HL Deb 15 June 1959 vol 216 cc1079-90

2.36 p.m.

Order of the Day for the Second Reading read.

LORD BIRKETT

My Lords, I beg to move the Second Reading of the Fatal Accidents Bill. Before your Lordships proceed to the more controversial Business of the day perhaps I can explain this modest and useful little Bill quite shortly, because I do not think that there will be any opposition, in any quarter of this House, to its provisions. The Bill has one purpose namely, to amend the Fatal Accidents Act, 1846, more usually and popularly known as "Lord Campbell's Act"—because this is yet another illustration of the reforming zeal of Lord Campbell in the world of law. The purpose of the Act of 1846 was simple it was to introduce a new cause of action; and that was that when any person had died because of fie tortious, wrongful, act of another, those dependants of the deceased person who had lost their support in life could either sue or have an action brought on their behalf for damages in the Common Law courts, the measure of damages always being the loss of the support which they had sustained.

In that Act of 1846 the dependent relatives mentioned were husband and wife, parent and child. They were specifically mentioned. But by Section 2 (5) of the Act there were to be included in those relationships grandparents, grandchildren, step-parents and step-children. Oddly, and illogically, enough, step-grandchildren were not within the ambit of the Act. Clause 1 (1) of the present Bill proposes to add to the list of relatives who can sue or have an action brought on their behalf, and the new category is to be uncles and aunts, brothers and sisters, or any issue of them. That is the whole purport of Clause 1 (1) of this Bill—merely to enlarge the number of the dependants who may be able to sue in the courts where they have lost their support through the wrongful act of some other person who has occasioned them their loss. That being so, it was necessary in Clause 1, in subsections (1), (2), (3) and (4), to make rules for the ascertainment of the dependent relatives.

I ought just to say to your Lordships, here and now, that by the Law Reform (Miscellaneous Provisions) Act, 1934, it had already been decided that, where the relationship was illegitimate, for the purposes of the Fatal Accidents Act the illegitimate child should be regarded as the child of the mother and the reputed father. Secondly, by the same Act, the Act of 1934, it was decided that where the child has been adopted under one of the various adoption orders that child also should be regarded as the child of the deceased. So the law at the present time, without this Bill, is that in the case of the specified relatives—husband, wife, parent, child, grandparents and so on—if the child is illegitimate it does not matter; if the child has been adopted it does not matter; and if it is a step-relationship that does not matter at all. That is the law as it exists at this moment.

This little Bill, which of course extends the number of the relatives, provides that those provisions of the Acts I have cited shall be continued and shall include also the new class of relative that has now been put into the Bill. If your Lordships will look as subsection (2) (a) of Clause 1 you will see that it provides that: any relationship by affinity shall be treated as a relationship by consanguinity… That means merely that a relationship by marriage shall be treated as though it were a relationship by blood. That is put into the Bill in consequence of this kind of occurrence—which is an actual occurence. A deceased man who had been killed by the negligence of another was, al the time of his death, supporting his son's widow and children. The odd thing was that the grandchildren could sue under the Act of 1846 but the stepdaughter could not. Now under this Bill the relationship of affinity can be regarded as a relationship by blood—

LORD SILKIN

My Lords, does the noble and learned Lord mean "daughter-in-law"?

LORD BIRKETT

My Lords, I mean daughter-in-law. The other practical illustration was that where a wife's mother was living in the house with the deceased, and the deceased was maintaining her, the mother was held to have no claim. It is for that reason that the provision in subsection (1) (2) (a)—the relationship by affinity—is put into the Bill. I might tell your Lordships that most of these incidents occur only at rare intervals, but there is no reason why the law should not provide that justice should be done, even though such instances arise only rarely and from time to time.

The provision that: "any relationship of the half blood" shall be treated as a "relationship of the whole blood," is necessary because of the new category of brothers and sisters, uncles and aunts; and the words and the stepchild of any person as his child merely reaffirm the provisions of the Law Reform (Miscellaneous Provisions) Aot, 1934. Subsection (2) (b) merely reaffirms that the adopted child shall be treated as the child of the person or persons by whom it was adopted and not as the child of any other person; and subsection (2) (c) merely confirms, again, the provision in the Law Reform (Miscellaneous Provisions) Act, 1934, that the illegitimate child shall be treated as legitimate. In subsection (3) there is a definition of "adopted", and your Lordships will observe that although this Bill, as I shall point out, for a very important reason does not apply to Scotland or Northern Ireland, neverthe- less in both Scotland and Northern Ireland adoption orders are frequently made, either under the Act of 1858 or under earlier provisions, and therefore it was necessary in this Bill to take steps to allow the orders of Scotland or Northern Ireland to be proved in the customary way.

Subsection (4) of Clause 1 is purely consequential and arises in this way. Under Section (6) of the Law Reform (Married Women and Tortfeasors) Act, 1935, it was provided that if more than one action was brought for the same loss the aggregate of the damages recovered should not exceed the amount of the damages recovered in the first action; but the Act of 1935, of course, referred to the relatives in the Act of 1846—parent and child, and so on—and it was necessary here to provide for the new categories brothers and sisters, uncles and aunts. That is the reason why that consequential subsection is placed there. That is everything with regard to Clause 1. Your Lordships will see that the purpose of the Bill in Clause 1 and its subsections is merely to add to the list of persons entitled to sue in proper circumstances or to have an action brought on their behalf for damages under the Act of 1846.

Now we turn to Clause 2, which deals solely with damages. I have always felt, for my own part—and I see the noble and learned Lord, Lord Denning, sitting in front of me—that the two most difficult tasks a judge ever has to perform are, first, to find the appropriate sentence in a criminal case, and secondly, to find the appropriate award in a civil action for damages. If the difficulty of assessing damages in an ordinary case is great, it is infinitely greater under the Fatal Accidents Act, for all the Act of 1846 says is that the jury shall award such damages as they think proportionate to the injury suffered by the person on whose behalf the action is brought; no more than that. But the courts have always laid it down—there was a leading case a very long time ago—that the amount of damages was to be assessed as a lump sum and was to be a balance between the loss the dependent relative had sustained and the benefits to be put on the other side which the dependent relative had gained.

My reason for saying that that is a difficult matter in a fatal accident case is that one can bring an action for libel and get damages of £5,000 or £10,000, while never really having suffered any loss at all; because damages are presumed and are at large in the hands of the jury. But in a fatal accident action, when there is a young widow, as frequently happens, with her life in pieces because her husband has been killed by the negligence of another, all the grief and suffering and loss must be utterly disregarded, and it must be brought down always to pounds, shilling and pence—what is the financial loss on balance suffered in the case.

There is an Act called the Fatal Accidents (Damages) Act of 1908 which makes a statutory exception; that is, in a word, that any monies which come to the dependent relative because of an insurance policy shall be left out of account. It is a good illustration of the way Parliament does its work that there is no logic at all in that statutory exception. It arises in this way. A company called the Railway Passengers Insurance Company got a Private Bill—a Private Bill, mark you!—enacted, under which they were entitled to say to the people who took out their policies, "The money paid by this company can be left out of account under the Fatal Accidents Act of 1846." There was no reason why it should be done, but it was done. Naturally, other companies said, "If they have it, why should not we also?" By 1908 there were more than forty companies applying for the same exemption, which one or two companies had received; and the Board of Trade of those days, 1908, said, "We will make a Public Act, cutting out altogether, in every case, insurance monies." Therefore, when the judge or jury is assessing damages under the Fatal Accidents Acts to-day it leaves out of account any money paid by way of insurance.

In 1948 another statutory exception was made: that all the benefits paid under the National Insurance Acts were to be left out of account. That is the position at this moment: this Bill confirms the provisions of those two statutory exceptions, and goes a little further. As regards pensions, some pensions, of course, are paid by way of insurance; and, if so, they are left out of account. But many pensions are not. To give one illustration, all the Civil Service pensions have to be brought into account. Others may be left out, but they may not.

Secondly, as your Lordships well know, many employers have funds out of which, on death, they pay certain sums to the widow or relatives. It was held in the courts that those sums must be brought into account—that was in a case in which British European Airways were concerned. Then trade unions have funds from which they pay out for the benefit of dependants; co-operative societies do the same; benevolent societies do the same. This Bill, by Clause 2, states In assessing damages in respect of a person's death in any action under the Fatal Accidents Act, 1846, there shall not be taken into account any insurance money, benefit, pension or gratuity which has been or will or may be paid as a result of the death: So all those little matters, which can be very momentous in individual cases, are brought within the scope of this Bill; and if it becomes law then not merely will insurance monies be left out of account, not merely will National Insurance benefits be left out of account, but all pensions and true gratuities will be left out of account, too. Subsection (2) of Clause 2 merely confirms what I said: that the benefits under the Acts of 1946 shall still be continued.

Then we come to Clause 3. Subsections (1), (2), and (3) of Clause 3 are merely formal. Subsection (4) states: This Act shall apply only to actions brought in respect of deaths occurring after the commencement of this Act. That is to say, there shall be no retrospective legislation in this field. There are many reasons why it is wise that this should be so, and that is enacted. Then, finally, it is stated: This Act shall not apply to Scotland or Northern Ireland. The Fatal Accidents Acts do not apply to Scotland, but the Acts from 1846 to 1908 do apply to Northern Ireland. The reason why this provision is put here, that this Bill shall not apply to Northern Ireland, is this. if the Parliament of Northern Ireland decide themselves that they would like to legislate upon this topic, by Section 6 of the Government of Ireland Act, 1920, they would not be able to do so if their legislation was in any sense counter to the legislation in this Bill. Therefore, it has been felt wise that the Parliament of Northern Ireland shall be left to adopt a similar measure, if it so pleases, but should not be handicapped by the provisions included in this Bill.

LORD BOOTHBY

My Lords, may I ask the noble Lord a question? What happens to Scotland, which has not a Parliament?

LORD BIRKETT

My Lords, Scotland is left out of this Bill and was left out of the previous Fatal Accidents Acts. This Bill does not apply to Scotland because none of the Fatal Accidents Acts does. Scotland is such a strong and sturdy and independent country that it takes a line of its own. At any rate, the Fatal Accidents Acts do not apply to it.

That is the whole of the matter I wish to put before your Lordships. I think your Lordships will agree that this is a modest Bill, a useful Bill. It means very much to people who happen to be included in the kind of circumstances I have mentioned, and I commend it to your Lordships for a Second Reading.

Moved, That the Bill be now read 2a.—(Lord Birkett.)

2.56 p.m.

LORD SILKIN

My Lords, I rise only to express our deep gratitude to the noble and learned Lord for the way in which he has explained this little Bill. I am sure that no noble Lords who listened to him can fail to appreciate entirely both the history of this matter and the effect of this Bill. It is, as he said, a modest and useful little Bill; and I can assure him that there will be no opposition from this side of the House or any endeavour to slow down the progress of the Bill.

I myself have never found that the omission of the class of persons it is now intended to bring in as dependants has crossed my path. I have been in practice for forty years or more and I have never come across a case where a person who would be a dependant under this Bill has, in fact, suffered. But obviously, from what the noble and learned Lord has said, there have been such cases, and it is right that they should be brought in; and even if there are only one or two, to the persons concerned it is a very important matter.

There is only one point upon which I should like to ask the noble and learned Lord's view, and that is in regard to Clause 1 (3) and adoption. There are, in fact, a great many adoptions where no adoption order has been obtained. A person may have taken a distant relative into his home and treated him as his own child—a distant relative not coming within the definition or scope of this Bill but who is nevertheless in fact treated as a member of the household. I take it that such a person would not be regarded as a dependant, and it may be worth while to look at that point to see whether we can include under the Bill people adopted in fact, in addition to those adopted by order. But subject to that—and it is a small point—I am sure the whole House would wish to give this Bill its blessing.

2.58 p.m.

LORD McCORQUODALE OF NEWTON

My Lords, I have no wish to do other than commend this Bill, which I think is a very useful measure. But, so far as Clause 2 is concerned, I should like to suggest that it is essential that it should be clear and not likely to lead to more litigation than there has been before because of its wording. I am a little unhappy about the phrase: …any insurance money, benefit, pension or gratuity and the definitions of those words. For example, with regard to insurance money is return of premiums covered? I believe that that is a doubtful point. Some payments are made by lump sums. A lump sum in a pension scheme not operated by the insurance company is presumably not insurance money; nor is it a benefit, pension or gratuity, and yet it surely should come into the scheme. Then there is the word "gratuity". I wonder whether its meaning is clear. Would that cover "without prejudice" payments or sympathetic payments made by the employer to the widow when subsequently litigation and proceedings started? These are small points and I should not like to press them now. I merely suggest that they might be worth consideration. so that when the Bill becomes an Act it is quite clear and there will he no need for further litigation.

3.0 p.m.

THE LORD CHANCELLOR (VISCOUNT KILMUIR)

My Lords, I rise to welcome the Bill on behalf of Her Majesty's Government and to express our gratitude, not only to my noble and learned friend Lord Birkett for the persuasive terms in which he has urged the Bill in this House, but also to those honourable Members of another place who have given so much care and consideration to it. From the debate that we have had, I think that there is no doubt at all about the general and keen support for Clause 1 of this Bill. Indeed, the examples which my noble and learned friend gave of a disabled sister or widowed daughter-in-law being unable to recover although they were entirely dependent on the deceased for their support when he was alive shows the necessity of the extensions of which we have heard. With regard to Clause 2, my noble friend Lord McCorquodale of Newton made it quite clear that he was not against the elimination of the anomalies that exist at the moment, but he was anxious—and it is a very important point—that the anomalies should not be erased by the creation of new anomalies. I think it would be useful if he would raise the matter on the Committee stage so that my noble and learned friend Lord Birkett can give us his view.

My noble friend Lord McCorquodale of Newton was kind enough to give me notice of the matters that are worrying him, and I should like to make one or two points so that he can have them investigated. With regard to the term "insurance money", it is our view, after very careful consideration, that this term covers sums paid or payable under any contract of assurance or insurance—that is, the payments that were excluded by the Act of 1908. As my noble friend is aware, some doubt was raised on that point in another place; and we have reexamined it. It is difficult to import a definition which would meet my noble friend's point, and we thought that the best that we could do to achieve certainty was to attract the existing Case Law on the subject. But if my noble friend has any doubts I shall be only too glad to go into that point. My noble friend is absolutely right in raising the question of lump sum payments. That is a defect which, in my view, subject to what my noble and learned friend Lord Birkett says, should be remedied in Committee; and no doubt an Amendment will be put down to deal with that point.

My noble friend Lord McCorquodale of Newton also raised the question of ex gratia payments. As the law stands, the purely ex gratia payment, and any other purely spontaneous gift, cannot be taken into account in the reduction of damages, because it is not a benefit coming to the relatives in direct consequence of the death. Although such a payment may be following the death, it is due purely to the good will and generosity of the donors, and is not a benefit which the relatives were entitled to—or, at least, had a firm and reasonable expectation to receive—in consequence of the death. Again subject to what my noble and learned friend Lord Birkett says, that is what I have been able to extract (and I think it is the correct view) from the case of Peacock v. The Amusement Equipment Company, with which my noble and learned friends are familiar. The Bill is not intended to make any change here. Similarly—and this is another point that my friend raised—the Bill does not alter the law in regard to payments made without prejudice. These are my reactions to the points raised by my noble friend Lord McCorquodale of Newton. If he still has any doubts on these points, I shall be very pleased to consider them before the Committee stage and I am sure that my noble and learned friend Lord Birkett would also be delighted to join in any such consideration.

It was suggested that I might refer the question of the assessment of the damages to the Law Reform Committee. I do not want my noble friend Lord McCorquodale of Newton to be in any false position over this matter. There are a number of interesting and important subjects "in the queue", if I may so put it, for that Committee, and I do not want my noble friend to prejudice his position on this Bill by waiting for action of that kind. I think he would be well advised to consider the matter on this Bill; because once the Bill is on the Statute Book, who knows when the next Bill may come? Nobody knows that better than my noble friend Lord McCorquodale of Newton. Finally, I join with all noble Lords in welcoming the Bill, and in congratulating my noble and learned friend.

LORD BIRKETT

I will not detain your Lordships more than a moment, but I should like, first of all, to express my gratitude to my noble and learned friend on the Woolsack for dealing so succinctly and so clearly with the points that have been raised by my noble friend Lord McCorquodale of Newton. I have no reason to disagree with anything that my noble and learned friend has said; and I would merely endorse the view which he has expressed—that I should welcome any opportunity of making this Bill clearer in any respect in which it is now doubtful.

There is one matter I ought to have mentioned—and it was raised by my noble friend Lord McCorquodale of Newton—and that is as to the question of the lump sum. Quite clearly, in Committee there must be remedied what I think is an oversight in this Bill, and that is the leaving out of any question of the lump sum. For example, under Regulation 13 of the National Health Services Superannuation Regulations, 1955, lump sums are frequently paid on death. Now they are not benefits within the meaning of this Act; neither are they gratuities, because the recipients are legally entitled to them: but, clearly, they ought to be treated on the same footing as the benefits, pensions and gratuities referred to in the clause. I therefore propose, on the Committee stage, to remedy that point in regard to lump sums.

With regard to the other points raised by Lord McCorquodale of Newton, so far as the insurance monies are concerned I do not think there will be any difficulty. Under the Act of 1908, the words are "monies arising from any contract of assurance or insurance". I myself have never been able to discover what difference there was between a contract of assurance and one of insurance; but there it is in the Act of 1908. However, I do not anticipate any difficulty in making that point quite clear.

On the other point, of gratuities, I am quite conscious that difficulties may arise, but I do not think that by any pre-vision or foresight in the world one will ever be able to prevent these difficulties from arising. The case to which my noble and learned friend on the Woolsack referred (and I will not read it at any length) of Peacock v. The Amuse- ment Equipment Company, in the House of Lords, happened to be a case in which I delivered one of the judgments. Put in a sentence, that was a case where a wealthy woman had died as a result of the tortious act of another person, and she had left all her money to the two children of her former marriage and nothing to the husband, who was totally dependent on her. He brought an action under Lord Campbell's Act and he was confronted by the fact that the two children of the former marriage, out of pure compassion, had made a lump sum gift to him. It was contended that that ought to be taken into account. I am glad to think that the Court of Appeal, of which I was a member, said that it should not be taken into account as it did not arise in connection with the death, but it was argued at very great length. And until anything interferes with that decision, it is the law of the land. It may be that similar difficulties may arise, but I cannot imagine that any form of words would ever overcome the possibility of these matters arising from time to time. I would add that any assistance that I can give in this matter will be gladly given.

I should also like to thank the noble Lord, Lord Silkin. The point he raises has also been in my mind at the moment. This should he done under an order of adoption, otherwise there might be all sorts of spurious claims of adoption in the courts; but I will certainly give this matter close consideration and consult with my noble and learned friend to see whether we can do anything about it. I beg to thank noble Lords for their kindness.

On Question, Bill read 2a, and committed to a Committee of the Whole House.