§ 2.47 p.m.
§ LORD STOW HILL
My Lords, I beg to move that this Bill be read a second time. It is a Private Member's Bill which comes from another place, where it was agreed to without a Division after very thorough discussion. It deals with the law relating to the recovery of damages for personal injuries; personal injuries in that context being very widely defined so as to include the contracting of an illness—particularly an industrial illness —or any impairment of physical or mental faculties as the result of somebody else's neglect or breach of duty.
It is divided into two main parts. The first part deals with the existing time limits within which actions for recovery of damages must be commenced. The existing law is somewhat complex, and I do not think I need trouble your Lordships to examine it in any detail for the purpose of the Second Reading of this Bill, but it would be broadly accurate to say that the law until 1963 was that a plaintiff who claims damages for personal injuries which he says he has sustained owing to the neglect, whether the negligent driving or the breach of duty, of some other person, such as a defendant motorist or his former employers, had to bring his action within the period of three years after the circumstances occurred which gave rise to what the law calls his "cause of action"—the grounds of his action. That was the law until 1963, and the Limitation Act of 1963, which this Bill would amend, introduced a change into the law in the following circumstances. The provisions with which this Bill deals relate to actions in general, for personal injuries, but they have special relevance in this particular context to actions brought by persons employed in various industries who had contracted diseases through exposure to certain processes in those industries—in particular, miners who may have contracted pneumoconiosis.
Medical science has recently traced the connection between cancer of the bladder and exposure in industrial processes to certain particular chemical products. Frequently it occurs that the unfortunate person who has contracted such a disease may net know for years that he has the 528 condition from which he suffers; and even later may find out how serious it is and indeed that it may be fatal in its implications. He may have been for years wholly unaware of circumstances which gave him the right to claim damages because he has contracted that injury. He may have left the employment years before, and witnesses as to the circumstances in which he was called upon to work may long since have disappeared or become untraceable. It may be very difficult for him, when at long last he realises how serious his condition is, to mount an action, or for his trade union advisers and the solicitors they instruct to mount an action on his behalf, claiming damages for him.
It was very largely to deal with a situation of that kind that the 1963 Act, while it retained in general the three years' limit within which actions must be brought, provided nevertheless that in the case of the plaintiff who could show that he was unaware of the circumstances which gave rise to the cause of action which he wished to present, would have an extra year: even though the three years' limit might have run out, nevertheless he could bring his action within one year after discovering the relevant circumstances on which he could base his cause of action. That was the case with regard to a living plaintiff. Unhappily, not infrequently the unfortunate sufferer from the disease succumbed to the disease. The question then arose of an action by his personal representatives or the dependants in his family in respect of the breach of duty which might have brought about the death of the breadwinner of the family.
The 1963 Act left the dependants in a still more difficult position. Supposing his widow desired to sue; she was advised that there might be grounds to establish a cause of action on her behalf. The law took no account of the fact that she herself might be wholly ignorant of the circumstances which gave rise to that cause of action. If through her advisers she wished to submit to the court that her deceased husband knew nothing of the circumstances which led to his illness, nevertheless she would not be allowed to bring her action after the expiry of one year from the date of his death. Your Lordships can easily picture the situation of an unfortunate widow who in any 529 event would know much less about the circumstances of his employment than her late husband did and who is confronted with the prospect of having to assemble the circumstances, with the assistance of her advisers, in order to put forward a claim in respect of her husband's death.
It is to cater for a situation of this kind that the changes in law which are proposed in the first Part of this Bill are designed. Those changes are these. In the first place, the one year extra which is given to the living plaintiff is extended to three years. In the second place, the deceased's dependants are also by this Bill, if your Lordships approve it, given the right to say that they themselves were unaware of the circumstances which gave rise to the cause of death. The Bill says that in their case equally, if they can show that they bring their action within three years after they became aware of those circumstances, their action will be competent. The one year which was the overall limit after the death of the deceased proposed by the 1963 Act, is also extended to three years. Those are the changes which the first Part of the Bill introduces.
The Bill is based upon and in accord with advice in that behalf which was given both by the English Law Commission and the Scottish Law Commission. The Bill has application both to England and Wales and to Scotland. The Law Commissions, before they gave their very valuable advice, took counsel with a large number of representative bodies in this context. They took counsel with the Trades Union Congress, the National Union of Mineworkers, the Transport and General Workers' Union, the National. Coal Board, Lloyd's Underwriters, the British Insurance Association and the Law Society. It is in consequence of the advice which they tendered that the Bill is now put forward for your Lordships' consideration. That is the first Part of the Bill. Very little question was raised with regard to those provisions in another place.
Now I come to the second Part of the Bill. It cleats with a matter which has attracted a good deal more attention. Again, it relates to the law regarding claims for damages for personal injuries. It deals with, and seeks to change, what 530 in my submission to your Lordships is a really repulsive feature of the existing law. Learned judges have to enforce it; counsel have to apply it; solicitors have to apply it; the claims managers of insurance companies have to apply it. It is their duty to do so and they cannot help themselves, and nobody can possibly criticise any of them for discharging their duty conscientiously in the custody of the money which is in their charge.
The matter arises in this way. A widow has lost her husband. Under what is called the Fatal Accidents Act 1846 she is given, as a dependant, the right to claim on her own behalf and on behalf of other dependants of the deceased husband whom she has lost, damages proportionate to the loss occasioned to her and to them as the result of being no longer in receipt of the support which the deceased husband gave. In practical terms that means this. She may have lost her husband, say in a motor accident caused, or thought to have been caused, by somebody else's negligent driving. It may, again, be through breach of duty in employment. It may be through one of the hundred and one negligent, thoughtless acts which unfortunately bring about deaths. The unfortunate widow has in the first place to face this situation. She has to bring her claim for damages. It would be guile wrong to think of this widow as somebody asking for some pecuniary "windfall"—it is nothing of the sort. She may have children to support, elderly parents to help. If she has given many years of her life to her family, she probably will not be in such a good position to earn her living as she would have been had she remained single. Therefore, she has, in duty to herself and her family and those who are dependent upon her, to approach the court to ask for damages if she is advised that she has a claim.
That in the first place means that all the gruesome circumstances must be resurrected which describe how her late husband came by his death. She may have been a passenger with him in a motor car when an accident occurred owing to somebody else's negligent driving. She may have been driving the motor car with her husband in it. All that, whether she likes it or not, has to 531 be paraded in court. Supposing liability is disputed, as of course it very often is, and the circumstances have to be given in evidence and analysed. That is done in her presence—or she may go out of court if she wants to; but, at any rate, all those circumstances which, in her state of distress, she would like to forget have again to be brought to her recollection and analysed to see whether she can prove affirmatively that the death of her husband was due to somebody else's fault. That is bad enough, but it cannot be helped; she has to go through with it, and this Bill does not seek to alter that.
However, worse is to come, and this position the Bill does try to alter. The learned judge, if he comes to the conclusion that negligence or breach of duty is established, then has to address himself to the task of assessing damages. As I said, the damages are the pecuniary loss she and the dependants suffer. In assessing damages, the learned judge, as the law stands at present, must say to himself: "I, if I think this lady is likely to marry again, must reduce the damages which I otherwise would give her because her loss is not so serious." That may be good logic, but it is not attractive logic. At any rate, that is what the learned judge has to say to himself. Learned judges on many occasions have said how they dislike the task; how impossibly difficult in any case they think it is to discharge it with any thoroughness.
The learned judge may have an unfortunate lady before him in the witness box perhaps for 20 minutes, or in court during the hearing of the case. He has never set eyes on this lady before. How on earth he is to assess her inclinations, her feelings towards her late husband, the likelihood that she may wish to become again married, except by a hit-and-miss method, I do not know. Many learned judges have expressed the view that it is not a task to which they address themselves with any pleasure. However, the learned judge has to do it.
In doing so, he has in the first place to ask himself not only, "Is she likely to want to remarry?" but also "Is she young and attractive and likely to find a suitable mate?" My Lords, I do not know whether I am exaggerating, but that seems to me to have something of a whiff of a healthy 532 young heifer being paraded round the cattle ring in a cattle auction in order that her qualities may be assessed from the point of view of a prospective purchaser. Perhaps that is overpainting the picture, but not, I think, to any great extent. In my view, the whole process is perfectly repulsive.
§ LORD STOW HILL
My Lords, with great respect, the matter does not stop there; it gets worse still, because those who are preparing the case on behalf of the defendant—again in discharge of their duty, and I do not complain of that —have to prepare for the administering of those questions in cross-examination which may seem to elicit the fact that the widow is likely to marry again. The judge sees her in the witness box and may think to himself "Well, she is an attractive young person. I do not know what her disposition is like, but I would assume she is of an agreeable and accommodating disposition. I do not know whether she really wants to marry or not, but I must hear questions put to her and see what she replies". Therefore the insurance companies (I do not say always, but on occasions) instruct inquiry agents to keep a watch on the unfortunate lady to see whether she, by her mode of life, gives any indication that she may wish to marry again. They solemnly instruct inquiry agents to shadow her and then, when the inquiry agent's report is to hand, it is put in the hands of counsel, whose duty it is to found questions upon that inquiry agent's report, designed to show that she is not, perhaps, of a flighty disposition but the sort of person who is not really very distressed, however much she may pretend it, at the death of her husband and will be only too glad to countenance the attentions of any suitable aspirer to her hand who may present himself to her in the near future.
My Lords, it is contrary to your Lordships' custom. I know, to quote from what was said in the other place, but Mr. Arthur Probert introduced this Bill on Second Reading in another place in what I hope I may say was an admirable speech, well couched and most discreetly phrased. He quoted—and I should like to quote, as I think it would be in accord with your Lordships' practice—from a 533 letter which was written by a father-in-law of just such a young widow. The letter reads as follows:
§ My daughter-in-law, who was left with two children, one 13 months old when my son was killed and another born seven months after his death, has been greatly distressed by inquiry agents employed by the insurance company concerned in the claim for damages. They have watched the house for long periods and have questioned the neighbours when she has gone out about her mode of life. Has she a job? Has she lodgers? Has she men friends? Is she living with anyone? And questions of the same type. My daughter-in-law's reaction was, 'People will think I am involved in some filthy divorce case'."
§ I would respectfully present the view to your Lordships that if that is what the law says one should do, it is high time the law was changed. That particularly repulsive feature should be abolished.
In order that your Lordships may not think this is too fanciful, I would remind you that there was a case called Goodburnv.Cotton & Co., Ltd. decided in 1968, and in the report of the case some of the questions that were actually, and quite properly asked by counsel are set out. He was only doing his duty in putting these questions. They are set out in the report, and these are they. The lady in question was a widow of 25 and she was in the witness box 14 months after her husband had been killed in a road accident.
(Q.) Are you contemplating getting married again? (A.) No. (Q.) Have you been out with any men since your husband died? (A.) With relatives. (Q.) Whom have you been with? (A.) My brother and his girl friend. (Q.) Have you been out with anyone who is not a relative? (A.) No, they were all relatives."—and then she added
Just one. (Q.) Do you think of marrying him? (A.) No. (Q.) How many times have you been out with him? (A.) Three times, to the clog track.
§ My Lords, that was a young woman of 25 who lost her husband in a road accident 14 months before, and those are the questions put to her, in the witness box, in public, before a whole court full of people she does not know, complete strangers to her; and, despite her feelings, she has to stand up to answer questions of that sort. I do not want to be drawn into superlatives; therefore I will refrain from saying anything more on that subject. But I ask your Lordships to say that this practice must stop.
If your Lordships will now be so kind as to look at the Bill, you will see that
Clause 4 provides—and these are the relevant words—
there shall not be taken into account the remarriage of the widow or her prospects of remarriage.
Your Lordships will notice that not only are the prospects to be left out of account, if your Lordships approve these words, but also the actual remarriage (if it has taken place) of the widow. Some of your Lordships may say, "Yes, but what about the case of the young woman who waltzes into court on the arm of a millionaire whom she has married before the hearing takes place?''. I do not know how often that happens; I suppose sometimes it does happen that a widow may have remarried before the hearing takes place. In another place various alternatives to the solution proposed in the Bill were considered but they were all rejected and this provision was adopted. I ask your Lordships to say that the Bill is right and that we should leave out of account not merely the prospects of remarriage but remarriage itself.
§ My Lords, if you are going to say, "We will leave out the prospects of remarriage, but if we find that the lady has actually remarried then we must scale down the damages because she may have remarried somebody who can replace the support that she will have lost from her first husband", then one gets into a most impossible situation, which perhaps I may demonstrate in this way. Take two widows, each appearing in adjacent courts: one is engaged; one has just been married. The one who is engaged says, perfectly frankly, to the court, "I propose to get married the day after this hearing is finished". Her damages are not scaled down. In the case of the one who has been indiscreet enough to marry the day before the hearing takes place the damages are scaled down. My Lords, that is the best way to bring the law into disrepute. It may be that one is being illogical in saying so, but if so it would not be the first time that good logic has made bad law. I have heard it said that logic sits on the human intellect like an Alp, and this may be one of those cases.
§ My point goes further than that, because the law has already accepted such illogicality in a big way, if I may use that expression in this context. There may be a case in which a widow's husband was insured and on his death a 535 large sum was payable by an insurance company. It could surely be argued with equal force that if as a result of her husband's death she becomes possessed of a large sum payable by the insurance company, she may be richer than she ever was, or would have been, had her husband lived. But right back in 1908 Parliament changed the law and enacted specifically that insurance monies were to be left out of account. Equally, an Act of 1959 extended the principle concerning insurance monies to pension rights and other benefits of that sort. That surely is common sense; and if it is common sense to say that you must leave those things out of account it is not really stretching matters very far to say that we should also leave actual marriage out of account when the consequence of taking it into account is that the law would be made so ridiculously topsy-turvy as I am trying to describe.
§ My Lords, those are the purposes of this Bill. I hope your Lordships will feel that they commend themselves as being good sense; and therefore I ask your Lordships to give the Bill a Second Reading. It can be examined further in Committee (and some parts of it are complex), but at this stage your Lordships are considering the general principles, and I commend the Bill to the House for Second Reading. I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Stow Hill.)
§ 3.10 p.m.
§ LORD GARDINER
My Lords, the House will be grateful to my noble friend Lord Stow Hill for the clarity with which he has explained this little Bill to us. Although it is a little Bill, it is not, I think, an unimportant one. It is, of course, completely non-Party political; it would be my hope that the whole House would support it. Indeed, as to the first Part, on the statutory limitations, which is a much needed reform put forward by both Law Commissions, I cannot imagine that there will be any opposition.
As to Part II, it seems to me that there are really four things to be said. First, there is no doubt at all that the existing law is deeply offensive to women. Nearly five years ago we in this House considered 536 the first annual Report of the new Law Commission. In the course of the debate on November 16, 1966, the noble Baroness, Lady Emmet of Amberley said, at column 1323:I should like to say a word about the heading in the Report referring to archaic and obsolescent procedures. I hope that this Commission will have a look at the very archaic business of judging the marriagability of a widow. It is very derogatory to a woman who is having damages assessed for the judge to assess what he thinks is her marriage value. It dates back to the old slave market attitude, and I am sure that that is something which should be abolished.No one, I think, can doubt the strength of feeling about this matter which has existed for a long time in all the women's organisations, in some of which, as I know, some of my noble friends, like Lady Phillips and Lady Summerskill, have done so much.
It must not be thought, however, that this is a view taken only by women. I appointed a Committee on personal injury litigation of which Lord Justice Winn was chairman. I do not think this point was within their terms of reference, and possibly they had that thought themselves; but the reason why they referred to it in their Report was because of the volume and vehemence of the complaints they had. They said:We are well aware, and we have had passed on to us from your Lordship's office correspondence demonstrating that representative bodies concerned with the welfare of women are gravely dissatisfied with the present practice (which is, as a matter of law, obligatory for judges charged with the task of assessing damages for widows suing under the Fatal Accidents Acts) of forming a judgment as to whether there is a probability that the individual widow will remarry and, if there appears to be such a probability, of forecasting when this may happen. This topic has been raised in Parliament and in many Press articles.We are unanimous in expressing the definite view that the law should be so changed as to obviate the continuance of the present practice.This was an all-male Committee, all lawyers very familiar with these actions in the courts.
Then, as I know, in various constituencies a good deal was made in the General Election of the publication from the Conservative political centre called Fair Deal for the Fair Sex, which said that the present practiceundeniably involves an affront to the dignity of womanhood at a peculiarly inappropriate 537 time in a widow's lift. The defence of the present system rests upon the principle that if a widow is being compensated for the economic loss flowing from the death of her husband, that loss ought to be accurately calculated. Quite apart from the personal distress which this calculation may cause to a widow and her family, the flaw in this theory lies in the number of imponderables which need to be taken into account in estimating the chances of remarriage of a particular widow who is not immediately contempt: ting it. Which of us, with a lifetime knowledge of our friends and children, can predict with any confide-ice whether, when or whom any of them is likely to marry? Our deliberations have brought us to the conclusion that the present system is unjust and unacceptable and should be altered ".Of course, it may, I suppose, be financially gratifying to a widow if she hears a judge say, "This woman is so ugly she is very unlikely to remarry, so I shall not deduct anything for that". I do not suggest he would put it in that way. One judge, I observe, said (as quoted in The Times):She would be fortunate indeed if she did marry, but being realistic one must assess the chances as low".The situation is also difficult for lawyers. It may be that a solicitor would hardly be acting properly if he said to his client, "It is natural for a woman giving evidence in a crowded court to want to look her best; but you must realise that the better you look the less damages you get, and therefore I advise you to put on your oldest clothes and not use any make-up, and if you have false teeth really it would be better to leave them behind ". Bun I suggest that a solicitor may properly say, "You may put on your best clothes if you want to look your best, and we must not deceive the court in any way: but if you sometimes use make-up and sometimes do not, you may think it more sensible not to put it on on this occasion".
The judges themselves are in a difficulty. Two years ago in the case of Buckley v. Allan, which is reported in 1967 I All England Law Reports, at page 539, Mr. Justice Phillimore (as he then was) said this—I hope the House will forgive me; it is quite a long passage, but it shows the position from the judge's point of view:Secondly, it is said that I must take into account the prospects of the plaintiff's remarrying, and must make a suitable deduction on the basis that she would be supported by her new husband. Counsel for the defendants did not ask her any question on this subject, an 538 example which was naturally followed by her counsel. Having, however, abstained from asking her anything about it—and I can well understand his not doing so—counsel for the defendants now says, and it is the conventional argument, that any woman with the sum she is likely to receive is likely to remarry. He suggested that she may not marry for perhaps seven years, but that she is likely to do so then because the children are older and largely off her hands. He says that she is an attractive woman.In this state of affairs I am wondering what is the evidence on which I must act. Am I to ask her to put on a bathing dress, because the witness box is calculated to disguise the figure? Equally, I know nothing of her temperament I know nothing of her attitude to marriage. She may have some very good reason, perhaps a religious reason, for saying that she never will remarry. She has had no chance to express her views. Has her marriage been an entiely happy experience? I do not know. On the other hand, she may already be engaged to be married. On what do I assess the chances and fix the sum to be deducted from her compensation? After all, whatever men may like to think, women do not always want to remarry. There are quite a lot of rich widows who prefer to remain single, and I confess that I am not sorry to avoid this problem.
Is a judge fitted to assess the chance or chances, or wishes of a lady about whom he knows so little and whom he has only encountered for twenty minutes when she was in the witness box, especially when no-one has broached the topic with her? Judges should, I think, act on evidence rather than guesswork. It seems to me that this particular exercise is not only unattractive but also is not one for which judges are equipped. Am I to label the plaintiff to her face as attractive or unattractive? If I have the temerity to apply the label, am I likely to be right? Supposing I say she is unattractive, it may well be that she has a friend who disagrees and has looked below the surface and found a charming character.
The fact is that this exercise is a mistake, If there are statistics as to the likelihood of a widow remarrying based on her age and the amount of her compensation, just as there are statistics on the expectancy of life, they might provide a yardstick for deduction in the absence of evidence of some special factor in the individual case. In the absence of some such yardstick I question whether, having decided what she has lost by the death of the deceased, any judge is qualified to assess whether or when she is likely to remarry. Supposing she married a man who is only concerned to spend her money? to be treated as her new support in place of her former husband? I venture to suggest it is time judges were relieved of the need to enter into this particular guessing game. In this particular case I make no deduction for this lady's chances of remarrying."
The Court of Appeal subsequently said that a judge must take this into account 539 so long as it is the law. That is obviously right; he must take it into account so long as it is the law. The difficulty seems to be that really judges do not know.
Have we not all said at one time or another, or heard somebody else say, "I cannot think what on earth he saw in her", or vice-versa, and none of us really knows whether somebody is going to remarry or not? People who never expected to marry again fall in love at the most extraordinary ages; one never can tell. The judge's guess is as likely to be wrong as to be right. I remember a very attractive young woman whom I would have expected would remarry, and the judge also took the view that within three or four years she was likely to remarry. This was some 20 or 25 years ago. She is still unmarried and has been working all the time, supporting the one child of the marriage. I do not know why she has not remarried. That is the third reason.
The question arises as to whether the way in which this Bill deals with this is right. As the learned Solicitor General said in the other place, "However you do it, it will produce an illogicality"—and he summarised the alternatives. I will explain in a moment why I venture to trouble the House on what may seem a Committee point. The first alternative is to take account of the fact of remarriage but not of the prospects of remarriage. As he pointed out, this would be absurd. It would mean that at the hearing the widow might say, "Could you sit a little longer in order to finish the case to-day because I am getting married to-morrow". The judge could not take that into account; if she had married the day before he would have had to take it into account. The second alternative is to provide that the court should take account of the fact of remarriage and of a definite and settled intention to remarry. That, as the learned Solicitor General pointed out, would, if anything, sharpen the actions of the hawks of the insurance companies rather than the opposite. He said. I think rightly, "That strikes me as getting the worst of several worlds".
The third alternative is to discard altogether subjective factors but have regard to the actuarial prospects of remarriage measured objectively by reference to the 540 age and size of family of the widow. I was at one time myself attracted to this alternative until I made every inquiry I could and satisfied myself that there simply are not the statistics from which any actuary could calculate anything at all. Nobody has any idea what is in practice the prospects of a widow of 31 with one child remarrying or, if so, when. The statistics simply do not exist.
The next alternative was nut by the learned Solicitor General in this way. He said, "The possibility of how it can be defined would be to say to the judges in some way, 'You must continue as in the past to have regard to the fact of prospects of remarriage provided you do not undertake any assessment by reference to your response subjectively to the charm and beauty of the widow before you'." If we have to tell judges to continue to have regard to the facts of life but to disregard the beauty or otherwise of a particular plaintiff, it is difficult to see how a parliamentary draftsman, with all his skill, could formulate such a prohibition over judicial inquiry. It would still leave it open to the judges to say that they must take account of the fact that the widow who had received a substantial sum of damages had by that very fact increased her prospects of remarriage. That is another factor which is sometimes brought into account. I find it difficult to see how we could warn the judges against taking account of those factors and tell them to dehumanise themselves in the personal sense but to have regard to the broader facts of life.
The next alternative is to do what the committee which produced Fair Deal for the Fair Sex suggested, and was the form in which this Bill originally started. This was to provide that, in assessing the damages, no attention should be paid to anything which had not already happened at the time of the accident. But the other place, which took a lot of trouble over this clause, found that that would be most undesirable. It would mean, for example, that if the widow was so gravely injured in the accident herself as to make it very unlikely that she would remarry, that fact could not be taken into account. It was after a long discussion on all the possible alternatives that the other place, I think rightly, took the view that the form in which it is in the Bill, simply disregarding the prospects 541 of marriage or remarriage altogether, was the only practical one.
My Lords, I apologise for having taken up your Lordships' time on this point. I have done so for this reason. Those who wish to see this Bill passed into law this Session would obviously be anxious that any unnecessary Amendment should not be put down, and I would with respect ask any noble Lord who is thinking of putting down an Amendment to appreciate that if the basis of the Bill, Part II, were to be changed so that there is a conflict between the two Houses at this point of the Session, it is most unlikely that the Bill would become law at all this Session. With those words, I commend the Bill to the House and hope that your Lordships will give it a Second Reading.
§ 3.17 p.m.
§ LORD DIPLOCK
My Lords, I join with my noble and learned friend Lord Gardiner in welcoming at any rate Part I of this Bill, although I would venture to suggest that Part II requires a little further consideration. There are two arguments against the judge or jury—in those cases in Scotland where there is a jury—taking into consideration the prospects that a widow will remarry. One of them (and I appreciate the force of it) is the Iranian emotional one, that it is distressing that this kind of matter should be canvassed in public in the courts. May I say in passing that, while I appreciate the force of that argument, my experience when trying these cases over several years is that the kind of question which has been given as an example was never asked in a case tried before me. I did not know of any case, nor did it emerge in any case which I tried, that the kind of inquiries, the dogging, shadowing by insurance companies which was referred to in one specific case took place. If that invasion of privacy is to be stopped, I would venture to suggest that it covers a much wider range than this particular matter of a widow remarrying.
My Lords, the other argument is, I think, a powerful one—what I may call the rational argument—that is, that it is difficult to make an estimate. Judges in particular are not particularly qualified to make an estimate of what a widow's prospects of remarrying are, but in the course of assessing damages in personal injury cases—and that is far and away 542 the most difficult task that a judge has to do—there are, as the noble and learned Lord pointed out, so many imponderables of which this is but one. I would venture to ask whether it is appropriate, in a Bill of this character, to make a piecemeal change in the law, and a change which runs contrary to the principles upon which damages are, and have for the last one hundred years and more, been assessed, in fatal accident cases.
As I say, it is difficult enough to assess damages in any personal injury case. The difficulty arises in applying the principle to the facts and the prospects for the future. Part II of the Bill adds to the difficulty by running counter to the principle upon which damages are assessed. Because the principle is not one of punishing the wrongdoer. Indeed, in this day and age, when the person sued is probably not the wrongdoer but his employer, and the persons who are punished are those who pay insurance premiums to the insurance company and not the individual assured, to punish the wrongdoer is outside the field of civil litigation, or it ought to be.
The principle here in fatal accident cases is that the widow and the dependants—I emphasise "the dependants"—should, so far as money can do it, be put in the same financial position as if the breadwinner, the deceased, had not been killed. Necessarily so far as the future is concerned, though not so far as the past is concerned—it is much less difficult so far as the past is concerned—that involves making an estimate of what the dependants would have received out of the earning.; of the deceased over his working life in the future and what they will receive in the changed circumstances as a result of his death; and the difference between the two is the dependency for which the principal, the widow, should be compensated.
Our system of law does not enable us to give damages in the form of an annuity of periodical payments which can take account of what has in fact happened. We have at present, even in fatal accident cases, to give damages in a lump sum, which one seeks to make a capital sum which will produce, over the years, the dependency calculated in the manner I have expressed. In making that estimate the prospects of remarriage in 90 per cent. of cases play little part.
543 Expectation of life of the widow and of the deceased, apart from the accident; prospects of promotion if he had continued to live; the sort of wages which he might have had in the future, all play a much greater part in the assessment of damages. However, I venture to think that, particularly in fatal accident cases, there is a great deal to be said for altering the law and for allowing a periodical payment to be made which will take account of what has in fact happened.
I mentioned the dependants earlier because we have been concentrating on the widow here. The amount awarded covers all those who depended upon the deceased provided they are within the necessary degree of relationship, and I think particularly of infant children, children under the age of 16, or children of university age. In the ordinary way, one of the respects in which one considers the prospects of remarriage of a widow is in deciding how much of the compensation to apportion to the children. If the widow is unlikely to remarry while they are young, then the sensible way is to give the great bulk of the compensation to the widow, in that she can spend it best for their maintenance and for their advancement. But if she is about to be married—or, under this Bill, if she is in fact married—then one makes a considerably larger apportionment to the children in order to be sure that they will have money which can be spent upon them. Whether the Bill goes through or not, I venture to hope that judges will take that into consideration, at any rate in apportioning the compensation between the children and the parents. But if the law were altered more drastically to provide, in fatal accident cases, for an annual payment, then if the widow remarried it would be possible to alter the apportionment and to ensure that the infant children were protected in the way it was intended to protect them at the original hearing.
In the case of fatal accidents, where more than 99 per cent. of the cases arise either out of traffic accidents, where there is compulsory insurance—and I hope there will be compulsory insurance for passengers soon—or out of industrial accidents where, in practice, everyone is 544 insured, the original difficulties about making awards in the form of periodical payments when the person paying the award is a private individual, disappear. Insurance companies have in the past, under workmen's compensation, made commercial arrangements and organised their business to make payments of this kind, and in my view it is worth while considering whether they could do that in fatal accident cases. But, the problem with which we are presented here is a much deeper and more fundamental problem than the mere question of whether the prospects of remarriage should be taken into consideration, or whether they alone—I will not deal with the 1959 Act to which my noble and learned friend referred—are to be left out of consideration. I venture to think that the law, as it has to be administered in the courts, is not improved by one single piecemeal alteration which runs counter to the general principles applicable. I venture to suggest that this is a matter which deserves consideration in much greater depth—and not merely this aspect of the widow's rights, but the much more general aspects of the widow's rights. Merely to deal with this piecemeal is to make the position worse than it was.
I must say that when I read the Bill in the form that it came from another place and saw that there should not be taken into account not merely the prospects of remarriage but the actual remarriage, and considered the case of a childless widow already married to a richer man, I asked myself: what is the exercise that I should have had to do as a judge in that case? I suppose I should have had to consider the prospect of her remaining single or marrying a different man with less wages coming in, and should have paid no account to the fact that, as events had turned out, she was much better off financially as a result of the death. Then I took the converse case where a widow had married a poorer man. According to this Bill, I must go through exactly the same exercise as I did in the first case and award to her the same amount of damages, although the former woman was much better off financially as a result of the death, and the latter was very much worse off.
Under the law as it stands at present, one would make allowance for the fact 545 that a remarried widow was worse off, despite her marriage, as a result of the accident. But under the Bill, as I see it, one cannot do that. As I said at the beginning, assessing damages is a very difficult task—indeed, perhaps the only really difficult task that a judge has to do. I venture to think that in its present form this Bill will add to that difficulty, and will not effectively attack the problem which ought to be attacked.
§ LORD DAVIES OF LEEK
My Lords, before the noble and learned Lord sits down, may I, with deference, and perhaps a little misunderstanding, ask him to help somebody who is a layman in this esoteric region of assessing the damages that should be given to a widow? Why should any account whatsoever be taken of what the mysterious future may hold? If I were a widow with a face like a horse, I should resent it if I were given a high rate of damages because I was an ugly-looking wench. But if I were a forthcoming and attractive wench my chances of marrying a film star or a rich judge would be great, and my damages would be reduced. This is esoteric, and has nothing whatsoever to do with the human side. May I suggest, with all due respect—and I hope I never come before any noble and learned judge; up to now I have managed to escape it—that the job of a learned member of the Bench is to judge the assessment at the moment of transition.
§ THE MINISTER OF STATE, DEPARTMENT OF HEALTH AND SOCIAL SECURITY (LORD ABERDARE)
My Lords, I hope that the noble Lord will excuse me for interrupting. I think he is making a speech, and he really ought only to ask a brief question of the noble and learned Lord, who has already sat down.
§ LORD DAVIES OF LEEK
My Lords, I certainly accept that rebuff and I beg your Lordships' pardon. But may I have a little guidance on this point?
§ LORD DIPLOCK
My Lords, the whole purpose of giving damages under the Fatal Accidents Acts is to make provision for the future of the dependants who are claiming the compensation. That is what it is all about.
§ LORD GARDINER
My Lords, would not the noble and learned Lord agree that 546 the judges are directed by Parliament to over-compensate some widows, who have a lot of insurance money which they would never have had but for the death? Was that not a social decision taken by Parliament on social grounds just as the other House has passed this Bill as a social decision?
§ 3.45 p.m.
BARONESS SUM MERSKILL
My Lords, I do not think the noble Lord, Lord Stow Hill, need anticipate any opposition to Part I of this Bill. On Part I, I would say that I have particularly in mind the cases of byssinosis and pneumoconiosis—dust diseases which are accompanied by the most distressing symptoms. Apart from that fact, there is the unhappy lot of the relatives who find it difficult to prove the origin of the disease and, in consequence of the Limitation Act 1963, are often subject to great hardship.
But I hope that Part II of this Bill will be equally acceptable. I listened to what the noble and learned Lord, Lord Diplock, said about considering the matter in depth. But may I say this to him? I have listened to the gallant contributions from the noble and learned Lords, who are exceptional men. We cannot regard the noble and learned Lords who have spoken as examples of the law; they are exceptional. But too many lawyers live in the past and find it difficult to apply themselves to new ideas. What is wrong is that the law has failed to assess properly the value of a woman. There is, for instance, the evaluation of the housewife. The noble and learned Lord, Lord Diplock, has to-day explained what was in his mind. I want to tell the House that the time has arrived—and the only time when we can discuss this matter is on the Second Reading of a Bill of this nature—when we must evaluate in an entirely different way the contribution which the housewife makes to the home.
May I remind the House of an incident during the last war when, in order to impress upon the population that enemy agents might be within earshot, posters were exhibited bearing the injunction, "Be like Dad; keep Mum." I recall rising in another place, and asking whether that represented the wife's economic position in war time or indeed, any other time. Was she simply kept, as we have heard from the noble and learned 547 Lord, Lord Diplock, or did she provide a valuable service? That is the question which must be asked in this century. Fortunately, an enlightened Minister took my point, and that offensive poster was removed forthwith.
The Bill now before us once more focuses attention on the economic position of the housewife; and, unhappily, there are too many men in positions of authority whose minds are frozen in an outmoded concept of a woman's role. Successive Governments, whatever their Party, have failed to recognise the value of a woman's service to the family and to the community. She not only bears the children, but cooks, cleans, washes and nurses, and thereby enables her husband to work outside the home, and in time to acquire new skills, while she, whatever her talents, is doomed to the routine of the home for many years.
The noble and learned Lord, Lord Simon of Glaisdale, the former President of the Divorce Court, whom we are so fortunate to have in this House now, put it this way:The cock bird can feather his nest precisely because he is not required to spend most of his time sitting on it.This is a matter for laughter among many men, but it is not a matter for laughter among women. Surely equity demands to-day that the woman who works in the home should be treated as an equal partner in marriage. The wage packet is not handed to her, but she is serving in such a way that the husband can do as he pleases and receive the wage packet himself. But the fact is—and this, of course, is where the law has been gravely at fault; as well, of course, as Parliament—that she is not legally entitled in her own right to any financial reward except half the savings from her housekeeping allowance, a right which stems from the Married Women's Property Act 1964, which I had the great honour of piloting through your Lordships' House.
I take the view that when a marriage comes to an end through the kind of accident that we have heard described this afternoon the wife should be treated as a partner in that marriage, irrespective of any future activity, marriage or otherwise. But, my Lords, the law decrees 548 that the solution of her problems is to find a man who will keep her; and in order to assess her chances of this the bereaved woman, as we have heard, is expected to parade her physical attributes in the court, when the judge, a complete stranger, decides how soon some man, irrespective of his morals, his health or his employability, may turn up to offer her bed and board.
Of course, there have been enlightened judges, like Lord Phillimore, from whose speech the noble and learned Lord, Lord Gardiner, quoted this afternoon. He questioned his capacity to judge of a woman's attractions by examining what he could see in the witness box. However, my Lords, as beauty is in the eye of the beholder, it is not surprising that some judges differ in their tastes. In one case, Lord Justice Davies cut the damages of a young widow of 26, with two children, from £8,000 to £5,500, observing, after looking her over, that it would be a matter of surprise if the young lady had not remarried by the time she was 30. The noble Lord, Lord Davies of Leek, is Welsh, and he and I have a great respect for this particular judge, who of course was doing his duty in trying to interpret the law. But I suspect that that woman may have been a brunette, for most Welsh women are dark. Perhaps if she had worn a tatty blonde wig when she went to court she might have had her damages increased.
My Lords, this position is ridiculous. Not only is it tragic, but it tends to ridicule the whole process of our law. It is difficult to understand why this primitive approach to such a tragic situation has been tolerated in our courts and why damages awards should vary in reverse ratio to a woman's physical attraction. It could be argued that, having allowed the prospect of another husband to influence his judgment, a judge should make a proviso—and this seems logical—that in the event of the next husband not being able to provide the same standard of living as the first, the damages should be revised. That, surely, would be the logical outcome. Or, since a wife's financial position depends solely on the generosity, or lack of generosity, of her husband, the pertinent questions should be: did he reveal the amount of his wages? What proportion did he give her for housekeeping? Did it enable her to 549 effect any savings on her own behalf? Was her name on the title deeds of the house? Some lawyers may think that these criteria might determine damages for her loss. However, my Lords, although this seems logical, this relationship cannot possibly represent a partnership. Moreover, this method of assessment would result in the wife of a mean man receiving less in damages than the wife of a just man, and therefore this approach is unrealistic.
My Lords, most men say that they cannot understand women. What can a judge learn about the quality of a woman's mind in such a short period of remote contact? If the wife had had a drinker, gambler or a brute for a husband, why should it be assumed that she is anxious to risk repeating the experience? Does that ever occur to the judge? Furthermore, a woman with some talent which has been frustrated owing to the demands of a family may look forward to enjoying freedom from the domestic chores; and in these days, when we are giving girls higher education, when we are teaching them what a wonderful world there is outside the kitchen and the chores, is it not likely that a girl, having had a husband, having had children, will now say to herself, "This accident was deplorable, but at least it will give me an opportunity to see a new world before I die."? Furthermore, why should the amount that she will receive be related to an unknown quantity; namely, the character of some man who may prove worthless? As to its being a lump sum, I question the wisdom of this. Should the lump sum be allowed to encourage, through loneliness, fear of the future, or of sexual deprivation a hurried marriage—a marriage which may subsequently prove disastrous?
Whatever a woman's luck in the first marriage lottery was, she has in the great majority of cases proved herself to be a working partner, and for these reasons I believe that damages should not be given in a lump sum but at regular intervals, and should bear no relationship to the next phase in her life. I think it is important for noble Lords to recognise that they and women have various phases in their lives. When one phase is over, let them go on to the next without 550 being handicapped by the first. I believe that such a woman should be allowed to determine her own destiny, and if she chooses remarriage or any other activity her compensation for the loss of her first partner should continue. If that woman had lost a leg, she would have had compensation for the rest of her life although she might get a better job, a sedentary job, and be paid more. Here, a woman has lost her husband, who made a contribution to the home which of course enabled her to live and look after the children. But why should the compensation cease when he goes? Why should it not continue for life?
Finally, I want to say this. I regret that the Law Commission have failed to grasp this comparatively small nettle. Is it because the Commissioners are all men? Of course there are brilliant women in subordinate positions, as in the Church; but I am sorry that they have not faced up to this problem, and I suspect that they have simply viewed it subjectively and consequently, as the Solicitor General said in another place, decided to "leave it on the plate". This, my Lords, is only another of the legal injustices to which women are subjected. Successive Governments, fearful of jeopardising the male vote, lack the moral courage to tackle legal disabilities which stem from custom and prejudice. Consequently these are dealt with in a piecemeal fashion by Private Members' legislation, of which this Bill is an example. The noble and learned Lord who has just spoken complained at this being piecemeal legislation. I invite him to examine over the last few years the legislation which seeks to remedy injustices suffered by women, and he will find that it has been done in precisely the same way, by Private Members' legislation. I therefore earnestly hope that the Government will consider drafting a comprehensive code to deal with, among other things, the economic position of the woman who works in the home.
§ 4.0 p.m.
§ BARONESS WHITE
My Lords, I wish briefly to support the Motion for the Second Reading of this Bill. I shall say a few words on the first Part of the Bill which alters the provisions about the limitation period imposed on the bringing of actions. This is of special interest to those of us who are 551 connected with the mining areas. It was not by chance that this Bill was introduced in another place by the Member sitting for Aberdare: it was because those of us who have experience in the mining areas know of a number of cases where the possibility of proving the cause of death is very difficult within the short period at present allowed. Therefore it is not surprising that we who are interested in industrial accidents, particularly in the mining industry, greatly welcome the first Part of the Bill. There has been a general welcome for it; therefore I need say nothing further about that.
There was a third Part of the Bill. This has been dropped. The controversial part is Part II, concerning damages for widows. The noble and learned Lord, Lord Diplock, complained that here the matter was being tackled piecemeal. This has been a matter of concern for a number of years. It has certainly been an irritant to those of us connected with various women's organisations. A woman may possibly appear in court before not so kindly a judge; she is placed in a very difficult position, one which we think is humiliating and one in which we believe she should not be asked to appear. Even if one puts that aspect on one side and says that one has to face life as it comes and should not make too much of an argument about emotion or distress, it seems to me that it is also repugnant to reason that this particular aspect has to be taken into account by learned judges. This was pointed out, as my noble and learned friend Lord Gardiner said, by the Winn Committee, who, although they felt that it was not within their own terms of reference to produce a solution, made it clear that they thought that the present law was not satisfactory, and that it vas unsatisfactory to expect a learned judge to decide not merely whether a lady would marry again but also to calculate the period of time within which this event might be expected to occur.
The present Administration were not directly responsible for the Conservative Party document Fair Deal for the Fair Sex, but it was issued under the auspices of the Conservative Party. They made great play of this particular matter, and the solution suggested by Conservative lawyers (of whom I believe the present Solicitor-General was one) is the solution proposed in this Bill: namely, that in 552 assessing damages account should not be taken of the prospects of remarriage, or even of actual remarriage. I appreciate that actual remarriage has caused considerable doubt and concern. It was very fully discussed in another place. I think that the Solicitor General put the matter in a nutshell when he said that either we leave the law as it is, based on the Statute of 1846, or, if we are going to change it, we should change it in the terms proposed in this Bill—that there is no halfway house. He went through the possible ways of dealing, with this seriatim. My noble and learned friend Lord Gardiner referred to some of his points and I think he, too, concluded that there was no other resting place. If one tries various alternative proposals one may land in greater difficulties.
The noble and learned Lord, Lord Diplock, said that the Bill was contrary to the principle on which damages are at present assessed. I am a lay person, and subject to correction in this matter, but, as I understand the position, one has to take into account various other imponderables, including, for example, the prospects of promotion of the deceased husband. One has to make various guesses which seem to be inescapable in the circumstances. But having made all these guesses, one must make a further guess which seems to be inescapable in remarriage. I cannot see why one should not stop before that particular hypothetical point. One makes one's calculations as best one can. I understand that one now makes these calculations and then has to ask oneself, "How much should I deduct from the amount that I would otherwise think appropriate, because having looked at the lady I think that she may well remarry within three or four years?" The noble and learned Lord, Lord Diplock, shakes his head; but it seems to me that this is the only logical way in which a learned judge can approach the matter. He makes other calculations and then brings in this factor: will she marry or will she not marry: and if so, how soon? It seems to me that he just cannot ask himself that particular question. At present he is instructed to do so.
It may well be that one should look in greater depth at the whole problem; that such payments would be more suitably made on an annuity basis rather than on 553 the basis of a lump sum. I do not entirely agree with my noble friend Lady Summerskill in what I take to be her attitude on this matter. Nevertheless, this could be arguable and it was argued in fact, though I thought superficially, in another place. But if we pass the Bill which is before us to-day this much wider question could still be examined. I should be anxious if any such arrangements were made that it is not made more difficult for a woman to marry again because the payments may cease at that point. Particularly if she should have children, it seems to me completely reprehensible to suggest that a woman should enter into a second marriage and expect the step-father to take the entire responsibility for the children of the previous marriage. This puts her in a weak and dependent position in her choice of a second husband. I think that that would be entirely reprehensible.
I should not necessarily be against an examination into the whole question of how such matters are dealt with, whether by lump sum or annuity, but I feel that it is quite wrong that a woman should be placed in a position where someone who does not know her, who cannot possibly know her inward heart or mind, decides on her behalf, so to speak, that she shall have less or more according to whether he imagines (for it can be no more than imagination) that she will marry or will not marry. This is not only an incalculable hypothesis but is insulting to the person concerned. She has her own thoughts and feelings and attitude towards life. It is not for her to have to tell the judge what they may be; in any case, no one knows what the chances of life may be. But one fact which is before the court is the loss of the previous husband and that is the basis, surely, on which the calculations should be made.
The noble and learned Lord, Lord Diplock, said that he disliked piecemeal legislation. Here I agree with my noble friend Lady Summerskill: piecemeal legislation is the only way by which Parliament can legislate at all. If one waited for comprehensive and perfect reform of the law one would find that it simply does not happen.
§ BARONESS WHITE
I speak, my Lords, with some little experience in another House, having been concerned in a number of reforms, particularly in matters of personal and family law. Therefore it seems to me that the sensible thing for us to do is to give the Bill a Second Reading to-day. By so doing we shall, I think, be meeting the well-known and clearly expressed wishes of the majority of women in this country.
§ 4.11 p.m.
§ LORD SILKIN
My Lords, I want to say a few words about Part II of the Bill because I do not want it to be thought that the noble and learned Lord, Lord Diplock, is alone in his doubts about that Part. A case has been made for it on the ground that it is extremely difficult for any judge, on seeing a woman for the first time, to come to a decision as to her chances of getting married again and to decide how much he should deduct from the damages. But it is a material factor and the judge has to decide. It is always a difficult matter to decide on the amount of damages to award, and to decide what the woman has lost. Whatever my noble friend Lady Summerskill may say—and she made her usual speech about the rights of women and their subordinate position—the judge has to make this decision. He may take into account that the woman concerned will get on and pursue a profitable career for herself: or that she is not incapable of doing so.
These are factors which the judge should take into account. He should be deciding what will be the woman's future; whether or not she is the sort of person who is likely to get married within a reasonable time. I agree with the noble and learned Lord, Lord Diplock, that it is a pity that damages have to be paid once and for all. If they could be paid over a period, so that it would be possible to see whether the circumstances changed, I think justice would be done. But, my Lords, justice has to be done between two individuals. It is necessary to see that the plaintiff is properly compensated for the loss she has suffered; but also justice must be done to the defendant, and it is necessary to see that he is not called on to pay more than he ought to pay by way of compensation. In many cases, 555 especially those such as that quoted regarding a good-looking girl of twenty-six, I think that the plaintiff would be over-compensated if the possibility, or likelihood, of her getting married again were disregarded entirely.
My Lords, I do not want to repeat myself. I think that the noble and learned Lord, Lord Diplock, has said all that it is necessary to say. All I rose to say was that I feel the same doubts that he feels and I hope that we might eliminate Part II from this Bill and look at the whole question again. It is much more than this isolated matter regarding widows. It is a much bigger question, and I hope that, as a matter of urgency, we shall ask the Law Commission to look at it again.
§ 4.15 p.m.
§ THE, LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE)
My Lords, I should like to say a word or two about both Parts of the Bill. Before I do so, may I say one thing about the Bill as a whole? When I was consulted about this Bill I made it very clear that there were two very different subjects under discussion: one which, at any rate in my judgment, would give rise to no controversy at all, and one which, inevitably, whatever one might think about it, would give rise to a good deal of controversy. And, except for the fact that both subjects had to do with whether damages were to be assessed, and if so in what amount, for personal injury or death, they had nothing in common with each other. I still adhere to the view that this should have been two operations and not one. In that event the House would have been spared the agonising dilemma, which, tactfully, as usual, the noble and learned Lord, Lord Gardiner, put to it: that it may have the choice between making a botched job or losing the Bill altogether owing to the exigencies of the Parliamentary timetable. I should be extremely sorry to lose Part I on any terms, I will come to Part II in a moment.
Part I is a law reform measure pure and simple. It gives effect to the recommendations of both Law Commissions. It represents Government policy, and so far as I can, I will do my best to see that it gets on to the Statute Book. Part II 556 is as purely a private enterprise operation as the first Part was the result of the efforts of the Law Commissions. It represents the older, more exciting and perhaps less professional approach to law reform; laudably seeking to end what is regarded as a particular abuse and less concerned with the effect of the proposed reform on the coherent rationality of the law as a whole, or the kind of task with which the judges will be confronted if the particular reform is put into effect.
I quite take the point which the noble Baroness, Lady White, has just put: nobody can complain of law reform simply because it is piecemeal After all, Parliament being what it is, one has to take advantage of the slots in the Parliamentary timetable that are available. There are a whole range of topics (and, incidentally, I would not put women's rights necessarily as the only one; or even as one of the principal ones) which lend themselves more easily to Private Members' legislation than to Government legislation with the Whips behind them. In respect of many Bills which have found their way to the Statute Book in recent years use has been made of this ladder, rather than the official ladder, in order to get them there.
What I think my noble and learned friend Lord Diplock, speaking from the Cross-Benches, was seeking to put to the House was not simply that the Bill was piecemeal, in the sense which the noble Baroness rightly defended piecemeal legislation. but that it was a piece of cloth put on to an old garment and inevitably likely to create the kind of trouble that—as the right reverend Prelate would be warning us—arises when new cloth is put on to an old garment. It is no good saying, with the noble Baroness, Lady Summerskill, that lawyers are apt to find it difficult to assimilate new ideas. This may or may not be true. What is true is that the law is not of the lawyers' creation. The law affected by Part II is the sole product of the labours of Parliament. It is not judge-made law; it is Parliamentary law. And it is very difficult, as my noble and learned friend was seeking to argue, to suture on to the old garment with which Parliament has provided us an idea that is incompatible with the nature of the fabric which Parliament has chosen to weave. This may be presenting a judge with a difficult problem.
557 I should like, if I may, to go back for one moment to Part I of the Bill, which I wholeheartedly commend. The Act of 1963, as the noble Lord, Lord Stow Hill, reminded us, came under criticism recently on two grounds. The first related to the inability of the dependants of a deceased person to take advantage of the 1963 Act for the purposes of the Fatal Accidents Act. As matters now stand, the period within which they are compelled to take proceedings is twelve months from the date of death, irrespective of the date on which the dependants became aware of the essential facts which gave rise to the cause of action. This result was intended in the Act, but in practice it was found to give rise to anomalies. For instance, a single set of circumstances might lead to several men contracting the same insidious industrial disease as a result of negligence or breach of statutory duty by their employer, and the facts might come to light only after more than three years had elapsed. A survivor—a living plaintiff, who was ill but still alive—would, under the Act of 1963, have a further twelve months from his "date of knowledge" within which to take action. But in the case of another man, who had died, his widow would be unable to claim damages, either under Scottish law—that is, Common Law—or under the Fatal Accidents Act if the husband's death occurred more than twelve months before the issue of proceedings.
The second criticism was that a period of twelve months from the date of knowledge was too short. This was a complaint voiced very articulately by the Durham mineworkers concerned with cases of pneumoconiosis. In particular, there was a claim against the National Coal Board by a mineworker whose case was settled in January, 1970, and it was claimed, I think with some reason, that the same considerations might apply to others who require expert medical and legal advice before they institute proceedings.
It was a result of these instances that the last Administration asked the two Law Commissions for advice on these two points, and both Commissions have advised that dependants should be put in the same position as a living claimant, so that it would be the dependant's state 558 of knowledge from which the time should run in order that he could take advantage of the additional period. The Scottish Law Commission—with the English Law Commission in principle concurring, but saying that they had hitherto discovered no injustice—recommended that the period of additional time should be extended from twelve months to three years. The result of this is accurately reflected in Part I of the Bill, and I can say honestly that I wholeheartedly commend it to the House.
I now come to Part II of the Bill. May I say, first, that although it seems very hard it is of the essence of the matter that the Fatal Accidents Act, and the comparable Scottish Law, I believe, does not take account of human sorrow to any extent at all. I myself think, though I know that there are many who differ from me, more non-lawyers than lawyers, that this is quite right, because I should not wish myself to place a money value on human sorrow as such. But the result is a somewhat cold-blooded calculation. A widow who becomes better off or no worse off on the death of her husband gets no damages; the widow who is worse off gets what she has lost in terms of money—in principle nothing more but also in principle nothing less. This is also true of others dependants, of the widow's children, as my noble and learned friend Lord Diplock said.
There are of course certain exceptions to this rule. The noble and learned Lord, Lord Stow Hill, referred to insurance benefits which under two statutory exceptions do not count. Whether that is right or wrong—and I am sure myself that it is right—is open to question and it has been questioned. Personally, I doubt whether the exception in that case is quite as illogical as the noble Lord argued. There are arguments both ways, but the point has a certain indirect reference to the point that is relevant for the purpose of Part II of the Bill. The relevant problem comes where a widow remarries. When she is actually remarried at the time of hearing, I have not heard in practice much legitimate complaint, but I agree with the noble and learned Lord, Lord Gardiner, that if we are to tackle the problem in this way, to keep in an actual remarriage but leave out the prospect of remarriage, whether or not there was a firm engagement, would leave more anomalies than 559 it would solve. I do not think that there is any doubt about this. After considering it and having to some extent hesitated on the point, I would now unhesitatingly advise your Lordships that this halfway house is not really a starter for the reasons which have been given by several speakers.
But how about the prospective remarriage when there is not a firm engagement? It is suggested to be the law, and I think it is established to be the law, that a judge should have a good look at the widow to consider whether she is marriageable and to reduce the damages in proportion to the effect she has on him. I venture to suggest that this is a task no judge who is a gentleman would willingly undertake; and if he did so, the subjective judgment he formed would be utterly valueless. I have always declared myself as a member of the Bar, so far as I can differ from the great, an unrepentant Phillimorian on this issue. I think that subjective judgments are best left out of account. And I was very disappointed when the Court of Appeal established the law in the contrary sense. I think that if they had taken the same view as the judge of first instance, which I believe and always have believed to be the sensible one, we should probably not be having this debate at all. But they did not.
So far I am wholly on the side of reform. But the difficulty arises from the way in which the reformers have framed their proposals. How is it possible to assess damage in cases depending solely on financial loss as the criterion of damage, when some of the facts of life are taken into account and others are not? The Bill says that neither actual remarriage nor the prospects of remarriage should be taken into account, but it does not say on what basis damages are to be assessed. I am not sure how the sponsors of the Bill want them to be assessed. The difficulties of actuarial guesswork are well known to practitioners, and I would accept without having made my own researches that the noble and learned Lord, Lord Gardiner, accurately represented the state of actuarial knowledge when he said that actuarial statistics are not available in this case. But is it really justice—this is a question that 560 the House must face—that a widow of 19 with no children should get more damages than a widow of 45 with six children? Yet this would appear to be the result of the Bill as drafted at the moment.
Assume, for the sake of argument, in each case a dependancy of £10 a week for the widow alone—because the children are assessed separately—and assume, for the sake of argument for the moment, that in each case the deceased husband is the same age as his wife: I do that particularly for the purposes of the calculation. A widow of 45 on that basis will get about £520 multiplied by 15—that is to say, £7,800—as her dependency to the age of her husband's retirement. There will not be very much reduction on that; there probably will not be very much increase on it. At the same rate, a widow of 19 may get £520 multiplied by 46, which is nearly £24,000, although everyone knows that she will either enter into some gainful occupation or remarry. She probably would not get as much as that, but one cannot dogmatise because one does not know how the judges are going to set about it under this Bill. But under this Bill she certainly would not get less than £10,000. So a widow of 19, with no children, would get £10,000, so far as I can see, and a widow of 45 with six children—leaving herself out of account—would get only £7,800.
I cannot see that that, as it stands, makes absolute sense. I may be wrong I may be stupid; I may be unable to appreciate new ideas, but that seems to me to be an odd result to achieve. Perhaps the courts, not being allowed to take into account her prospect of remarriage, will assume that she enters some gainful occupation and does not remarry. But the Bill, as drafted, says that no account is to be taken of her prospects of remarriage. Therefore I suppose they must be in doubt as to whether she will enter in to any gainful occupation, or for what length of time she will enter into it. I suppose that the Bill, as drafted, means that the court must not assume that she either does remarry or does not remarry.
If the Bill is passed in its present form I suppose the courts will have to try to make sense of it, but I do not wholly envy them their task. It seems to me that enthsusiastic law reform is apt to push the unfortunate judges from time to time 561 out of the frying pan into the fire, and nobody seems to sympathise with them when they get there. I think it is my job to sympathise with them as long as I occupy my present position. I must say that I wish that bright ideas of this kind, which are obviously based on a genuine sense of injustice, could be more fully processed before being presented to Parliament. However that may be, we have this baby—or rather this pair of somewhat dissimilar twins—on our doorstep. I think that both should be given a Second Reading, but I hope that the younger infant will receive a little more careful examination in Committee.
There is a third matter that I should mention to the House, quite shortly, which, though the Bill does not deal with it at present, I am afraid that, contrary to some of the things I have been saying, I should wish to take the legislative opportunity afforded by the Bill to deal with piecemeal myself. Widows' damages are at present controlled by the court in a manner which I do not think can any longer be justified in the light of the status accorded to women by universal consent. They are shut up in court, and the widow has to obtain the leave of the court before she can get full control of the sum. I shall invite the House before the measure reaches the Statute Book to take the chance of this Bill to put an end to this power of the courts over damages, and I have some reason to hope that if I put such a provision into the Bill there will not be any controversy in another place—because if there were I should not use the Bill for this purpose. My Lords, on the first Part of the Bill, I am wholeheartedly in agreement. I remain a benevolent neutral on the second Part. There can be no question at all of Government Whipping, and we shall take the decision of the House.
§ 4.35 p.m.
§ LORD STOW HILL
My Lords, think it is in accordance with the custom of your Lordships' House that the mover of the Bill replies to the debate, and I would begin by saying that I am most grateful to Members of your Lordships' House who have taken part for the obvious care that they have devoted to the subject under discussion. I have the advantage of starting from this situation: that one former Lord Chancellor 562 and one present Lord Chancellor are both Phillimorians and advocate the view that if you are going to change the law at all you should disregard not only prospects of remarriage but actual remarriage. So I start from a very advantageous position.
I am also greatly invigorated and exhilarated to think that the two lady Members of your Lordships' House who have spoken have also supported me. And I am encouraged, if I may say so in reply to the noble and learned Lord, Lord Diplock, who regretted a piecemeal approach, to say: May I not, in the circumstances which I have just outlined, say with another distinguished Lady, Lady Macbeth:Out, out damned spot! "?—because my case really about Part II is that the law as at present is (I hope that I speak with moderation and restraint) a "damned spot" on our legislation. It is degrading. It is repulsive that widows should be put in the situation which I have sought to describe.
My noble friend Lord Silkin said that the argument really was that the law was difficult to administer. That is only one half of the argument. The more compelling half which I would venture to put before your Lordships is that which centres upon the use of derogatory adjectives such as "repulsive". I submit that this is a repulsive aspect of the law, and it is, in Lady Macbeth's phrase, a "damned spot" that we should remove from it. I would say that particularly to the noble and learned Lord, Lord Diplock, because his most interesting argument was directed to the theme (I think I am fair to him when I say this) that once you approach the subject of damages you should recognise it as a single pattern, a very complicated pattern, and you should overhaul it completely.
The noble and learned Lord the Lord Chancellor used the simile of a new piece of cloth patched on an old piece of cloth, and I think that both noble and learned Lords were facing in the same direction. If I may say so to the noble and learned Lord, Lord Diplock, I should be very sorry indeed if Parliament adopted the attitude that it frowned upon piecemeal legislation. Enormous changes have been made by Private Members' Bills. If one combed the Statute Book, one would, I submit, find, over and over again, that 563 Parliament has addressed itself to a particular awkward angle and has dealt with that. If we delayed reform until we could accomplish the immense task of completely overhauling—as an example—such a major aspect of our law as the law of damages, progress would be extremely slow and injustice would be much more rife than it is to-day. I submit respectfully to the noble and learned Lord that we should gladly and readily say that we can deal with this particular aspect of the matter now, and let us do so. I would add that I certainly do not differ from him when he implies in his argument that we should in due course, when it is possible in terms of Parliamentary time and when the necessary researches have been made, address ourselves to the law of damages as a whole. I should be the last person to question that. But, my Lords, not now. Nor should that consideration be used as a consideration by way of an obstruction to this isolated and necessary piece of limited change in our existing arrangements.
As to the difficulty of administering this legislation, the noble and learned Lord took for example the case of two widows, one who had remarried a new husband who earned more than her deceased husband, and the other who had remarried a new husband who earned less than the husband who had met with the accident that led to his death. He said: "Where do I go from there? How difficult it is to administer the law when one takes into account that sort of situation!" I cordially agreed with my noble and learned friend Lord Gardiner when he intervened to ask a question which I should like to put to the noble and learned Lord, Lord Diplock: What about insurance monies? I picture the noble and learned Lord (not so sitting now, because it would not be part of his duties) sitting as a judge of first instance and having before him a widow who had been married to a man who had met his death when earning a modest salary—a widow who had had the advantage (if I may so describe it) that his death put her in possession of a very substantial sum by way of insurance. She drives up to court in a Rolls Royce which she could never have afforded before.
The law says, in terms, and has said so since 1908, that learned judges are to 564 put that situation out of their minds. That is producing an unreal result. The noble and learned Lord the Lord Chancellor felt difficulty in accepting the proposition that a widow of 39 years of age might have a multiple of 15 applied to the compensation that she received, and that it would be unreasonable that an attractive young widow of 21 years of age should have a multiple of whatever the figure would be—44—applied in the assessment of her compensation. There is nothing in this Bill, nor in the law so far as it exists, which would preclude a judge from taking into account the prospects of her obtaining gainful employment. This Bill does not touch that matter. It draws a ring round a limited situation which deals with actual or prospective marriage. Why? Because it is repulsive that the judges should have to concern themselves with it.
§ THE LORD CHANCELLOR
My Lords, I am sorry to interrupt the noble Lord, but how can they take into account the prospect of employment, which will not be possible if the widow remarries, if the Bill says in terms that on no account shall they take into account the prospect of remarriage?
§ LORD STOW HILL
My Lords. I suppose they will say to themselves: "What are we told by Statute to do? We are asked to hear argument by counsel that the particular widow is likely to remarry. We are told by Statute that we are not to take that into account. Equally, we are asked by counsel to take into account the fact that the widow is remarried. That we are told by Statute we are not to take into account. Anything else we may take into account, remarried, or not remarried with bright or poor prospects of remarriage. The lady may engage in gainful occupation, and, that being so, it should be taken into account." It may well be that learned judges, directing themselves in the future, will do that. That is nothing like so difficult as the problem of the case of a lady who has received £50,000 as a result of a policy of insurance. Is she likely to engage in gainful occupation? The learned judge is told he must not take into account that she has in that case £50,000. What, then, with regard to gainful employment?
§ THE LORD CHANCELLOR
My Lords, I am sorry again to interrupt the noble Lord, but surely he is wrong about that. The 1908 Statute says that he must not take into account the £50,000 in order to assess the damage. He must not take into account against her the amount of money she receives under the insurance policy. That is not saying, as this proposition is, that he must not take into account something upon which her ability to engage in activities which may produce income must to some extent depend. They are not two comparable exceptions.
§ LORD STOW HILL
My Lords, I submit that they are exactly comparable. The noble and learned Lord the Lord Chancellor will get in great trouble with my noble friend, Lady Summerskill, if he is going to say that ladies who are married never work. They certainly may work, and there is nothing in the fact that the widow in question may have excellent prospects of remarriage or have remarried which will prevent her from working in future. If you assume that lady is in possession of £50,000, it is much less likely that she is going to get a job as a typist, a personal representative, or something of that sort, earning a very modest salary. When the noble and learned Lord, Lord Diplock, was sitting as a learned judge of first instance, if he had had the case of a lady with £50,000 in her pocket and had had to ask himself, "Was it likely that she would engage in gainful occupation?", I hesitate to speculate how even such a distinguished lawyer as he is would have addressed himself to answering that problem. One is in the realm of unreality, anyhow. We have been in the realm of unreality since 1908 in assessing damages.
§ LORD CONESFORD
My Lords, I am much obliged to the noble Lord for yielding. I want to clear my mind and ask the answer to this simple question. He says that if this Bill were passed in its present form, the judges might have to take into account the prospect of the lady's entering gainful employment. But suppose she gives evidence that in no circumstances will she enter gainful employment. If she is young, will she then increase her damages, with the result put by my noble and learned friend on the Woolsack that the lady of 23 will 566 get much more damages than the widow of 50 with six children?
§ LORD STOW HILL
My Lords, that is the type of question one cannot answer without knowing more of the circumstances. When she says: "In no circumstances will I engage in gainful employment", is that because she does not know how to earn money—that she has no qualification?
§ LORD CONESFORD
No, my Lords, for the simple reason that the law will say that she can thereby increase her damages.
§ LORD STOW HILL
My Lords, whatever tile right answer is—and I should very much enjoy a controversy with the noble Lord and with the noble and learned Lord, Lord Diplock—one looks to the existing law to find the result of that: it is not within the purview of this Bill at all. This Bill does not alter the answers that would have to be given in that type of situation. This Bill has a much more modest objective: it simply says, as the 1908 legislation and the 1959 legislation said, that certain things have to be left out of account. The question arises: Does that produce an unreal result? In both cases the answer must be "Yes". You cannot pretend that a lady who has £50,000 in her pocket has nothing in her pocket.
If it is said that this Bill produces an unreal result, then so be it; let it be so. As I said earlier, logic is often bad law. We have spent centuries trying to accommodate our law to the vagaries of human conduct. Let us on this one occasion do what Lady Macbeth said: get rid of something which is thoroughly obscene and ugly in our law, and get nearer to civilisation and to that proposition to which my noble friend Lady Summerskill would so readily assent: that women are not chattels; that they have feelings and that those feelings should be taken into account in the case of a widow who is in that terrible position. If any of our wives were in that position we should feel strongly—if we could, in another world—the indignity which we are inflicting on them as the law stands at the present time. My Lords, 567 I hope the House will give this Bill a Second Reading.
§ On Question, Bill read 2ª, and committed to a Committee of the Whole House.