LORD BIRKETTIf I may put it in a sentence, the position is this. Under the Act of 1932, as it stands on the Statute Book at the moment, the relationship of the people who may claim is set out in the Schedule in the words I have read. At the moment that is wider than the claimants who may claim under the Fatal Accidents Acts as they exist at the present time. But by this Bill the range of claimants will be very much extended, because it will include uncles and aunts and their issue and so on, 741 and that is a much wider class than the claimants under the Act of 1932. Therefore, the purpose of this Amendment is to make the claimants under the Act of 1932 equivalent to those under the Fatal Accidents Acts. There will be no difference between the two. I hope that is now clear.
§ LORD SILKINThat makes it quite clear. I want to be quite sure that the class of claimant under both Acts will be identical.
§ LORD BIRKETTThey will be identical.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)My Lords, I gather from what the noble and learned Lord said in introducing the last Amendment, that the next Amendments are consequential.
§ LORD BIRKETTThey are all Amendments which brings the 1932 Act into line.
§ THE LORD CHANCELLORMy Lords, I am sure your Lordships will allow the noble and learned Lord to move the remaining Amendments together.
§ LORD BIRKETTMy Lords, that will be very convenient and I will do it in this way. The Amendment to Clause 2, at page 2, line 14, is merely to introduce the same rules for assessing damages as in the Act of 1932. The rules for ascertaining the damages under the Act of 1932 are the rules which are applicable at Common Law and, therefore, any benefits which accrue to a claimant under the Act of 1932 must be brought into account. The only exception is the Law Reform (Personal Injuries) Act, 1948, which excludes all National Insurance benefits. What this Amendment is designed to do is to say to those who claim under the Act of 1932, "You shall have all the same facilities in relation to the assessment of damages as are given under the Act of 1846 and this Bill."
Next there is the Amendment to Clause 3, at page 2, line 42. It took me a long time last night to understand this Amendment myself. It is needed, because the Fatal Accident Code does not apply to Scotland and some of it does not apply to Northern Ireland. Therefore, 742 it is necessary to make special provision for the Part of the Bill which is going to apply to the 1932 Act, which does apply to Scotland and Northern Ireland. So far as Northern Ireland is concerned they are bound by the Acts of 1846 and 1908, but not by the Law Reform (Miscellaneous Provisions) Act, 1934, or the Act of 1948. The Statute which allows you to leave out of account benefits which come from National Insurance does not apply to Northern Ireland. Therefore, this provision, which seems so complicated, is merely saying with regard to Scotland that the provisions of the Bill will apply so that Scotland in proceedings under the Carriage by Air Act, shall have the full benefit of the Bill. So far as Northern Ireland is concerned, these provisions are to apply so that Northern Ireland shall have the benefit. Subject to that the Bill does not apply to Northern Ireland or to Scotland.
The next Amendment, in the Schedule, at page 3, line 14, repeals the whole of subsection (5) Section 2 of the Law Reform (Personal Injuries) Act, 1948. In the Bill as it stands, only part was repealed. Now under the new provisions, it is necessary to repeal the whole subsection, and that is done. The Amendment at page 3, line 18, repeals words in the Law Reform (Miscellaneous Provisions) Act (Northern Ireland), 1948, which are now rendered otiose by the application of the Bill to the Carriage by Air Act, 1932. The last Amendment on the Marshalled List is to the Title. The Title at present covers merely the Fatal Accidents Act, and the Amendment is designed to amend the Title by including the Carriage By Air Act, 1932. I beg to move.
§ Amendments moved—
§ Clause 2, page 2, line 14, after ("1846") insert ("or under the Carriage by Air Act, 1932")
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Clause 3, Page 2, line 42, leave out subsection (5) and insert—
("(5) The following provisions of this Act, that is to say, subsection (5) of section one, and so much of section two as relates to actions under the Carriage by Air Act, 1932, extend to Scotland and Northern Ireland, so much of section three and the Schedule as relates to the Law Reform (Personal Injuries) Act, 1948, extends to Scotland, and so much of that section and Schedule as relates to the Law Reform (Miscellaneous Provisions) Act (Northern Ireland), 1948 extends to Northern Ireland; but except as aforesaid this Act does not extend to Scotland or Northern Ireland.")
§ Schedule, page 3, line 14, column 3, leave out from beginning to end of line 18 and insert ("Subsection (5) of section two")
§ Schedule, page 3, line 18, at end insert—
| ("12 & 13 Geo.6.c.23 (N.I) | The Law Reform (Miscellaneous Provisions) Act (Northern Ireland),1948. | In section three, in paragraph (a) of subsection (5), the words or under the Carriage by Air Act, 1932'.") |
§ In the Title, line 1, after ("1846") insert ("and the Carriage by Air Act, 1932").—(Lord Birkett.)
§ On Question, Amendments agreed to.