HL Deb 06 May 1971 vol 318 cc521-49

6.53 p.m.

LORD STOW HILL

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Stow Hill.)

House in Committee accordingly.

[The LORD ST. HELENS in the Chair.]

Clauses 1 to 3 agreed to.

LORD DIPLOCK moved Amendment No. After Clause 3, insert the following new clause:

Periodical payments to widows and other dependants

".—(1) In any action for damages brought under the Fatal Accidents Acts, 1846 to 1959, the court shall have power to make an order (in this section called a "periodical payments order") for the payment by the Defendant to any dependant for whose benefit the action is brought of such sums of money at such intervals and during such period as may be specified in the order.

(2) A periodical payments order may be made instead of or in addition to any judgment for a lump sum by way of damages for the benefit of a dependant.

(3) The payments to be made under a periodical payments order shall be assessed according to the financial loss likely to be sustained by such dependant as a result of the death of the deceased during the period for which the order is made and different sums may he ordered to be paid in respect of different intervals during the period of the order.

(4) The Defendant and any dependant entitled to payments under a periodical payments order may at any time apply to the court for a variation of the order as to the amount of any future payments to he made thereunder or as to the intervals at which or the period during which such payments shall be made. No such application shall be made except on the ground that there has been a material change of circumstance which has resulted in the payments ordered to be made ceasing to be a fair assessment of the financial loss likely to he sustained by such dependant after the date of the application.

(5) Upon any application under the last preceding subsection the court, if satisfied that there has been such a material change of circumstance, may make such variation in the order as it thinks just.

(6) Where the court makes a periodical payments order in favour of a dependant who is a widow at the date of the order, the likelihood that she will re-marry during the period of the order shall not be taken into account in assessing the amount of any payments ordered to be made to her thereunder but her re-marriage after the date of the order may be relied upon as a material change of circumstance for the purposes of any application under subsection (4) of this section.

(7) Where the court gives judgment for a lump sum by way of damages for the benefit of a dependant who is a widow at the date of the judgment, the likelihood that she will re-marry thereafter shall not be taken into account in assessing such damages unless the full particular delivered pursuant to the provisions of section 4 of the Fatal Accidents Act 1846 contains an express statement that no application is made on her behalf for a periodic al payments order and that if the court thinks lit to give judgment for a lump sum by way of damages for her benefit she is willing that the likelihood of her re-marrying after the date of the judgment should be taken into account in assessing such damages."

The noble and learned Lord said: When I intervened in the debate on Second Reading of this Bill I was ingenuous enough to think it was concerned with lawyers' law—in particular Clause 4 of it, which was dealing directly with what a judge has to do. It occurred to me that 15 years of practical experience in adjudicating in this kind of action made it proper that I should draw the attention of the House to difficulties and indeed injustices which may result from accepting Clause 4 of the Bill in the form in which it came from another place. The task of assessing damages in a lump sum for dependants, which is not of course limited to widows, under the Fatal Accidents Act, is one which is always fraught with anxiety to the judge. It is so difficult to be right; and to be wrong is bound to cause injustice.

It seemed to me that the defect of Clause 4 was that it focused exclusively upon one facet of a much wider problem, although my own experience leads me to believe that quantitatively prospects of a widow's remarriage play a significant part in a very small minority of cases, and that it has been greatly overestimated by some of the supporters of the Bill. The fact that it does not play quantitatively a large part in assessing damages in this type of litigation does not mean that I do not sympathise with the deep emotions which are stirred in those few cases in which it does arise, both by the prospect of questions being publicly addressed to the widow as to her intentions of remarriage, and as to what I am told, though I have never experienced, are the snooping inquiries which in some cases go on before the case is tried. Nor do I underestimate the emotion which has been stirred by such metaphors as "the cattle market" and "the slave market" which, though I think unjustifiably, have acquired a currency; and legislation must, I accept, take account of public opinion, even if public opinion may not be based on rational, as distinct from purely emotional, grounds.

I, too, would spare the widow the indignity of having to answer such questions in open court; and I like to think that in the many scores of cases which I tried I succeeded in doing so. I, too, would wish to relieve the judge of the anxious task, where it arises, of making an estimate of the widow's prospects of remarriage. But I should wish to do so in the context of a wider reform, designed to reduce the risks of injustice for widows and for equally deserving dependants in a field which, quantitatively and qualitatively, in terms of human suffering is liable to result from the present system—injustice much greater than that involved in any question of the prospects of remarriage.

My objection to Clause 4 as it stands in the Bill as it came from another place is not that it ignores these other and larger problems. Reform, provided always that it is consistent in principle, may have to be piecemeal owing to the exigencies of Parliamentary procedure. I do not object to it on those grounds, but Clause 4, it seems to me, is subject to four objections: first, it is irreconcilable with the principle of the Fatal Accidents Act; secondly, it creates injustice as between young re-married widows and those in middle years with children whose needs are so much greater; thirdly, it makes more difficult the prospect of future rational life; fourthly,—and I put this last—it gives to the judge a task which is repellent to all his instincts for doing even justice between parties to litigation before him.

In the course of the speeches on Second Reading, it appeared to me that some of the Members of this House were not entirely familiar with the nature of the damages which are awarded under the Fatal Accidents Act. In England, there is no element in the damages of compensation for the grief of the dependant at the bereavement. For my part, I should find the task of estimating death in pounds and pence impossible and distasteful. If it had to be done, then there would be no reason for limiting it to those who were financially dependent upon the deceased, who are the only ones who can recover damages under the Fatal Accidents Act. The loss of an only child to parents must cause grief as great as any which one can imagine. No, damages under the Fatal Accidents Act depend upon a cold financial calculation of the loss of material benefits in cash or kind by those children, parents, widows, or other near relatives for whom the deceased provided, or would he likely to do so in the future had he lived.

It may perhaps help to explain the difficulties which I feel about Clause 4 as it stood before and why I am proposing the substitute clause which stands in my name, if I venture for a few minutes to try to explain the mental processes through which a judge has to go in making the estimate of damages under the Act. It involves three stages. First, he has to make an estimate of the financial benefits the deceased would have provided for the dependants who are seeking compensation if he had not been killed by the tortious act of the defendant.

The starting point, naturally, is an estimate of the financial benefits which those dependants were deriving from him during the period shortly before his death. Then one has to consider his expectation of working life; that is, the period during which he would have continued to provide material benefits for his wife, maybe his aged parents, or his children, or maybe a dependant sister. And one has to consider the prospects of promotion that he had, the likelihood that as he went up successively on the ladder of his employment he would be able to provide greater material benefits than at the time at which he died.

Next one has to consider on the other side of the coin the expectation of life of the parent, for example, who is claiming, or of the widow, if that is likely to be less than that of the expectation of the working life of the deceased. One has to consider in relation to children how long they would be likely to have been dependent and at what age they would have gone out into the world to earn a living for themselves. So far as the estimate is based on what was likely to have happened to the husband, it can never be shown to be wrong. All that one can attempt is to do one's best to make a fair estimate of what would be likely to have happened if he had not been killed and the Court of Appeal can correct and get a general balance in the decisions of individual judges on that matter. But in so far as that estimate depends upon a guess as to how long the parent will live or the widow will live, or how long the child would have been dependent, facts may show in the future that that was wrong. If they do, under the present system there is no way of correcting that error.

The next stage in the calculation is to take account on the debit side of those sources of material benefits which are available to the dependant as a result of the death of the deceased which would not have been available apart from that. The first example is legacies from the estate of the deceased or, if one comes to the c inclusion that those legacies would ultimately have been left had he lived longer, then an allowance for the accelerated receipt of them. As I said, this is a cold, financial calculation.

Again, one takes into account remarriage, or a strong likelihood of it. I emphasise the words a strong likelihood of it "because, as I said on the Second Reading of this Bill, it is only in a small minority of cases that this is a significant factor. Likewise, one would take into account the ability of a widow, in particular, to re-engage in salaried employment which she might have had before the marriage and which she left in order to carry on the duties, and the pleasures, of running the household. Those estimates, however reasonable they may appear at the time they are made, may be falsified by events, and if they are, there is no way under our present system of correcting the injustice that results from it.

Finally, the last stage in the calculation is to estimate the amount of a capital sum which would produce, over the years which one has estimated that the benefits would have been received, an annuity of the sum of the financial value of the material benefits in cash or kind which would have been obtained. The normal way of doing that in the ordinary case, where very large sums are not involved, is by applying a number of years' purchase to the median benefit which one has estimated. In picking on the number of years' purchase to grant one normally takes into account those various probabilities, and chances to which I have been referring.

There has, however, come into operation within the last year or so an important new factor which is liable to falsify that last stage in the calculation, and that is inflation. There is a very grave danger, if inflation goes on increasing, that a lump sum which is awarded this year, and which is fairly sufficient to provide the widow, the parent or the child with the material benefits lost over the coming years by the death of the deceased, will in the event because of the fall in the value of money, prove to be wholly inadequate to do so.

Clause 4 as it stands at present cuts right across this principle. The widow of 20 with no children, already remarried at the date of the assessment of the damages, or engaged to be remarried, will get a sum which bears no relation whatever to her actual material loss; and, what is worse, although her actual loss is likely to be not one-twentieth of that of a widow in her forties with children, the amount she will get will be at least twice—perhaps three times—as much as the widow in her forties whose needs are so much greater. To deal, as Clause 4 does, with the prospects of remarriage does not tackle the real weakness of the present system, which is the fallibility of judges as prophets. Dependent parents may live much longer than the average expectation of life on which the judge has ruled. Children may go on with further education when at the time the estimate was made the probability was that they would leave school at 15 or at 16 and cease to be dependent on their parents. A woman who was earning good money at the date of the death of the deceased, a factor which would limit or reduce the material benefits which she was getting from her husband, may become ill, suffer an accident, cease to be able to earn it; and all the judge's calculations are falsified by the event and nothing can put it right. Injustice, too—I do not hesitate to mention this—may also be done to the defendant. The dependent parent may die the year after the assessment in his or her favour has been made. It may be odd of me, but as a judge I like to see justice done to both sides, even if one of them is a defendant and even if that defendant is represented by an insurance company.

I wish to turn now to the terms of the new clause which I am proposing. I was told that I should at the outset of my speech have suggested that it might be for the convenience of the Committee if we were to discuss at the same time the new clause, the Amendment standing in the name of my noble and learned friend Lord Pearson, and the Amendment in my name—to leave out Clause 4 because they deal with the same topic—and, indeed, it would be difficult to discuss them separately. I turn therefore, with that suggestion, which I hope will commend itself to the House, to the new clause which sets out the principles of rational reform which I would commend to this House. I personally should have preferred the whole question of damages under the Fatal Accidents Acts to have been referred to the Law Commission for an urgent report, and for them at the same time to consider a closely related subject under another Statute: that is, damages for loss of expectation of life, for that would have enabled at any rate a more detailed and a more tidy enactment to be made. I have not sufficient experience to have antennae sensitive to the mood of the House, but I had a suspicion at the time of the debate of the Second Reading that it would not be wholly in accord with what I sensed to be the mood of the House if it were adjourned even for that length of time, which I hoped would be short, for a careful consideration and discussion of an amendment of the law on the lines set out in this new proposed clause. I therefore will in due course beg to move it.

If it is accepted, it will, I recognise, require tidying up Amendments which can be made at the Report stage, for what it seeks to do is to set out the principle in terms which I hope will be understandable by laymen as well as by lawyers. For instance, the position in Scotland, of which I have not sufficient personal detailed knowledge and which differs slightly from that in England, would require to be considered and dealt with. The question of joint liability in cases where another party is under a liability to contribute to the damages would also need to be dealt with. And it may be, indeed I think it is, that rights against insurers should be specifically provided for. But I believe that, subject to that minor tidying up, the courts could make this new clause work in the form in which it stands. I may perhaps add that it is certainly not shorter than the original Fatal Accidents Act of 1846. Draftsmen were more laconic in those days.

The key to the new clause is to be found in subsection (1), in the provision empowering the court to make orders for periodical payments in place of lump sums for damages. It is not a provision which would have been practicable in 1846, when the original Act was passed, because of the risk that individual defendants might be financially unable to keep up the payments over the period, which might be lengthy, during which they would be paid. 13ut to-day all but a negligible number of claims under the Fatal Accidents Act are covered by insurance, either by motor vehicle insurance or by employers' liability insurance. I am anticipating the passing by your Lordships' House of the Motor Vehicles (Passenger Insurance) Bill, which comes before the House, I think, next week, and which will make the insurance of the passenger in the vehicle compulsory. The fatal accidents field is the best one in which to start a reform of this kind; it may be desirable for all cases of personal injuries, but in the fatal accidents field there is riot that objection, which I find a very formidable one where the plaintiff is still alive, of the danger of creating the permanent invalid syndrome because he knows that if he gets better, if the condition improves, the payments will be reduced. This is not malingering; it is one of the psychological effects of litigation, and this social damage to the man himself is one which one should bear in mind; but that does not exist in fatal accident cases. This system of periodical payments in cases of this kind is not entirely new in the English system. It is common in many of the civil law systems, and its practicability in this country is, I venture to say, proved by the fact that for over fifty years the insurance companies have lived with and made work a system of periodical payments under workmen's compensation.

Subsection (2) leaves it open to have a lump sum payment instead of a periodical payments order. Indeed in nearly all cases there will be a lump sum payment for special damages which have been incurred before the date of the trial, in addition to the damages for the future. But as regards the future, there may be cases when both parties would prefer a lump sum payment to a periodical payments order. I suspect that insurance companies will in most cases do so, and dependants may if, for example, they want a capital sum to buy a house or start a business or some thing of that kind, although my own view is that in the majority of cases it would be in their own interest to have a periodical payments order. But the option is left open to each side.

Subsections (3) to (5) may be considered together because they deal with variation of the order. They are designed to enable the court to do justice in the light of the actual facts as they have happened and not merely upon a prophecy, which may be false, of how they are likely to happen. What I have in mind is not only remarriage, which would be a reason for applying for a variation of the order, but all those matters of uncertainty—life, expectation of life, injury, going on with higher education when it was not foreseen, and particularly inflation, to which I have referred. Insurers are in a much better position to hedge against inflation than are small investors, such as the dependants receiving compensation under the Fatal Accidents Act.

I turn finally to subsections (6) and (7), which were added (and I apologise for this) later than the first subsections in order to make explicit the position as regard!, re-marriage, which I think would have been implicit in the way that the courts would have worked out the operation of the first four subsections. Subsection (6) deals with the case where a periodical payment order is made. The prospects of remarriage there are irrelevant. No question as to prospects of remarriage; no inquiries as to prospects of remarriage can be admitted or can affect the order; only the actual fact of remarriage may be a material change of circumstance entitling a party to ask for a variation of the order.

May I say at once that this has the advantage that, if the widow marries a man of lesser income, or lesser financial standing than the husband who had died, then the fact that the material benefits that she will get from her new marriage are less, than she would have had had her previous husband continued to live can be taken into account in an amendment to the annual payment being made. I should expect, in practice, that insurers would ask for periodical payment orders where there was a strong likelihood that the widow would remarry. Wherever this is being granted, as I said, prospects of remarriage are irrelevant; no questions on it in the proceedings, no inquiries about it before the proceedings can take place.

Subsection (7) deals with a lump sum payment. In the case where the claim is made for a lump sum payment instead of a periodical payments order, the remarriage prospects of the widow cannot be taken into consideration unless two conditions are fulfilled. The first—and it may be the most important for those who supported Clause (4) in its original form—is that the remarriage prospects cannot be taken into consideration unless the widow expressly consents. Secondly, she must disclaim any intention to apply for a periodical payments order instead; that is to say, she must choose. She must say: "I want to have a lump sum payment order, and I agree, in assessing it, to have my marriage prospects taken into account."

I should not expect this clause to be used at all in the case of the typical widow—at any rate, what I found to be the typical widow in the many cases that I tried, and that I have seen later in Appelate courts—in her late thirties or older. In that case I should expect the insurance company to apply for a lump sum payment since, in those cases, the prospect of remarriage plays an insignificant part, if any (indeed none, so far as I was concerned) in the assessment of the lump sum. Although I personally would advise the typical widow to ask for a periodical payment order rather than a lump sum, if she did want one I have little doubt that the insurers would consent to that form of order rather than a periodical payments order and, if that were done, then the prospects of her remarriage would be, in law irrelevant, as in fact they already are. If your Lordships approve of my suggestion that the three Amendments should be discussed together before a vote on them is taken, I shall in due course beg to move that this Amendment be accepted.

7.37 p.m.

LORD PEARSON

My noble and learned friend Lord Diplock has proposed that the three Amendments should be taken together, and if that course commends itself to the Committee, it is perhaps convenient that I should say a few words about the Amendment which stands in my name and is intended as a shorter and simpler alternative, in a way, to the one which has already been proposed. Your Lordships will see that the Amendment proposed to Clause 4 is intended as a short and simple Amendment with three objects in view: two being positive objects, and one really a negative object. The first positive object is to eliminate the present Clause 4 of the Bill, which I regard as undesirable. I regard it as undesirable because it introduces a statutory fiction, and substitutes fiction for fact, in the judicial estimate of the amount of damage which the widow has sustained. I say that for this reason. As has been explained, under these Acts you estimate merely the financial loss which the widow, and possibly other dependants, have suffered by reason of the deceased husband's death. In other words, that which has to be assessed is the net loss of the husband's financial support to the widow.

In assessing the net loss from being deprived of that financial support, it seems to me elementary that a highly important factor is the period for which that loss will endure. In the ordinary way, if there is no remarriage, it may endure for a very long period—twenty, thirty, forty years or whatever it may be—but, under the provision in the Bill, even if an actual remarriage has occurred by the time when the assessment has to be made (and suppose that is a year and a half, or two years after the accident) in such a case it is obvious that the actual loss is comparatively small because the period during which the husband, or a huband's financial support has been lost, is only eighteen months, or two years, instead of thirty or forty years. Why should that fact be left out of account? Why should the unfortunate judge, who is trying to assess damages and wishing to assess them on a realistic basis to find what is the loss really suffered, have to disregard the facts and make his assessment on the fictitious basis that the widow has not remarried and is not going to do so?

That is why I object to the present provision in the Bill. It is fiction. It is not fact, and it is not fair or reasonable to require the judicial estimate to be made on the basis of falsehood instead of on the basis of reality. If the widow has in fact remarried by the time the assessment is being made, surely it is right to look at the facts and see how much damage she has really suffered. Otherwise, when the actual damage suffered may be, say, £1,500, it will be necessary, under the provision in the Bill, to assess some very much larger sum—£9,000, £10,000, £12,000, or whatever it may be. That is not reasonable or fair; and in any case it is not justice. So I submit that that is wrong.

The second positive object of the Amendment is to put right what I think is one of the evils complained of, and the one which seems to me quite clear. The widow is entitled to fair treatment and it is not fair that a widow in the witness box should be asked, and compelled to answer, questions as to her intentions or expectations of remarriage. One can see at once that such questions may well be highly embarrassing and they ought to be barred. The Amendment which I am proposing would deal with that position. It would provide that in the sphere of procedure, the sphere of evidence, such questions shall not be asked and the defendant shall not adduce any evidence—if he can find any—with regard to the prospect of remarriage, unless the widow herself chooses to give evidence on it, which is I suppose highly unlikely.

The object of this Amendment is to avoid the possibility—I am not sure that it is much more than a bare responsibility—that such questions might be put to the widow in the witness box. It is a long time since I was trying cases in first instance, and I am not entirely au fait with what happens nowadays, but I do not think that when I was trying cases such questions were put to the witness. But, at any rate, if there is any possibility that they might be put, then that possibility ought to be barred and no such questions should be put.

The third object of this Amendment is to provide a short and simple remedy for the evil complained of, without introducing any elaborate or far-reaching alterations of the law which may be highly desirable—and I am not speaking against the proposals. It may be that the Committee will prefer to deal simply with this subject which arises to be dealt with, and to deal with it in the simple way suggested in the Amendment that I have ventured to put forward. From those points of view, I venture to commend this Amendment to the Committee.

7.44 p.m.

BARONESS SUMMERSKILL

I am sure that the Committee were charmed when the noble and learned Lord, Lord Diplock, confessed that his antennae were not tuned to the atmosphere of this House during the Second Reading. We fully realise that, and I, for one, realise that I put a point of view—which I am going to repeat to-day—which is totally opposed to the judicial approach. In the first place, I should have said that I agree wholeheartedly with the noble and learned Lord, Lord Diplock, in that compensation should be given as periodical payments rather than as a lump sum, because this method will afford a widow greater security.

I find it very difficult to visualise what the noble and learned Lord called a "typical widow". All women here looked at themselves and wondered whether we are typical women. If we are not typical women, then what is a typical widow? However, if he means that a woman of about 35 is a typical widow, I fully accept that. But let us think of this typical widow who has been married for some years with children living in a little suburban house, who has received her housekeeping money regularly; who perhaps has been responsible for paying the rent, the groceries, and so on, and who has geared her life to a period cal sum. Suddenly, a terrible thing happens and she is stricken. Her husband, who has earned the wages—and I emphasise that he has earned the wages, because I am going to point out soon that the woman serves equally in the home—is killed overnight. Time passes, and she is involved in legal proceedings. It is decided that this woman, who has been accustomed to periodical payments in her life and understands how to handle them, is to have a large lump sum.

I am sure that all of your Lordships read your papers regularly, and in various cases counsel for the defendant has been known to say that any woman with a substantial sum is bound to marry. Only to-day, I read that yesterday a judge warned a woman who had been awarded about £8,000 to beware of the "smooth-tongued predatory gentleman". That is the last thing I should call a man, but not all men are perfect and there are some men who do not merely assess a woman's size and shape or her loving mind, but give some thought to how much money she possesses. But, suddenly, this typical widow is given a large sum of money, and that encourages many women to rush into another marriage because of loneliness, fear of the future and sexual deprivation. A woman needs only a little flattery—because a woman wants to he cared for, wants to be loved; and the woman we are talking about has been without the man who has cared for her and loved her for some time. So that she is vulnerable to the approach of what the judge called the "predatory gentleman". Therefore I feel that she may enter into a marriage which she will bitterly regret when her money has disappeared into the pockets of a spendthrift idler.

Some argue that by failing to take a lump sum she runs the risk of losing all, through the subsequent insolvency of the defendant; and the noble and learned Lord, Lord Diplock, has put that point of view very well. I believe that the noble Lord, Lord Stow Hill, feels rather strongly that periodical payments are wrong, because the defendant may become insolvent. May I repeat what the noble and learned Lord, Lord Diplock, said on Second Reading? He said: In the case of fatal accidents, where more than 99 per cent. of the cases arise out of traffic acidents, 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 insured, the original difficulties about making awards in the form of periodical payments … disappear."—[OFFICAIL REPORT, 20 /4 / 71, col. 543.] I think it is very important that noble Lords should recognise the case for periodical payments.

Having said that about part of the Amendment, I must register my total opposition to the proposal that a widow's compensation shall be varied if there is a material change of circumstances, which includes remarriage. I have to confess that it is a matter of great disappointment to me that three eminent Law Lords have failed to adjust themselves to the 20th century concept of a woman's role—or, in this respect, I might say the 20th century concept of the housewife's role. I dealt with this point on Second Reading, when I asked that a wife should be treated financially as a working partner rather than as a kept woman. The noble and learned Lord, Lord Diplock—and I listened to every word very carefully—appeared to regard the housewife as an appendage to a man who is prepared to subsidise her; and when that man dies and another man comes along with a subsidy, then the value placed on her working years, valued in terms of compensation placed on her working years with the first husband, must be reassessed, and the defendant may apply to the court for a variation of the order.

I was astonished when he turned to the House and, suggesting how generous they would be, said that if by chance the woman met a husband who was not as wealthy as the first they were not going to condemn her to this lower income; they were going to be extremely generous and allow her to keep an amount equivalent to compensation for the higher income. Does the noble Lord realise that noble Baronesses here were not impressed? That is not doing something generous: that is the least that can be done in the circumstances. It is not generous, of course, because the second income should not be taken into account at all. But he suggests that a widow, his typical widow, who has cooked, worked, brought up the children and looked after her husband in order that he might go out to work, is going to be treated generously because when the second husband comes she will be allowed to have an amount in terms of compensation still equivalent to the first.

It is surprising that the noble Lord and his noble friends who have put their names to this Amendment, with their knowledge and experience, cannot appreciate that the woman we are talking about has, as I have already said, worked for her family (and, by working for her family, she is working for the nation, because after all the workers are the true wealth of the nation) and, through this work, has earned the compensation which has been awarded. I say that this principle should be upheld whatever the age of the widow. The noble Lord said that he is fearful, or he implied that he was, of being thought over-generous to the young widow. He has already said that his typical widow is 35. That gives us the case. If his typical widow is 35, then the very young widows are in a tiny minority. I would ask noble Lords, in the case of the very young widows, to put mercy before logic.

The noble Lord talked about the large sums of compensation which are often given. We are all familiar with the compensation given in the form of "golden handshakes" to men who are not logically entitled to them. But law and custom cannot always be consistent. Does the noble Lord immediately write a letter to The Times and say, "This is outrageous! This man has been given a colossal sum of money. He has worked for only a certain period; he is not entitled to it in legal terms"? We should be grateful, perhaps, that legal terms are not responsible for directing our lives. We cannot always be consistent, and in this matter I would ask noble Lords to have mercy on this very small number of young widows. I would ask noble Lords not again to use the widow of a worker fatally injured in an accident as the peg on which to hang a legalistic, out-moded argument like the one we have already heard from the noble Lord, Lord Diplock.

From subsection (7) it will be seen that it is proposed that in certain cases a lump sum by way of damages can be given and, provided the widow agrees, the likelihood of her re-marrying after the date of the judgment should be taken into account in assessing such damages". This is a restatement of what has been described by the noble Lord, Lord Diplock, as "the cattle-market procedure". Here it is. There has been a great amount of discussion among noble Lords over the last few weeks. We saw the first Amendment down: a simple Amendment to delete that part of the Bill which dealt with this subject. Then, if I may say so, there was a great amount of public disquiet, and it was suggested that these noble Lords were not in touch with women; that they had little idea of what was going on—

SEVERAL NOBLE LORDS

Oh!

BARONESS SUMMERSKILL

The noble Lord understands what I mean. After all, when I am speaking of noble Lords I can only think along perhaps the severest lines. But they did not realise what the women's organisations were thinking. On this subject women's organisations have for years sent representations to successive Governments, time and time again. This is not something new to women. I have been to conference after conference at which women have got up and denounced this method of dealing with "the typical widow". I say that subsection (7) is a restatement. Subsection (7) provides that if the widow agrees to this, and only if she agrees to it, will this practice be followed. It makes little difference to a nervous widow involved in legal proceedings whether she is asked to agree to inspection or whether inspection is made without her being asked. Here she is, having come up from her little home, among lawyers, with a lawyer telling her that it will be in her best interests if she allows herself to be inspected and somebody to sum up what her chances are in the marriage market. Of course she will be compelled to agree with her lawyer, and there is no question in this of her being free to decide.

Again, if there are noble Lords here who feel that this is a new subject, I would ask them to read the Report of the Committee on Personal Injuries Litigation. This Report was made in 1968 by the Committee under the chairmanship of Lord Justice Winn. It reported in 1968; it was appointed in 1966. This Committee sat for three years deciding what your Lordships are being asked to decide in this little debate, and perhaps one on Friday.

VISCOUNT DILHORNE

Does the noble Baroness say that the consideration of this question was within their terms of reference? I thought it was not; and I think the noble Baroness is wrong in saying that they spent three years considering this problem.

BARONESS SUMMERSKILL

My answer to that is: let me tell the noble and learned Viscount what Lord Justice Winn said.

VISCOUNT DILHORNE

I am aware of it.

BARONESS SUMMER SKILL

He said this, on the award of damages to a widow: We have had passed on to us from your Lordships' Office correspondence demonstrating that the representative bodies concerned with the welfare of women are gravely dissatisfied with the present practice 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 possibility, 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". That was the Report of the Committee which considered this matter for some years. That was what Lord Justice Winn said. Therefore I ask the House to recognise that this subject has been threshed out for many years.

It has been said that men make the laws and women the manners. Perhaps only women can appreciate the indignity suffered by a widow who is compelled to submit to inspection by a strange man with a view to assessing her physical desirability. I would say this to noble Lords—I know them well enough to feel that they will take it in good part: a man's legal qualifications do not lessen her discomfort; for in this matter a judge and a manual labourer may have similar tastes. They may like women dark or fair, tall or short, buxom or slim. In the twenty minutes or so in which the judge looks at the woman he has to sum up whether she is likely to be desirable in the eyes of some other man. And during all this time the mind of the widow remains a closed book. She stands there mute, being assessed physically. Here in this new Amendment precisely the same practice is going to be pursued—provided, that is, that the widow does not rise up. I suppose, to make an impassioned speech against it. This woman knows that the male test of her desirability is concern, if I may quote the Home Secretary, with the "mechanics of sex" and not a loving disposition.

Finally, I say that it is lamentable that noble Lords by this Amendment should seek to perpetuate in our courts this crude assessment of the value of a woman, oblivious to the mental stress to which she is subjected. Again I should like to emphasise that the widow should be regarded as having been the working partner of her late husband for whom she has worked in the home, reared the children and has thus enabled him to earn his wage or salary and to improve his skills. As I said on Second Reading, that was just one phase of her life, a phase which has had a tragic ending. Her financial compensation should bear no relationship to the next phase, whether she marries or remains single.

8.4 p.m.

LORD DENNING

My Lords, may I join with the noble Baroness in thinking that the law as it stands at present should be amended. As I have dealt with many of these cases at first instance and in the Court of Appeal, may I say that in the great majority of cases the prospects of remarriage are not taken into account in the least. The widow is not asked as to her prospects of marriage or the like, and the judge when he comes to assess them assesses them on so many years' purchase. which he feels is right, or the loss of money benefit which she has sustained. Likewise in the Court of Appeal, that is how the great majority of cases are decided. It is in this small minority—which equally I would deplore—that the widow is asked whether she has been going about with such-and-such a man or living with such-and-such a man and whether she is likely to remarry. Then, if the judge is satisfied that there is a strong likelihood of remarriage, he may reduce the amount on that account.

I would join forces with those who propose the Amendment in saying that that is most undesirable because of the evils to which it has given rise in the administration of justice. Before the trial the insurance companies may send their agents, or "snoopers" if you so like to call them, to see how the widow is living. At the trial the widow, I am afraid, will keep it all back from the judge; it may not have been inquired into. She will tell lies as to what her relationship was with such-and-such a man. That all may get through. Cases we have had in the Court of Appeal have arisen when the talebearers after the trial send word to the insurance company and say that she has deceived the court. I remember one case where it was said. "She has gone over to North Wales with her children and the man with whom she was living. She did not tell the court that". Only a few days ago there was an instance of a lady who had been living with another man and had a child by him. She had told the court that she had not done anything. The court did not know it then. She said she lived an innocent life with no thought of remarriage. The case was settled, because the damages were reduced by agreement.

But it is those evils before the hearing, at the hearing and after the hearing which seem to me so undesirable. For that reason I would suggest that an amendment should be made in order that they may be got rid of. My noble and learned friend Lord Pearson makes a very good suggestion that the matter should not be gone into by either side but should be controlled by the judge. I think he might do so without having such questions asked, unless the woman has invited them. Therefore to that extent I would support the proposed Amendment. But I must say that the Bill will give rise to a great deal of difficulty as it stands. The court is not to take account of her actual remarriage or prospects of remarriage. Then what is the court to do? We are to imagine then, that she is not married and is not going to get married. If we have to do that by a fiction, we must imagine that she goes out to work. Take the case of the widowed secretary who has been remarried. If we are to imagine that she is not remarried, then we must imagine that she must go out to work to earn more money. Unless this Amendment is carefully considered the judges will have great difficulty in the future in knowing what is to happen if they are to ignore remarriage or the prospects of remarriage.

But, from that, may I say a word as to the Amendment proposed by my noble and learned friend Lord Diplock. For many years I have thought that it would be useful to reform our law in such a way that instead of judges being obliged to give lump sums they could give periodical payments. I have often thought that in the cases of paraplegics, paralysed from the waist down arid quadaplegics paralysed from the neck down. They may be given £20,000 or £30,000 damages. Also in the case of the unconscious, who may remain unconscious all their lives. Sometimes they die within a year or so of the award, then the money goes perhaps to those who do not need it or deserve it. I have often thought in those cases how much better it would be for periodical payments to be made. The insurance companies, I believe, object, and I can understand it; they want to get rid of their liability, compounded once and for all. As to widows, would it not often be better, from the practical point of view, that they should have periodical payments, coming in regularly, as one has from the National Insurance for accidents and the like. Let them be substantial payments, made quickly after the award. As my noble and learned friend Lord Diplock says, let them cope with inflation.

I would add—it may be possible—let there be an immediate lump sum, if you like, and a departure from the absolute rule of pecuniary loss. Let there be compensation for the plight in which they have been put. Let £5,000 be paid in every case, followed by periodical payments to meet the needs. But in principle it is well worth the consideration of this Committee to allow something on the lines of the Amendment which the noble and learned Lord, Lord Diplock, has suggested would be a very valuable improvement in the law, always as an alternative and not compulsory. Subject to that, I am not quite sure which way I should vote on these Amendments.

8.10 p.m.

LORD STOW HILL

If I may at the outset try to get the record straight, I think my noble friend Lady Summerskill by accident attributed to me a passage from A. speech made by Lord Diplock. She certainly used my name.

VISCOUNT DILHORNE

But not in that connection, if I remember rightly.

LORD STOW HILL

Then I apologise. I would simply say one thing more about my noble friend's speech. I, of course, agree with a great deal of it, especially that part which was covered by the vivid and graphic description which graced the latter portion of it. What I disagree with is in her preference for periodic payments, and I would only say that I have a much higher opinion of the wisdom and common-sense of the opposite sex from myself than she has. I feel honoured and privileged in the acqaintanceship with ladies that I have enjoyed in my long life, and I confess that in this year of 1971, so far as my experience goes, they are every bit as intelligent and able to control themselves, to look after themselves and to shape their lives as their male counterparts. And the idea that a lady with £2,000, £3,000 or £4,000 at her disposal is likely to fall an easy prey to what the noble Baroness described as a "predatory male"—whatever he may look like—seems to me as difficult to accept as that her male counterpart in possession of a similar sum in this year of grace 1971 is likely to fall a prey to a predatory female.

May I leave her speech with those comments, and go to the speeches of the three noble and learned Lords, to whom I would wish to express my personal gratitude for the obvious careful thought that they have given to the problem that confronts the Committee and for the labour and pains they have expended on trying to devise an answer to the difficulties which we have discussed, and which were so exhaustively discussed in another place. The first noble and learned Lord who spoke was Lord Diplock. May I address myself first to him. I hope that when the noble and learned Lord, Lord Denning, was describing what takes place in what I quite agree with him are a minority of cases, he was as profoundly repelled by the noble and learned Lord's description, as I believe anybody here would be on hearing it.

If I may say so to the noble and learned Lord, Lord Diplock, I do not believe that in his formulation of the problem and in his thinking out of the answer, he really gave adequate weight to the sense of detestation that the vast majority of people in this country feel at the idea that an unfortunate widow, whose husband has been killed, perhaps some years before or probably quite recently before the occasion arises when she has to go into the witness box, should be asked the sort of questions which the noble and learned Lord, Lord Denning, described from his very long and rich experience in these matters. I can only say, that the procedure as he described it, seemed to me quite detestable. I know that many judges find it so because learned judges have over and over again said in their judgments, and quite apart from their judgments, how much they dislike having to preside over inquiries of this sort and how anxious they are to be relieved of this difficult task.

I know, too, how out of their sense of delicacy, which we should all applaud, they do the best they can while trying to do their duty, disagreeable as it may be, to see that the proceedings are conducted with a reasonable sense of the "suffering"—I use the word advisedly—of the widow in the witness box. In consequence they very often ask, if they ask any questions at all, only a minimum of those questions which they think to be utterly indispensable. But cases do arise where insurance companies—and I do not refer to them in any critical sense—again in the discharge of their duty put inquiry agents to shadow the unfortunate widow.

These matters of one's intentions towards the opposite sex, one's desires and plans as to how to lead one's life in the future are intensely personal. Unless it is absolutely essential, in a civilised country people should not have to be subjected to the ordeal of being cross-examined as to their views and intentions in an extremely private terrain of personal feelings and reactions of that sort. And that is exactly what is done now, as the noble and learned Lord, from the wealth of his experience, described it.

The noble and learned Lord, Lord Diplock, agreed that it was a very undesirable practice. I simply say this: he is most anxious, as all learned judges are—and I yield to none in my very deep and fervent respect for the Bench in this country—to do justice as between widow and widow. I would only say to him that if so few questions are asked, as the law stands—the law which we who have promoted this Bill are most anxious to alter—injustice is constantly done between one widow and another and between one defendant and another, when the matter is treated with that delicacy, which we all so highly applaud.

Take two widows. Let us assume that they are of the same age and approximately of the same attraction, each married to a late husband of about the same age and with approximately the same income and with similar prospects. They are similar in all respects when they appear in the witness box, and if a learned judge, acting from motives, as I say, of courtesy and humanity, deducts what he thinks is necessary, on a very ad hocbasis—in" I may so describe it—in each case he would probably deduct the same. Those two widows may be utterly different in temperament and in their reactions to the tragedy through which they have passed. One may be a lady who is perhaps of a buoyant and optimistic temperament. She may think—and quite rightly think—that her late husband would have wished her to pick up the bits and try to make a new life and, if in due course a suitable person came along, to remarry. That might have been the case for one of the two widows.

The other widow—and I do not criticise one as against the other at all—may be of a wholly different temperament. She may be devoted to the memory of her late husband and the idea of her ever, in the whole of her natural life, taking anyone to replace him, may be to her utter anathema. She may feel deeply and sincerely that the very idea of entering into another matrimonial relationship would be something which she genuinely could never contemplate.

If the matter is dealt with as it is in the courts to-day, those two widows are dealt with on precisely the same basis. One gets much too much and the other too little, and one defendant pays too much and the other defendant pays too little. One advantage, at any rate, if may put it to the noble and learned Lord, Lord Diplock, is that I respectfully submit that the change in the law which I propose would put an end to that fundamental injustice. That, I should have thought would be something of considerable value.

The noble and learned Lord, Lord Pearson, proposed a different remedy. His particular concern was the question of remarriage. May I say a word on that? In the other place the possible alternatives were exhaustively discussed. It was accepted that perhaps there was some illogicality, if you excluded from consideration prospects, also of excluding actual remarriage. That particularly concerned the noble and learned Lord. I do not want to take time over it, but I wish to put this to the Committee. It is much more logical than taking it into account, because what the Act of 1846 required—this has been said by learned judge after learned judge and I could cite a wealth of authorities—was that you take into account, by way of loss. the loss of the support which the husband would have provided for the wife in pounds, shillings and pence had he lived and you deduct from that only direct financial advantages which accrue to the widow as the result of the death.

Applying that principle, you do not take into account, for example, when the relatives provide for her or any other benefit in a broad financial sense which may be available. Suppose a workman is killed and his mates rally round to provide money to help the widow. That is not taken into account because it is not caused by the death. Nor is remarriage caused by the death. The noble and learned Lord, Lord Denning, in a judgment which I have had the pleasure of reading, pointed out, in a case in which a widow had worked, that her earnings should not be taken into account because they were due to her own volition, her own choice, and not the result of the death. So it is not logical at all not to take remarriage into account.

May I address myself to the Amendments particularly, because I submit that the Amendments both of the noble and learned Lord, Lord Diplock, and also the noble and learned Lord, Lord Pearson, really will not stand up. What is proposed by the Amendment of the noble and learned Lord, Lord Diplock? There are to be periodic payments either in substitution for or in addition to a lump sum. The Amendment goes on to pose that there can be application made to vary the amount of the periodical payment. It reads: No such application shall be made except on the ground that there has been a material change of circumstance which has resulted in the payments ordered to be made ceasing to be a fair assessment of the financial loss likely to be sustained by such dependant after the date of the application. It goes on: Upon any application under the last preceding subsection the court, if satisfied that there has, been such a material change of circumstance, may make such variation in the order as it thinks just. In my submission the plain effect of that wording is this. As from the date of the death of the husband, and the hearing of the case in which she claims damages in respect of that death, the widow is in leading strings for the rest of her life. The person who holds the strings is the private insurance company. I do not decry insurance companies or criticise them in the least. They must do their duty. In past years it has been my privilege and good fortune to work closely with the claims departments of most of our great insurance companies and I know those departments to be staffed by humane and decent people who I am sure dislike their task just as much as do the judges. I do not criticise them, it would not lie in my mouth to do so, even if I desired to do so, which I do not.

The Amendment would have the effect that when the unfortunate widow goes out of court with her periodic payment she will be watched—because insurance companies will develop a system; they are bound to—for years and years to see whether there is any evidence that a "material change" has taken place. Suppose she lived in a small house and moved to a penthouse flat in Park Lane. That would put the sleuths on inquiry at once; they would be very negligent if they did not notice it. But that might be because she had remarried; it might happen because she had been fortunate enough to engage the interest of a wealthy admirer; it might be because she had won a sweepstake. There might be a million different reasons. But the sleuths are going to be after her; they are going to watch her and report to their principals. They will say, "Here is this lady whose standard of living has risen right up to the sky". If they found that a wealthy admirer had removed her from a cottage to Park Lane, she would be dragged back to court, and exactly the same questions would be put to her as were described by the noble and learned Lord, Lord Denning. She would have her periodic payments reduced. Can anything more repulsive be imagined?

I submit to the noble and learned Lord, Lord Diplock, that he has failed to take into account the intensity of feeling about this; and he has also failed to take into account this consideration: that if there is one thing in this great country of ours, this free democratic society, that we value as much as if not more than anything else, it is our personal liberty to move about on our lawful occasions and to do what we want without being "snooped" on. Any proposal which would have the result of an insurance company paying more or less as the result of persistent "snooping" on an unfortunate widow whose husband has been killed would, I should have thought, be utterly detestable, and I very much hope that the Committee will not accept it.

I have another five minutes, and I want to refer to the Amendment in the name of the noble and learned Lord, Lord Pearson. He has taken a great deal of trouble about this but is it going to work any better? It starts off by saying that: the court may take into account in assessing the damages the fact of remarriage or the possibility of remarriage… That is an exordium which does not greatly commend this Amendment, certainly not to myself. Then the Amendment goes on: but the defendant shall not be allowed to adduce evidence or cross-examine the plaintiff or any of her witnesses as to the prospect of re-marriage unless the plaintiff has adduced evidence on that subject. What in the wide world is "adducing evidence" on that subject? Suppose she puts on an old dress; is that giving evidence? I notice that the noble and learned Lord shakes his head. But why not? The lady is usually resplendent in the most up-to-date and admirable garments; but she goes into the witness box dressed in a most uninteresting and drab costume which she has raked out from the back of her wardrobe, one which she wore some thirty years—well, say some five years—before, and which she then found excited far too little interest and had far too little appeal. But she brings it out and wears it.

Her hair is usually beautifully done; but, by accident or design, on the occasion when she goes into the witness box it is not so beautifully done. Unkindly, Nature may have intervened by giving her a terrible cold in the head and she may have to dab her nose with her handkerchief and her countenance may be a little bit puffed. She may have slept badly and be rather pale that morning. Her countenance may not be suffused with that roseate hue which usually strikes delight in the onlooker. If she goes into the witness box, is she giving evidence as to her prospects? Why not? The Amendment does not talk about oral evidence, and even if it did it would not cure the situation. It is evidence. You go into the witness box and you present yourself. The learned judge looks at you. Are you not giving evidence? If that is the case, is counsel to be able to ask her, "Your nose looks a little bit puffed and red this morning. Have you got a cold or have you done it on purpose?". It is an ingenious and painstaking endeavour, but it will not work.

I believe that the Committee is to resume discussion of another matter, not more important than this, and therefore I must draw my observations to a close. I deeply hope that the Committee will come to the conclusion that the remedies suggested by the noble and learned Lords whose contributions so enrich our discussions and have done so this evening, really do not meet the anxieties of those who have ventured to put this Bill before the Committee.

THE LORD CHANCELLOR

I wonder whether the Committee would bear with me? When I was consulted about this Bill I had hoped that this debate would confine itself to an hour and a half; but I have ascertained that there are at least three noble Lords who wish to speak, other than the noble Lord, Lord Davies of Leek, and in those circumstances I wonder whether, as we have reached 8.30 p.m., I might now move that the House do now resume.

Moved, That the House do now resume.—(The Lord Chancellor.)

On Question, Motion agreed to, and House resumed accordingly.