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Clause 10—(Provisions Relating To The Armed Forces)

Volume 439: debated on Friday 11 July 1947

The text on this page has been created from Hansard archive content, it may contain typographical errors.

I beg to move, in page 8, line 41, to leave out "and," and to insert:

(a) at the time when that thing is suffered by that other person, he."
The purpose of this Amendment, and of the subsequent Amendments to this Clause which stand in my name, is to meet what was thought to be the desire of the House on Second Reading, that the common law rights of a member of the Armed Forces should not be taken away, except in those cases where the events giving rise to the rights were treated by the Minister of Pensions as attributable to service for purposes of pensions. These Amendments bring that about. Pension entitlement as I suggested on Second Reading will in most cases—I will not say in every case—be as valuable to the soldier concerned as any lump sum for damages which he might recover.

I want to controvert the last statement of the Attorney-General that the pensions rights will be as valuable as those which are likely to be given by a civil court. This is a matter of real difficulty. It is obvious that men in the Armed Forces can and do sustain injuries from tortious acts, which are part of the warlike actions they carry on. One cannot hope to distinguish, for instance, between the accidental firing of a rifle causing injury, and injury caused by a rifle bullet in war. There is a large class of motor accidents which give rise to very real difficulties. It is not necessary to say that the rights of a widow who has lost her husband by tortious act, under the Disabled Persons Pensions Act, are nothing like the rights she has under common law if she pursued an action for damages.

I remember well the case of a man in uniform, walking across a place which was technically Army property, who was not there on duty, except in so far as every man in the Army during the war was on active service and was, therefore, technically on duty, being knocked down by a vehicle—and carried hundreds of yards—driven by an Air Force officer in uniform, and carrying other persons. The vehicle did not stop but was located in a damaged condition by police outside the headquarters of the local aerodrome. Every possible obstacle was placed in the way. The officer commanding said that he had no idea who had used the car, and whoever had done so had done it without his authority. It was impossible to establish who had driven the car. The result was that the widow had no rights in the matter. It is only fair to say that ultimately the Claims Commission made a not ungenerous award of a sum which was less than she might have got by legal process but was certainly more than she would get under the operation of this Clause. I think that it is a fair example of what might happen.

3.0 p.m.

In wartime any man in uniform is on duty. Any man may be the victim of dangerous driving, and the person driving the vehicle can be said to be performing part of his duties in wartime. The man may be coming home or may be returning from leave, and still be on military duty. He certainly would be if he had been recalled to the Service urgently because of some military event. The Government are wiping out a great many rights of the subject. I accept as a fact that the intention in moving the Amendment is to meet certain criticisms, but I do not think the Amendment carries out that intention.

Amendment agreed to.

Further Amendments made: In page 8, line 41, leave out "such," and insert:

"a member of the armed forces of the Crown."

10 line 44, at end, insert:

(b) the Minister of Pensions certifies that his suffering that thing has been, or will be, treated as attributable to service for the purposes of entitlement to an award under the Royal Warrant, Order in Council or Order of His Majesty relating to the disablement or death of members of the force of which he is a member."

In page 9, line 3, after "Crown," insert:

(a)that thing is suffered by him."

In line 6, at end, insert:

(b)the Minister of Pensions certifies as mentioned in the preceding subsection."

In line 9, leave out "any of the matters aforesaid," and insert:

"anything suffered by a member of the armed forces of the Crown being a thing as to which the conditions aforesaid are satisfied."—[The Attorney-General.]

I beg to move, in page 9, line 10, to leave out Subsection (3).

This relates to rather a technical point and I hope the Committee will, therefore, forgive me if I explain it. Subsection (3) limits the right of a potential plaintiff in an accident case where two or more persons are responsible for his injury or damage and one of them is protected by the Clause which is under discussion. The position normally at law is that a person who is the victim of an accident caused by two or more tort feasors, as they are called, is entitled to sue any one of them for damages, and to get the whole of his damages from any one. It any of them wants to recover the due proportion of the damages from any of the others responsible, he can do so. That right does not limit the chance which the plaintiff can have to go to the rich man and make him pay. That is fundamental to the present situation.

When, for one reason or another, one of those joint tort feasors is unable to get his contribution, either because the other man has no money or cannot be found or because some other event has happened, that does not in any way prejudice the position of the injured man to get damages from any one of them This Clause proposes to take that right away in a limited number of cases, that is to say, where the person suing and the person sued are covered by the other terms of the Section. In my submission, that is wrong, first, because it is inconsistent with the rest of the law as we know it and, secondly, because it is fundamentally unjust.

It can be said in answer to this that the man gets his pension rights which he would not otherwise get. I do not think that would always be true, but even if it were, it would not provide an answer to my Amendment because it must be absurd fundamentally to turn litigation into a lottery—more of a lottery than it must necessarily be. It is absurd to turn it into a lottery in the sense that a man loses part of his right to damages, to which he would otherwise be entitled, if it so happens that he is wronged by two people and one of them is a servant of the Crown. If he is wronged by one person he may get his pension rights and damages. If he is wronged by two or more people including a Crown servant, he may get only two-thirds, one half, one quarter, according to the proportion of blame—which again is very largely a matter of chance so far as he is concerned—which the servant of the Crown must endure. My belief is that this cannot be justified as a piece of law-making I do not see what the justification can be.

I would add, rather in support of what was said by the hon. Member for Oldham (Mr. Hale) just now, that it is not as a matter of fact true that a pension right necessarily forms any substitute for damages. There are matters which a pension right cannot take into account at all. Damage to a man's possessions at the time of the accident is not included. A convalescent holiday is not included. There are many things a court is bound to take into account in assessing damages which are not taken into account in assessing pension rights. I submit that it is a really absurd proposition that the question whether the man is entitled to damages alone or damages, plus pension, or part of damages, plus pension, depends upon the pure chance whether he happens to be injured by one person or two persons or the exact proportion of blame which those two people must bear as between themselves. In my submission, this is not a wise provision and ought not to be pressed.

I would like to say a word or two in support of the Amendment. It was a great mistake to put Clause 10 into the Bill, and I hope to take an opportunity of saying so shortly. It seems to me wholly unreasonable to put this Subsection into Clause 10, even if we want the Clause. The principle has been quite lucidly stated, but I would like to put it in my own way. It used not to be the law in this country that there could be any contribution between wrong-doers of any kind, and that if two people together committed a wrongful act, both of them or either of them were responsible to the person injured at the option of the person injured.

Then it was felt that that was not quite fair, and that between two people who did a wrong there might be varieties of responsibility and there was no reason in the world why they should not be compelled to bear the damage jointly to such proportion as a court of law might find. That was always between those who committed the wrongful act, and it was never held that that could in any circumstances prejudice the person who was injured by the wrongful act. The contribution between them was limited to themselves. The injured person was always entitled to recover his damages where he could. He was not in any way limited, or his action modified or qualified by the relationship between the person who did him the wrong and from whom he recovered damages. For the first time that principle is departed from, and in those circumstances what the Crown is seeking to do is to make the injured person in some way bear the injury when, without this, he would not have been responsible at all. In a Bill which has been introduced in order to abolish outworn prejudices and to extend the rights of the subject, it seems a pity that the general law should be cut down in a way which nobody thinks right in any other kind of action.

I do not wish to add anything on the merits, because I agree entirely with what was said by my hon. Friend the Member for Oxford (Mr. Hogg). I want only to raise two points of procedure. The Lord Advocate will be aware that if this Subsection stands, it will be necessary to re-introduce into Scottish procedure a method which was tried and rejected as being unsatisfactory, and why should this be? The other point of procedure is this: it is a complete novelty that there shall be power to bring in and make a party in a case in court somebody who admittedly has no interest in that case at all. This Subsection contemplates that the Attorney-General or the Lord Advocate shall be made a party if the Crown is sued, or that the soldier himself shall be made a party, when admittedly it does not matter to him who wins or what happens. The defendant may join the other person who has no interest whatever in the litigation. That is a complete novelty in the law of Scotland, and the fact that it is necessary to bring in that anomaly shows how ill-founded is the conception on which the whole Subsection is based.

The hon. Member for Oxford (Mr. Hogg) was good enough to write to me about his proposed Amendment, and although I am compelled to tell him that' we shall be unable to accept it, I would like him to know that it has been given by my noble Friend and myself the most careful thought and consideration. It was said by the hon. Members who have spoken that this Clause introduces some principle which is alien to our general law, but I must point out that it was supported by everyone, including a number of very eminent lawyers, who spoke to the Clause in another place. It was moved into the Bill by Lord Simonds and it was apparently regarded by those who spoke to the Clause there as being an act of elementary justice which would remove what would otherwise have been an unintended consequence from the general provisions of Clause 10 which would have formed a blemish on the Bill.

The purpose of the Subsection is to prevent hardship to private persons who, but for the provisions of Clause 10, would have had a right of contribution against the Crown or against the Crown servants. That right disappears under the Bill. It was thought, and it is still thought, that it would be unfair in circumstances such as these to leave the private driver, the private defendant, to meet the whole of the damages without having any right of contribution—

He has a right of contribution, but that does not affect the Crown. I am dealing with the position of the defendant, if my hon. Friend will listen. I am coming to the position of the plaintiff, but one has to deal with separate matters separately. So far as the defendant is concerned, it was thought unfair to leave him in the position of having to pay the whole of the damages without the right which he has now of contribution against the Crown or against the Crown servants. So far as the position of the plaintiff is concerned, he is a person who must always be, for this exclusion to apply at all, in the service of the Crown, on duty as a servant of the Crown at the time the accident occurred. He will, therefore, get his pension rights from the Crown in respect of the accident, and those rights, in addition to the damages which he may recover from the private wrongdoer, will prevent any real hardship arising. I am sorry, therefore, that we are not able to accept the Amendment.

3.15 p.m.

I am very much surprised at the answer given by the Attorney-General. I thought this was an enabling and extending Bill to extend the rights of private individuals, but into this Clause a limitation is introduced. As the Attorney-General has said, there are two persons concerned, the plaintiff in the action and the defendant in the action. Under the law as it now stands, a defendant who has been unsuccessful in his defence has the right of contribution against the joint tort feasor. Until recently he had to be prepared to pay the full damages. As the hon. Member for Oxford (Mr. Hogg) and the hon. Member for Nelson and Colne (Mr. S. Silverman) said, each of the tort feasors is responsible for the full amount, and only recently has the question of giving them the right of contribution among themselves been brought in.

"It would not be fair" says the Attorney-General, "for the civil defendant to be responsible for the full amount in a case where he cannot get his contribution from the Crown. Therefore, rather than do injustice to the defendant it is better that injustice should be done to the plaintiff, that is to the man injured, and deprive him of his rights and now he will only get a proportion of the contribution from the civil defendant, and he will have to rely for the rest on the pension he would get." If that is not cutting down the limitation, I do not know what is. I am not a bit impressed by the very learned judges who have been quoted. Here is a Bill intended to be an enabling Bill, but now it is suggested there should be a deliberate cutting down of the constitutional rights of private citizens. For they are private citizens even though they happen to be in uniform and on duty, they still remain private citizens. I cannot see what defence the Attorney-General can put forward to this Amendment.

Although time is pressing, I cannot let this Clause go without joining in the general protest from all sides of the Committee. I am not impressed because a number of learned law lords in another place think they are doing something which is fair. I think that if the King's Bench judges, with practical experience of working out this rule in courts of first instance, had been considering this matter, they would not have agreed with the rara avisin another place. Every judge of first instance values the Law Reform (Contribution Between Joint Tort Feasors) Act but also values the fact that the plaintiff himself is entitled to take his full damages from any of the tort feasors. A plaintiff is now so entitled to get full damages from either party, leaving the defendants to fight it out. This Clause might be all right if the percentages were always fifty-fifty. But in one case the judge may say that one of the defendants is only 5 per cent. liable, or even 1 per cent. liable. There may be a number of cases where the defendant is held to blame to the extent of 10 per cent. If this Clause becomes law the citizen with a right will be indulging in catch-as-catch-can. He may get his pension plus 10 per cent, or his pension plus 90 per cent, damages. That disposes of the argument of the Attorney-General. I say that this is cutting down the right of the plaintiff in a manner with which this Committee ought not to agree.

I understand that time presses. If I were to follow my convictions in this matter, I should press it to a Division, but I do not wish even the time of a Division to interfere with the progress of this excellent Bill. If my hon. Friends agree, I will not press the Amendment to a Division, but I ask the Attorney-General to take to his noble Friend the universal howl of execration with which this Subsection has been greeted in this Committee, and that it even be whispered to the other noble Lords that it has not met with approval in this place, and that perhaps it might be dropped at the next stage. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."

I said on Second Reading what I had to say about this Clause. In my view, which I am glad to think is shared in many parts of the Committee, it is a great pity that this Clause was ever brought into this Bill at all. There was not the slightest need for it; it does only injustice, and produces all sorts of complications that are totally unnecessary. It can work in no one's advantage, and I hope that before we part with the Bill altogether, there may still be time for second thoughts and the withdrawal of this Clause altogether.

I agree. Would the Attorney-General consider, with his noble Friend, whether it would not be better to take out Clause 10 altogether, and do whatever is necessary with regard to the matters therein mentioned by introducing them in a separate Bill?

I do not rise to join in the chorus but to express the hope that if this Clause is to be reconsidered, as I hope it will be, attention will be given to Subsection (4), which provides that a certificate by the Admiralty or a Secretary of State about a person being on duty may be produced. A certain amount was said about that on Second Reading, but I am still not satisfied that a conclusive certificate is necessary. It should be possible for a person who disputes what is said by the Department to be allowed to say so, and if the whole of the Clause is being put into the melting pot again, perhaps a little of the heat might be applied to Subsection (4).

May I briefly support the plea for the withdrawal or reconstruction of this Clause? If, in fact, it is withdrawn, I think it will be found in practice that the liability of which the Government are trying to rid themselves is so small as not to justify the inclusion of this particular Clause as it stands.

Question put, and agreed to.

Clause, as amended, ordered to stand part of the Bill.