HL Deb 28 June 1984 vol 453 cc1089-94

7.12 p.m.

Lord Carmichael of Kelvingrove

My Lords, I beg to move that the Bill be now read a second time.

After such a momentous late afternoon and early evening, it may seem strange and be something of an anticlimax to have to deal with a Bill such as the one I have just moved. However, despite the fact that we have been dealing with great constitutional issues, we must realise that a large number of people will be very greatly affected by the Bill which I am in the process of moving.

First, may I welcome the new Lord Advocate for Scotland, the noble and learned Lord, Lord Cameron of Lochbroom, to the Front Bench for the first time. I hope, as all of us do, that his sojourn here will be helpful and enjoyable and that his guidance to the House, particularly on Scottish affairs, will bear the same relationship to Scottish law as that of the many distinguished Lord Advocates who have preceded him. I should also like to thank my honourable friend in another place, Mr. Alec Eadie, the Member for Midlothian. He asked me if I would introduce the Bill to this House on his behalf after he had secured its passage through another place. I am honoured to have been asked by him to do so. Mr. Eadie was high in the ballot and chose to take this Bill, which was one of the Bills prepared by the Scottish Law Commission on Industrial Injuries.

The title of the Bill may be somewhat forbidding to laymen like myself. Therefore, I am comforted when I look round the Chamber and see that no fewer than two previous Lord Advocates and the new Lord Advocate are present. Although the substance of the Bill is not technical, its wording and our understanding of the Bill call for a great deal of legal expertise.

In introducing his Bill my honourable friend spoke at great length and very movingly on the problems of pneumoconiosis, of which he had very close and personal experience as a mining agent in the Fife coalfield. Other Members who spoke in that debate paid tribute to the great work that is done by miners. It may seem strange, in the situation we are now in, that on 2nd December 1983 Members on both sides of the House said that miners and their families are "the salt of the earth". At times like this, when there are ruffled feathers, we should remember the kind of job which miners do.

Pneumoconiosis is an industrial disease that is very closely associated with mining. The Bill deals with other personal injuries. Asbestosis is an obvious one, but there are many others. One of the interesting points that was made by my honourable friend in another place was that a noisy atmosphere can result in personal injury. Not only a noisy atmosphere, because of the thumping of machinery or other loud noise, causes personal injury. Mr. Eadie said that evidence is emerging from the industrial scene in America that even people who play in symphony orchestras have to bear a level of sound which is well beyond what is permissible.

Because of the distinguished legal company in which I find myself this evening, may I very briefly put on record the effect of the Bill, as I understand it and as I have been able to follow it from the words of my honourable friend in another place. A prescription is a principle of law that extinguishes completely some claims or rights after a fixed period. There are two forms of prescription. The first is the prescription of heritable rights where, after 10 years, an apparently valid title to heritable property becomes unchallengeable. There are also prescriptions which, after the appropriate period of five or 20 years has expired completely, extinguish the rights and obligations to which they apply.

The word "limitation" also appears in the title of the Bill and may well cause difficulties for lay members. The principle of limitation is that the expiry of a stated period bars the raising of an action to enforce a claim. It is a rule of procedure that does not extinguish the claim but simply prevents it from being enforced. Since 1954 the most important general rule of limitation has been that actions for damages for personal injuries or for death arising from those injuries must be raised within three years. The rule was set out in the Law Reform (Limitations of Actions, etc.) Act 1954.

The need for such rules can be summarised as follows. First, there is the need to protect the defender from being subject to possible claims over a long period. In all fairness, there must come a time when it would be wrong to continue to allow a possible claim to hang over somebody. In other words, there must come a time when the books are closed. Secondly, there is the need to ensure that claims are dealt with as quickly and as expeditiously as possible. The longer the delay, the less reliable the evidence on both sides, particularly when, very frequently, the evidence is eyewitness evidence. We all know what can happen when, after several months or perhaps years have elapsed, people have to try to recall an incident.

The Bill proceeds by way of amending the Prescription and Limitation (Scotland) Act 1973. Sections 17 to 19 of the 1973 Act deal with the limitation of actions and I propose in the Bill to substitute new Clauses 17 and 18, which are incorporated in Clause 2 of the Bill, for those provisions. Clause 17 of the Bill restates the basic principle but perhaps more clearly. It provides that no actions in respect of personal injuries may be brought after three years from the injury being sustained or the date at which the claimant becomes aware that he is suffering from an injury. The date of the claimant becoming aware that he is suffering from an injury is a substantial definition and an instruction to the courts.

The Scottish Law Commission considered that the expression "act, neglect or default" in the existing legislation was too indicative of a suggestion of fault or blame. The Bill therefore refers simply to an "act or omission" giving rise to an injury. I am advised and assured that this covers all possibilities and is a more acceptable term. The Bill retains the requirement that if the act or omission giving rise to the injury is a continuing one, the relevant date for calculating the three-year period should be: the date on which the act or omission ceased". Noble Lords will appreciate that it is impossible for legislation to take account of each and every circumstance. The formula adopted will enable the courts, which are best placed to make decisions, to take account of the differing circumstances of claimants and the differing nature of their injuries.

I hope that I have said enough to convince the House that, although the Bill itself is couched in rather technical, legal terms, it deals with real issues. In clarifying the law and seeeking to remove doubts in an important area of the law, it will be of real benefit. The Scottish Law Commission report made it clear that, while the law is generally satisfactory, there are areas where it can be improved for the benefit of all. That is what I am trying to do on behalf of my honourable friend in another place. I am convinced that we should take the opportunity to effect these improvements and I hope that your Lordships' House will give the Bill the support that I believe it thoroughly deserves. I beg to move.

Moved, That the Bill be now read a second time.—(Lord Carmichael of Kelvingrove.)

7.22 p.m.

Lord Wilson of Langside

My Lords, as the noble Lord, Lord Carmichael of Kelvingrove, has said, this little Bill is the latest contribution to the development of that chapter of the law which started with the Law Reform (Limitation of Actions) Act 1954. The House is much in debt to the noble Lord for his presentation and explanation of the Bill, as was the other place in debt as far as the contribution of Mr. Eadie, who presented the Bill there, was concerned.

The House will be relieved to know that I do not intend to detain your Lordships with a detailed exposition of this branch of the law over the past 30 years. Suffice it to say that, as almost invariably happens when sensible, desirable, and welcome reforms are made, from time to time unforeseen problems present themselves. One is sometimes surprised that the original reformers failed to foresee the changes which might be required. In any event, there is no doubt, for the reasons which the noble Lord, Lord Carmichael, has explained, that if and when this Bill is approved by your Lordships—as I am sure it will be—this chapter of the law will be in a better state than it was before.

The Bill proceeds on the report of the Scottish Law Commission. Occasionally, rude things are said about the commission and occasionally the commission says rude things about politicians who are too slow to give effect to the commission's proposed reforms. But the House is in debt to the commission, and in due course so will be those who are to benefit—because there will be real benefits flowing from these changes. That is all I really want to say from these Benches, in confirming that we welcome this Bill.

The only other comment I should like to make—and I say this most warmly—is that like the noble Lord, Lord Carmichael. I welcome the new noble and learned Lord the Lord Advocate. It is true that at my age I possibly knew his father a little better than I know him. But there is general agreement at the Scottish Bar and among those who know him. There is not always general agreement at the Scottish Bar, any more than there is anywhere else and it sometimes disagrees about people and affairs. But I have heard no words of disagreement, and it is anticipated that the Government and this House will greatly benefit from the noble and learned Lord's advice and contribution to their affairs. He combines great charm with dignity and integrity, as we all know, and we must all look forward to his contribution to the work of this Parliament, which it is anticipated will last as long as another four years—although I hope occasionally that it might be shorter than that.

7.26 p.m.

Lord McCluskey

My Lords, although my name is not on the list of speakers, I hope that the House will allow me to make a short contribution to this debate from the Front Bench. I will begin by thanking my noble friend Lord Carmichael of Kelvingrove for introducing this Bill, and by correcting something that he said. My noble friend informed the House that there were two former Lord Advocates in the Chamber. There is only one, and he is the noble and learned Lord, Lord Wilson of Langside, who has just spoken. I was a mere Solicitor General—a handmaiden of, and a tool wielded by,another—Mr. Ronald King Murray, as he then was. I want also to acknowledge the contribution made by Mr. Alec Eadie in another place in introducing this Bill and by the Scottish Law Commission—which in effect drafted the Bill which is to become legislation. if it is indeed passed.

From the Front Bench, we support this Bill. We do not seek and would not seek to make any inroads into the principle of prescription which was introduced into Scots law some 30 years ago. What we do, however, is welcome the clarification of the law which is to be found in this particular Bill. It also relieves to some extent the burden upon those whose personal injuries are not of a clear-cut kind sustained on one occasion but are personal injuries, sometimes of an extremely grave character, sustained over a long period of time in one of the ways mentioned by my noble friend Lord Carmichael of Kelvingrove.

I hope that when the noble and learned Lord the Lord Advocate comes to reply, he may mention Section 19A of the 1973 Act, which was introduced by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980. That is a measure which also gives some opportuntiy for those who are beyond the period of three years to raise an action. I hope that Section 19A and the new sections introduced by this Bill can work together in order to improve the lot of those who sustain unjury and who have not had a proper opportunity to raise a claim.

Finally, I join with others in welcoming the noble and learned Lord, Lord Cameron of Lochbroom. He may wonder what curious fate has caused him to make his maiden speech on the Prescription and Limitation (Scotland) Bill during the dinner hour. I remind the House that in October 1976 I made my maiden speech on the Electricity (Financial Provisions) (Scotland) Bill during the dinner hour. After I had sat down, my speech was greeted with such enthusiasm and warm praise by the noble Lord, Lord Mowbray and Stourton. that I wondered whether I had by mistake delivered the Gettysburg Address or even the Sermon on the Mount. I cannot speak after the noble and learned Lord, the Lord Advocate; I must speak before him. I hope he discovers in this House—and I am sure that he will—the same courtesty and kindness which I have always found from all sides of the House, not least from his most distinguished predecessor, Lord Mackay of Clashfern. I commend this Bill to the House.

The Lord Advocate (Lord Cameron of Lochbroom)

My Lords, I should first of all like to express my thanks for the most generous words which have been said already by noble Lords. I particularly take to heart what was said by the noble and learned Lord, Lord McCluskey, about speaking in the dinner hour. I know that he frequently speaks in the dinner hour and gives a very sparkling performance. It is nice to think that it was electricity which made him speak in this House on the first occasion.

Moving to more serious matters, I should say at the outset that I am glad to take this opportunity to confirm the Government's support for this Bill. In our view, this is a valuable Bill and we should give it a fair wind and calm waters on which to be launched. I am therefore most grateful to the noble Lord. Lord Camichael of Kelvingrove, for introducing the Bill. The Bill is, as those of your Lordships who have read it will see, what might be called "lawyers' law" and it may not appear as the most exciting legislative measure which your Lordships have been asked to consider—certainly not today. Nevertheless, the noble Lord, Lord Carmichael of Kelvingrove, has made the point very forcefully, and indeed properly, that this Bill is an important measure of law reform. It will benefit those who are involved in personal injury claims by providing a clearer exposition of the time limits applying to such actions.

It also contains within it two other clauses, the first of which deals with expressing in perhaps more proper form from the point of view of Scots lawyers the extention of a right to recover damages from other wrongdoers at the hand of a wrongdoer if he has already been found liable for them. That is Clause 1. Secondly, so far as Clause 4 is concerned, it provides that where a Scottish court is obliged to apply foreign law to any particular situation the foreign rules of prescription limitation should also be applied to the exclusion of Scots law rules. This is a perfectly straight-forward way of dealing with what otherwise might be a complicated situation.

The Scottish Law Commission undertook consultative and very detailed consideration of this area of law before formulating their recommendation. If I may say so, the honourable Member for Midlothian very wisely chose to follow closely upon those recommendations when promoting the Bill in another place. What your Lordships have before you, therefore, is a Bill which does not attempt to tamper with the basic principles of the existing law but which carries out necessary modifications to make those principles more readily understood and workable in practice.

The provisions of the Bill leave untouched the discretionary power of the court to override the time limits if it seems equitable to do so: that is to say, the provision which is contained within Section 19A of the existing statute. Such clarification as is proposed in this Bill is of undoubted benefit to those who might become involved in personal injury claims whether as a pursuer or as a defender.

Conscious of the criticisms which have been levelled against the existing statutory provisions from my own experience in the courts, I am particularly grateful to have this opportunity to commend a Bill which is attempting to clarify (and I trust will) the rules of limitation which apply where an injured person does not become aware of his injuries, or of what caused them, until some time after they first occur. This is a situation to which noble Lords have already referred and which can often arise in cases of respiratory disease such as pneumoconiosis or asbestosis where the onset of the disease may never be exactly fixed and its diagnosis may initially be uncertain.

As the noble Lord mentioned in his opening remarks, there is a need to balance the interests of all parties. The Government are satisfied that the Bill will be of real practical benefit to those concerned in actions to recover damages for personal injuries and to those on the receiving end of such claims. The Bill makes changes in the law which seek to meet the criticisms of the present state of the law made to the Scottish Law Commission during their consultations, and we must be very thankful to them for the care which they have taken in their consultations.

The noble Lord has already explained the main provisions of the Bill and I consider it may be unnecessary for me to go any further on that score. I shall simply assure the noble Lord of continuing Government support for this very useful Bill and, if I may take up the nautical metaphor I used earlier, I wish it a speedy voyage onto the statute hook. I therefore commend the Bill to your Lordships for its Second Reading.

Lord Carmichael of Kelvingrove

My Lords, may I briefly thank the noble and learned Lord the Lord Advocate for his reception of the Bill. He said that the Law Commission had taken great care when they formulated their report and published the draft Bill. I think that the House should be grateful to him in his maiden speech for having taken such care and courtesy in replying to the Bill and clarifying one or two of the points which certainly I, as a non-lawyer, am finding out more about every time I read the Bill and every time I listen to my own noble and learned friends in the House here.

I do hope—and I say this in no empty way—that we hear a great deal from the noble and learned Lord the Lord Advocate in the future, and I hope we can always be as pleased and happy with the decisions he makes as we are with the one he made tonight.

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