§ 8.36 p.m.
§ Lord Macaulay of Bragar
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 Macaulay of Bragar.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ELLIOTT OF MORPETH in the Chair.]
§ Clause 1 [Rights of relatives of a deceased person]:
§ The Earl of Selkirk had given notice of his intention to move Amendment No. 1:
§ Page 1, line 12, leave out ("from the deceased's society and guidance").
§ The noble Earl said: I am not going to talk about this amendment at all. We are at a late hour and there are very few Members present for a Bill of outstanding importance. I question whether further discussion at this stage is really worthwhile. I suggest that we take a further look at the report which we have in front of us. I have regard for the report for a special reason. I remember very well when Lord Gardiner was Lord Chancellor 25 years ago. He suggested that an examination should be made of the problems which arise through statutory work.
§ When Lord Gardiner made his statement I was sceptical. I was not sure what he was going to do. I now say that he was right. He has added something to the structure of the way in which Scottish law can be developed. We are extremely indebted to him.
§ What we are doing is a little difficult. We are saying that the former law was wrong. The noble Lord will tell me whether it has to be abolished and whether we have to put a complete new law in its place. It is an extremely important matter. It deals with all damage or death to individuals of this country whether they be in industry, in motor cars or for any other reason whatever. It affects everybody and no matter who they are.
§ It is very important that the structure and shape of this Bill should be properly dealt with. I do not want to move the amendments tonight because the occasion is too thinly attended. It is an important one. The noble Lord probably wishes to say a number of things about his amendments. I suggest that postponement 267 should be accepted. The noble Lord, Lord Macaulay, will deal with the amendments put down by him. My amendments have been put down by the Law Society of Scotland. We should examine them and see whether they are fit. The noble Lord can take his own amendments and have them examined by his colleagues to find out how far they will be effective for the purpose.
§ This Bill is important and it has to be good. It is no good pretending that we can provide a half-hearted Bill. It is an important Bill and we would be criticised by all kinds of people if we do not get it right. We must get it right. Even if it is a matter of convenience for anyone who is here tonight to rush it (which it probably is not) it is much more important that we should thoroughly satisfy ourselves that the way this Bill is shaped is suitable.
§ We have put in some observations. We have cut out certain words that are believed to have an unsatisfactory significance. We have made it a little more open to the courts. They are not compelled to follow a certain course but they can follow a course according to their view. These are small points but they are in the clauses. I do not want to press this further tonight. I shall leave it to the noble Lord to develop the point. I should like these observations read by what I might call the members of both societies, and for them to examine carefully what has been said to see whether it meets their requirements and that we can satisfy ourselves that we have put forward the best Bill that we can. In these circumstances, I do not propose to say any more. I shall not move Amendment No. 1.
§ [Amendment No. 1 not moved.]
§ [Amendment No. 2 not moved.]
§ [Amendment No. 3 not moved.]
§ Lord Macaulay of Bragar moved Amendment No. 4
Page 1, line 16, at end insert:
("(2) At the beginning of subsection (5) of that section there shall be added the words "Subject to subsection (5A) below,".
(3) After subsection (5) of that section there shall be inserted the following subsection—
(5A) Where a deceased has been awarded a provisional award of damages under section 12(2) of the Administration of Justice Act 1982, the making of that award does not prevent liability from arising under this section but in assessing for the purposes of this section the amount of any loss of support suffered by a relative of the deceased the court shall take into account such part of the provisional award relating to future patrimonial loss as was intended to compensate the deceased for a period beyond the date on which he died.".").
§ The noble Lord said: Amendment No. 4 in my name seeks to insert a new subsection in Section 1 of the Damages (Scotland) Act 1976 which relates to the rights of relatives of a deceased person. The amendment is somewhat technical and caters for a situation which is likely to arise fairly infrequently. I can perhaps best illustrate the need for the amendment by means of a simple example. Take the case of a shipyard worker of 40 years of age who has contracted asbestosis as a result of working with that substance. His doctor tells him that he has scars on his lungs and 268 that he is unfit for any gainful employment. The doctor also reveals that there is a risk of mesothelioma developing at an unspecified future date.
§ Faced with a complete loss of future earnings, the claimant seeks advice from his lawyer who decides that the best course for the claimant is to raise an action for provisional damages in terms of Section 12 of the Administration of Justice Act 1982. The action is raised and the pursuer recovers solatium in respect of the injury to his lungs and he is awarded a sum representing loss of earnings for a period of future time. The court awards these damages as provisional damages under, and in terms of, Section 12 of the 1982 Act. In a year or two after the provisional award has been made mesothelioma develops and causes the claimant's death before he has an opportunity to return to court to finalise his award.
§ Two questions arise. The first is: do the provisions of Section 1(2) of the 1976 Act prevent a claim being made by the relatives? Section 1(2) should not preclude the raising of an action by the relatives on his death. In part, this amendment is intended to remove any doubt as to that. The second question is whether there is a possibility that there could be an overlap of the loss of earnings awarded as a provisional award under the 1982 Act to the claimant and the loss of support which may be claimed by the relatives under Section 1(4) of the 1976 Act. It would appear that this might well arise as there could be a potential overlap of patrimonial damages where the deceased has obtained in his provisional award of damages a sum representing his entire loss of earnings throughout his life. In such a case it would be inequitable that the defender should also be liable to pay the relatives damages for loss of support resulting from the deceased's death. If this had not been a provisional award of damages, the payment of such an amount for patrimonial loss would have discharged the defender's liability and thus prevented the relatives claim from arising.
§ To obviate the possibility of double damages being paid, the amendment enables the court to take into account in considering the relatives' claim such part of the provisional award relating to future patrimonial loss as was intended to compensate the deceased for any period beyond the date on which he died. I hope you will agree that this amendment clarifies the existing law and provides a solution which is fair both to the relatives and to the defender. I beg to move.
§ 8.45 p.m.
§ Baroness Carnegy of Lour
I am sure that it was a very full description of the amendment that the noble Lord gave. It is not easy for a lay person to follow that kind of description. Can he tell the Committee whether this amendment comes from any particular body? Is this a Law Commission second thought about the Bill, or does it come from any particular direction? It would help the Committee to understand what is happening. I do not think it was mentioned at Second Reading. I was not able to be here but I have read the Hansard report and I do not remember that aspect being mentioned.
§ Lord Macaulay of Bragar
To be honest at this stage, I cannot be precise; but I think it arises out of the report of the Scottish Law Commission on the effect of death on damages.
§ The Lord Advocate (Lord Rodger of Earlsferry)
Perhaps I could help my noble friend Lady Carnegy. This particular amendment derives from I shall not say a second thought but a further thought by the Scottish Law Commission and a letter from Lord Davidson on this matter. It was realised that if this particular amendment was not brought in, a difficulty would arise where someone died after a part of the procedure had been gone through, and that while alive that person had recovered a sum of money which would include a sum for future loss of earnings for a period beyond that period when he actually died.
Therefore, when he had died and his relatives then came to bring their claim, and that claim being for a loss of dependency during the period after his death, it was seen that there would be a possibility of double counting, so to speak. In order to take account of that matter, the chairman of the Scottish Law Commission wrote, and this is an amendment deriving from the Scottish Law Commission.
§ On Question, amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Clause 2 agreed to.
§ Clause 3 [Transmissibility to executor of deceased's right to solatium for his injuries]:
§ The Earl of Selkirk moved Amendment No. 5:
§ Page 2, line 9, leave out ("not").
§ The noble Earl said: This is an important point. The Bill would delete that on the death of a certain person the executors will be fully informed. The executors should be fully informed. In a way it is a small point but they may be interested in a variety of matters and all sorts of things may be concerned relating to the property of the man who died. His relatives and friends should be acquainted as to how they stand. For that reason this should remain and the word "not" should be taken out. It seems to me to be fair to the persons concerned and that that is the best way to handle it.
§ Lord Rodger of Earlsferry
I am not sure that I understood the noble Earl, Lord Selkirk, when he said that he thought that the relatives should be informed of a certain matter, and he thought that if the amendment was not carried, the effect would somehow or other be to deprive the relatives or the executor of some information. I think that what the noble Earl said perhaps rested on a misunderstanding of the purpose of Clause 3(2). I shall explain what the effect of Amendments Nos. 5 and 6 would be.
The idea of the amendment of the Law Society was that not only claims for solatium but also claims for patrimonial loss in the period after the deceased's death should transmit to an executor on the death of the deceased injured person. The existing Section 2(3) (b) of the Act, which is re-enacted by what will become Section 2(2), is intended to prevent the duplication of damages. But Section 2(3) (b) does much more than that because it actually expresses one of the 270 fundamental purposes behind the Act and rests on a principle which has been part of Scots law for—I put it at the very lowest—at least 100 years. The principle is that compensation is directly related to the loss suffered.
When a claimant dies the situation is radically changed, and in the new situation the claims of the deceased's executor and the claims of the surviving relatives are quite distinct. The claim of the executor is one for compensation for losses which have been suffered by the deceased up until the date of his death. Thereafter, the deceased having died, he can suffer no more and it is a matter of compensating relatives for their losses after the deceased's death. That is the basic structure of the legislation. This amendment would completely undermine it.
I should add that with the introduction of the new rules on transmissibility, which is the whole point of the Bill, the family should be substantially better off than it was formerly. In addition to solatium, which would come via the executor, the relatives enjoy the right of loss of support suffered since death or likely to be suffered as well as the reformulated loss of society award relating to non-patrimonial benefits.
The effect of the amendment would be particularly unacceptable if the deceased died leaving no dependants who can make a claim for loss of support. It could then happen that some beneficiary who might be a very remote relative would receive a windfall sum of damages which would apparently be designed to compensate the deceased for earnings which he could not make because he was dead. Such a concept verges on the grotesque.
There may indeed be a case for a further and wider review of the current law on damages, as the noble Earl suggested, but this amendment would represent a fundamental departure from the present law and would raise much wider issues such as the possible use of structured settlements or actuarial methods for calculating damages. No change such as is envisaged by Amendments Nos. 5 or 6 could possibly be contemplated without wide-ranging consultation and without seeking the advice of the Scottish Law Commission. I underline the fact that the Bill has been prepared by the Scottish Law Commission. Bearing those matters in mind, I ask the noble Earl to withdraw the amendment.
The Earl of Selkirk
I hate to say this but I could not understand the noble and learned Lord the Lord Advocate. I did not follow his argument. He said that the relatives should get other things, which is exactly what I am trying to do. If a man is killed, one would expect his wife and children to get something. Who would give it to them? The executors would receive it and it would be up to them to hand it on.
I listened as carefully as I could to what the noble and learned Lord said. If he can tell me that that is what will happen, I shall not press the point further. I realise that the Bill is not finished and is still in a somewhat immature state. But if that is not what it does, I think it is wrong. The relatives must get those things. It may be a house, a handkerchief, tables or chairs, but that is what they should have. There is no 271 protection if the word "not" is left in. The noble and learned Lord may show that I am wrong but that is my reading of the Bill as it stands.
§ Lord Rodger of Earlsferry
I am sure that it is my fault if the noble Earl did not follow my explanation. if can assure him that the Bill as it stands does not take away anything from the relatives. On the contrary, the effect of the Bill will be to increase what is claimable by the executor. As the noble Earl rightly said, the executors would pass it on to the people entitled to it.
Under the present law the executor can claim only for damages suffered by way of patrimonial loss by the estate up until the date of the man's death. The executor cannot recover damages for the pain and suffering which the man has suffered up until the present date. The effect of the Bill will be that from now on the executor will have a claim which will relate not only to the loss suffered but also to the pain and suffering which the man experienced before his death. The effect of the noble Earl's amendment would be to go much further than that—this is where I take issue with it—and to undermine the principle underlying the whole of our law of damages and say that, in addition to that, a sum will be awarded for earnings which he would have had after his death. What happens under law is that the estate does not get earnings after the man's death but the relatives get a sum which represents what they would have been expected to get if he had lived. That is a just and fair way of proceeding. It is certainly the way the law has been up until now.
It may be that I have not made the matter sufficiently clear. I should he more than happy to discuss it with the noble Earl between now and Report stage. If he has any doubts or hesitations at that stage I have no doubt that he will raise the matter again. I ask him to withdraw the amendment at this stage.
The Earl of Selkirk
I do not have doubts on the laying down of the law by the Lord Advocate on any account. I would not for a moment press this point. But what I am saying is that I do not understand how the damages of a man who has been killed can possibly transfer to his relatives. That seems to be one of the things the noble and learned Lord said, but I may not be right. I am sure that the noble and learned Lord has taken the point; he has asserted that without the "not" he gets the point. If he says that, I am prepared to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 6 not moved.]
§ Clause 3 agreed to.
§ Clause 4 [Enforcement by executor of rights transmitted to him]:
§ Lord Carmichael of Kelvingrove moved Amendment No. 7:
§ Page 2, leave out lines 28 to 33 and insert:
§ (" "Enforcement by executor of rights transmitted to him.
§ 2A.—(1) For the purpose of enforcing any right transmitted to an executor under section 1A or 2 of this Act the executor shall be entitled—
- (a) to bring an action; or
- (b) to he sisted as pursuer if an action for that purpose has been brought by the deceased but has not been concluded before his death.").
§ The noble Lord said: After the discussion between the Lord Advocate and the noble Earl, Lord Selkirk, I approach this fairly simple amendment with a certain temerity. The amendment is proposed by the Law Society of Scotland. Its purpose is to restructure Clause 4 and is for clarification purposes only. The Law Society of Scotland considers that Clause 4 as presently worded is unclear. It has therefore asked me to put forward this amendment which is certainly simpler in terms of words. As to whether it is as clear legally, I await the Lord Advocate's comments. I beg to move.
§ 9 p.m.
§ Lord Macaulay of Bragar
I am grateful to my noble friend Lord Carmichael of Kelvingrove for bringing the matter before the Committee. In dealing with the amendment, I should put on record the fact that we are grateful to the Law Society for the careful and constructive approach that it has taken to what is a most important Bill and one which is demanded by the people of Scotland. In this case, I am prepared to give my noble friend an assurance that the principle behind the amendment is acceptable. It will require a little redrafting but that will not change the spirit of the amendment; indeed, I think that it will make it much clearer. With that assurance, I hope that my noble friend will see fit to withdraw the amendment.
§ Lord Carmichael of Kelvingrove
I know that my noble friend Lord Macaulay of Bragar has spent much time on the Bill and had many discussions with the Law Society. Therefore, until we reach Report stage, I am certainly happy to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 agreed to.
§ Clause 5 agreed to.
§ Clause 6 [Transitional provisions]:
§ [Amendments Nos. 8 to 10 not moved.]
§ Lord Macaulay of Bragar moved Amendment No. 11:
§ Leave out Clause 6 and insert the following new clause:
§ Transitional and retrospective provisions
§ (" .—(1) Section IA of the 1976 Act (as substituted by section 2 of this Act) shall have effect as if it expressly provided that the reference to a right to damages under section 1 of the 1976 Act included a reference to a right under that section as it existed at the time when the right vested and section 2A shall have effect accordingly.
§ (2) Section 1A of the 1976 Act shall also have effect as if it provided that the reference to a right to damages under section 1 of the 1976 Act included a reference to a right to damages by way of solatium in respect of the death of a person under the law in force before 13th May 1976 and section 2A shall have effect accordingly.
§ (3) Section 9A of the 1976 Act shall not affect any proceedings commenced before this Act comes into operation.
§ (4) Subject to the following provisions of this section, this Act shall have effect only in relation to deaths occurring on or after its commencement.
§ (5) Notwithstanding section 3 of the 1976 Act, section 1A of that Act shall have effect, subject to subsection (8) below, in the case of the death on or after 16 July 1992 of the relative concerned.
§ (6) Notwithstanding section 2 of the 1976 Act as it existed prior to the commencement of this Act, that section as 273 substituted by section 3 of this Act shall have effect, subject to subsections (7) and (8) below, in the case of the death on or after 16 July 1992 of a person in whom was vested immediately before his death a right to damages in respect of personal injuries.
§ (7) Subsection (6) above shall not apply in the case of a death before the commencement of this Act in so far as it would enable an executor to recover damages (other than for patrimonial loss) in respect of injury resulting from defamation or any other verbal injury or other injury to reputation sustained by the deceased.
§ (8) Neither subsection (5) nor (6) above shall apply where the rights to damages which transmitted to the deceased's executor under section 1 or 2 of the 1976 Act prior to the commencement of this Act have been subject to—
- (a) a full and final settlement; or
- (b) determination by a court in a final judgment within the meaning of section 19A(3) of the Prescription and Limitation (Scotland) Act 1973,
§ (9) In calculating whether a claim made by an executor by virtue of subsection (5) or (6) above is unenforceable by virtue of the provisions of Part II of the Prescription and Limitation (Scotland) Act 1973, the period starting with the date of death and ending with the commencement of this Act shall not be taken into account.").
§ The noble Lord said: In my remarks during the Second Reading debate I informed noble Lords that it was my intention to bring forward an amendment to Clause 6 of the Bill which would enable the new rights of transmissibility to executors to apply in cases where the death of the injured person occurred on or after the date of introduction of the Bill in this Chamber —namely, 16th July 1992—subject to certain provisions and, in particular, provided that those rights could not be exercised if the claim was time-barred (obviously, by the passage of time as set out in law) or had been settled, or judicially determined in a court. The amendment seeks to give effect to that undertaking. The clause is necessarily somewhat complex in its structure. It may assist Members of the Committee if I explain its principal provisions.
§ Subsections (1) and (2) clarify the effect of Section 1 of the 1976 Act and also the pre-1976 Act rights of any people still affected by the law as it was then. They make it clear that in those cases Section 2A, as inserted by Clause 4, shall have effect. Subsection (3) provides that Section 9A of the 1973 Act, inserted by Clause 5, does not affect any proceedings commenced before the Act comes into operation. Subsection (4) makes clear that, subject to the provisions of Clause 6, the Act shall have effect only in relation to deaths occurring on or after its commencement.
§ Subsections (5) and (6) make provision for the retrospective effects of Sections 1A and the new Section 2 of the 1976 Act in any case where a death occurs on or after 16th July 1992. Sections lA and new Section 2 make provision for any right to damages, whether patrimonial or non-patrimonial, which is vested in a relative under Section 1 of the 1976 Act or in an injured person, immediately before his death, to transmit to an executor. In the case of such a person who dies on or after 16th July 1992 and before the date of commencement of the Bill, the effect of those 274 subsections is to provide, subject to the following provisions, that the right to damages will transmit to the executor on the date of commencement of the Bill.
§ Subsection (7) provides that subsection (6) does not apply in the case of a death before the commencement of the Act in so far as it would enable an executor to recover damages (other than patrimonial loss) for injury resulting from defamation or other verbal injury to reputation sustained by the deceased.
§ Subsection (8) provides that neither subsections (5) nor (6) shall apply where the rights to damages which transmitted to the deceased's executor under Sections 1 or 2 of the 1976 Act, prior to the commencement of the Bill, have been subject to a full final settlement or a determination by a court in final judgment before the commencement of the Act.
§ Subsection (9) provides that in calculating whether a claim made by an executor by virtue of subsections (5) or (6) is unenforceable due to the passage of time —that is, by virtue of the provisions of Part II of the Prescription and Limitation (Scotland) Act 1973—the periods starting with the date of death (if death occurred on or after 16th July 1992) and ending with the commencement of the Act shall not be taken into account.
§ No doubt that explanation sounds very technical —indeed, it is very technical—but it was correct to put it on record so that people, especially lawyers, who read the report of the debate will understand the purpose of the amendment. I trust that Members of the Committee will agree that, in effect, the solution of suspending the running of the prescription period in the last section that I mentioned represents a reasonably fair means of dealing with what we all hope will be a small number of claims arising in that interim period.
§ As the noble and learned Lord the Lord Advocate remarked on Second Reading, whether there is retrospection or not, there will always be a degree of unfairness to someone when one case is viewed against another. It is not possible to reopen cases where settlement has been made; nor, for the reasons explained by the noble and learned Lord, is it possible to change the rules for ongoing cases, irrespective of when death occurred. However, if the amendment is accepted by the Committee, it should provide some degree of comfort to those currently suffering from a terminal industrial disease. Should such people die before the Bill is enacted, it will ensure that their families will, nevertheless, be able to benefit from the improved provisions. That is the main objective behind the Bill. I beg to move.
§ Baroness Carnegy of Lour
As the noble Lord has explained to me the reason behind the amendment, I understand it very well. I have also read his Second Reading speech and that of my noble and learned friend the Lord Advocate. I understand that the amendment has been put forward for reasons of compassion and sympathy for certain people who will be on the wrong side of the cut-off line when the Bill becomes enacted.
As I understand it, the intention is to backdate part of the clause to the date of the Bill's First Reading. On Second Reading, I believe that both the noble Lord 275 and my noble and learned friend said that there were precedents for the provision. As a lay person, it seems to me to be extremely strange that one can arbitrarily fix the date when the Bill received its First Reading as the date after which people are able to take advantage of the Bill's provisions. I wonder whether the noble Lord, Lord Macaulay, or my noble and learned friend can tell me what kind of precedents there are in this respect? Are they numerous? It seems very strange. I wonder whether it is good law.
§ Lord Macaulay of Bragar
I thank the noble Baroness for raising the point which, of course, interests us all. The reason for taking the provision back to First Reading is that the House sets its face against retrospective legislation in principle, and we had to strike a balance. There has to be a cut-off point at some stage, and we believed that we were doing the best that we could and being as fair as we could by making the First Reading what the noble Baroness has called the arbitrary date. I describe it as the most reasonable date that we could think of in all the circumstances.
§ Lord Macaulay of Bragar
I cannot quote a precedent. Each Bill has to be considered on its own merits. Perhaps the noble and learned Lord the Lord Advocate can give some precedents.
§ Lord Rodger of Earlsferry
I do not believe that I can put my hand on a precedent at the moment, but I am aware in general terms that there are Bills which have been given effect from the date of First Reading. That is done on the broad principle that from that stage onwards the people who have an interest in the possible effects of the Bill are, so to speak, put on notice as to the effect that it will have. That is the reasoning underlying the choice of the date. It might be helpful if I were to write to my noble friend and give her details of some examples. I can assure her that this has been done in the past.
I am grateful to the noble Lord, Lord Macaulay, for the care that he has given to this provision and others and also, of course, to the Law Society of Scotland which has taken an interest in the Bill and has discussed various aspects of it with him and the noble Lord, Lord Carmichael. I am grateful to everyone involved.
§ On Question, amendment agreed to.
§ New Clause 6 agreed to.
§ Remaining clauses and schedule agreed to.
§ House resumed: Bill reported with amendments.