LAW REFORM (DAMAGES AND SOLATIUM) (SCOTLAND) BILL (Hansard, 4 June 1962)

VISCOUNT COL VILLE OF CULROSS
My Lords, the general rule of the law of Scotland is that upon the death of a person no one may bring an action for damages in respect of his death however great may have been his loss or his grievance or, indeed, his bereavement as a result of it. However, by Judge-made law over the centuries, the decisions of the courts have changed this and have allowed, in certain instances, that people should be able to recover both damages and also a sum of money in respect of what is called solatium. In case your Lordships do not readily recognise that particular concept, I should like to read the definition of "solatium", which is: A term applied to those damages which are allowed by the law of Scotland by way of compensation for pain and suffering or injury to feelings, and which do not cover any pecuniary or patrimonial loss. This principle has been described as an acknowledgement of the grief and sorrow needlessly inflicted on the surviving relative. The decisions have laid down a right to sue in certain cases, the limitations being that this can be done only if the deceased person could himself, if he had lived, have sued in respect of injuries from which he died, that he has neither initiated an action himself in respect of them, nor renounced his rights to do so. Further, the classes of people who have been allowed this action have been gradually broadened to include all the more obvious relationships. Nevertheless, the courts have said that the whole system is an anomaly which should not be extended.
In one respect, at any rate, the limits of the extension of this rule came in the case of Laidlaw v. The National Coal Board, which was deoided in 1957. The facts of this case, which your Lordships should have in order to be able to understand this Bill, are that a mother was suing in respect of the death of her adult son who had been living with her at the time of his death and was her sole support. Her husband, who was the son's father, was alive, but had lived apart for many years and since the birth of 390 the deceased had failed to support either him or the wife. Before the action was brought, the husband wrote to the defenders—that is, the Coal Board—renouncing his claim against them in respect of the death. But the courts held that the wife had no title to sue, and one of the Judges, Lord Sorn, said in the course of his judgment: Speaking for myself I share the view that the results of the rule which excludes a mother's claim during the lifetime of her husband are not satisfactory, but at this time of day the only possible remedy lies in legislation. My Lords, the Law Reform Committee for Scotland were invited to consider this case, and also within their mandate was any possible change that might be desirable in the right to sue for solatium at the death of a relative or spouse. They considered the case, and various memoranda which were put before them, and they came to the conclusion—again, if I may, I will read their words which I think have more weight than mine—that: in view of the principle of conubial equality which is now accepted, and having regard to the peculiarly intimate relation of mother and child, we consider that a mother ought to have a title to sue in respect of the death of her child, and the child in respect of the death of his mother, whether or not the father is alive. They continued: As the law stands it must, in our view, be accepted that the mother has ordinarily no such title during the lifetime of the father, and we would therefore recommend that legislation should be introduced to alter the law in this respect. That is what Clause 1 subsection (1) does and thereby it overrules the decision in Laidlaw v. The National Coal Board.
Further, however, in that decision Lord Sorn again had given rise to a certain doubt whether there was a title for a child to sue in respect of the death of his mother while his father was still alive. This was not a doubt which had previously been evident, I think, in the law of Scotland, but once so distinguished a judge as Lord Sorn had given rise to it, the Law Reform Committee likewise thought this doubt should be remedied and subsection (2) of Clause 1 of the Bill does so.
Then, the Law Reform Committee, since they had a rather wider mandate than the Laidlaw decision, also considered the position of illegitimate 391 children and their right under this general principle. In Common Law no illegitimate child can sue, nor can any parent of any illegitimate child sue in respect of his death, but by Section 2 (2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act, 1940, half of the disability was removed. That Act provided that an illegitimate child should have the same right with regard to damages for solatium in respect of the death of either of his parents as if he were legitimate. However it still remained the law that the parents could not sue in respect of the death of the illegitimate child, and it was represented to the Law Reform Committee for Scotland that this, in certain cases, gave rise to hardship where a breadwinning son who had long been accepted as a member of the family was killed by the fault of another and yet the parents, because of the fact that he was illegitimate, could get no recompense whatever. The Law Reform Committee therefore felt it right that the other side of the coin, as it were, should now be included in the law and consequently they recommended the steps which now appear in Clause 2 of this Bill. Clause 3 merely lays down that no person shall take advantage of the benefits of this Bill if the action has arisen before it comes into force.
I think I would make only one general point upon this subject: although it is true that the laws of England and Scotland in respect of damages to be gained as the result of the death of a person are not at all the same, yet the Law Reform Committee in their Report expressly say that there is no evidence that the public interest requires any sweeping alteration or extension of the classes of relatives entitled to sue in respect of the death. That is, they are content that, whereas in England there is a fairly wide range of persons who may sue, in Scotland limitation should be rather more acute. Equally, the Scottish principle of solatium does not apply South of the Border. The Law Reform Committee considered this and thought it should stay as it is and that there should be no wide change in the present application of this rule. This Bill was taken through the House of Commons by my honourable friend the Member for Perth and East Perth and 392 it received all-Party support. I hope your Lordships will think that I have explained it adequately, that it is a good Bill and that it should be given a Second Reading. I beg to move that this Bill be read a second time.

§ LORD SILKIN
My Lords, I want to say just one word. It would be a pity if the invitation of the noble Viscount to give this Bill an unopposed Second Reading were not accepted from this side of the House. I rise to say that we readily accept, and I should like to congratulate the noble Viscount on the opportunity he has of presenting this very valuable Bill and on the clarity with which he has explained a very difficult legal principle. This Bill is introduced partly in order to remedy an evil caused by a judgment of the court which was never intended and also to remove doubts, but there is one doubt in my own mind which still remains. This Bill gives the mother of the child the right to take proceedings. But what happens to the father? I presume that it would arise, generally speaking, in cases where the father and mother are not living together and where the mother is deprived of the right of solatium; but in such a case is not the father still entitled to take proceedings as well? It would be a pity if in an attempt to remove doubt we created a new doubt or created circumstances which we never intended. I do not know what the answer is. I assume the noble Viscount knows; he seems to know the answers to most things. At any rate, I do not wish to carry that point any further at this stage, but perhaps the noble Viscount will look at it between now and the Committee stage, and if any explanation or any amendment of the Bill is required I have no doubt he will put it before the House.

§ LORD CRAIGTON
My Lords, I am grateful to the noble Lord, Lord Silkin. I was going to do what he has done and congratulate my noble friend. I ask your Lordships to give this Bill a Second Reading.

VISCOUNT COLVILLE OF CULROSS
My Lords, I thank my noble friend for his welcome and also the noble Lord, Lord Silkin. I think the difficulty that 393 he has envisaged is in fact already catered for by the law of Scotland, and I find a certain amount to do with it at paragraph 20 of the Law Reform Committee's Report. Perhaps, as it is very short, I might read it. Of course, as the noble Lord said, the father already has the right to sue; but now the mother, during the father's lifetime, is being given the right. Therefore, I think this is applicable: Where there are several relatives, each with a title to sue, an action by one of them is incompetent in the absence of averments that the others either concur or refuse to concur or cannot be found, unless they are called as defenders for their interest. And then the Report goes on to say: The claim of each entitled relative is separate and distinct. Where several entitled relatives sue together, therefore, the correct practice is to conclude for a separate sum for each. I think, therefore, that the point is already covered in cases where there have been in the past several persons entitled under the law as it then stood to sue in respect of the same death, and I do not think additional trouble should arise in this particular context. I hope that is of some use to the noble Lord, but I will certainly look at it again before the next stage. Meanwhile I thank your Lordships.