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Report No. 85

3.36. Speeches in the House of Lords.-

It would be of interest to quote some of the speeches made in the Debates in the House of Lords on the Bill of 1934.1 Lord Danesfort said-

"The object of the Bill is to enable non-motoring users of the road, such as pedestrians and pedal cyclists, when they are injured on the roads by a motor vehicle, to obtain compensation, and in the same way for compensation to be obtained when a pedestrian is killed. My Bill proposes that this compensation should be obtainable without the necessity of proving negligence on the part of the person who caused the accident, provided-and this is a most important proviso-that the death or injury was not caused by the negligence of the person so killed or injured. If it is shown that the accident was caused by the negligence of the person killed or injured then, under the Bill, no claim for compensation arises.

1. Vol. 84, H.L. Debate, Cols. 543, 544, 584.

This is admittedly an alteration of the existing law, but I hope to show your Lordships that the alteration is both just and necessary. May I say a few words about the dangers of the roads today? The position is really an intolerable one. The injuries on the roads have reached a figure which imposes intolerable suffering on tens of thousands of pedestrians and their relatives, and the figures have stirred the conscience of the nation. Such being the appalling toll of the roads on pedestrians, may I shortly call your Lordships' attention to the difficulties under the existing law in the way of pedestrians-and in the term "pedestrians" I include pedal cyclists-obtaining compensation?

The first fundamental difficulty arises from this fact. The motorist is always insured; he is bound to be by Act of Parliament; the pedestrian is rarely if ever insured; and the result is that the pedestrian, at his own cost, has to fight powerful insurance companies, who in cases of death or serious disability, will raise all possible defences. I do not blame them for that. In minor cases I believe it is true that the insurance companies often behave generously enough, and pay compensation, though perhaps it may be inadequate, without bringing the injured person into Court, but in the more serious cases they feel bound in their own interest to fight them and to raise every possible legal defence that is open to them. Let us see what those legal defences are. The pedestrain goes into Court to claim compensation.

The first obstacle which he has to surmount is the duty which is thrown upon him of proving negligence on the part of the driver. That is no easy task. If the pedestrian is killed then, of course, the main witness in support of the claim is not available. If, on the other hand, the pedestrian is seriously injured, his recollection, no doubt, is confused and is not very perfect, and he has to try to get outside witnesses in support of the claim on the ground of negligence against the motorist. It is exceedingly difficult and expensive to get those outside witnesses, and it is not at all easy for a pedestrian who is fighting his own case to go to that expense. The result is that in many cases the pedestrian is compelled to take what compensation the insurance company chooses to give him rather than indulge in a terribly costly litigation which his resources are unable to meet.

I believe it is not too much to say that the dice are loaded against the pedestrian when he seeks compensation. But let me assume that the pedestrian has got over the first difficulty in the Law Courts and has successfully proved negligence on the part of the motorist. What happens then? It is open to the insurance company to say: 'True it is that the driver was negligent, but you were also negligent'. In others they raise what is called in law, as your Lordships know, the defence of contributory negligence. The claimant has to rebut that defence. If he succeeds in doing so, well and good. If he fails, his claim is very liable to be defeated in toto. I doubt if there are many branches of the law on which there has been more litigation, and more very costly litigation, than this question of contributory negligence.

The justification for this Bill does not rest solely on the sufferings and the helplessness of the victims. There is a broader basis of justification for the Bill. It is this. Parliament has altered the law of this country in order to enable the motorists to travel at speeds and under conditions which, without that legislation, would have been utterly impossible. The result of this change in the law has brought about appalling dangers to pedestrians. The highways, instead of being reasonably safe places for pedestrians, have become almost the most dangerous places in the country.

As compared with railways, of course, they are infinitely more dangerous. I need hardly remind your Lordships that a pedestrian has a Common Law right to use the roads: a Common Law right in common with all His Majesty's subjects, to use the roads in a reasonable manner. Now, however, if he uses the roads in a reasonable manner he gets killed. Is not the truth of the matter that a resolution has been effected in road traffic by legislation in favour of motorists? I ask your Lordships whether it is not reasonable that the law should be altered in favour of the pedestrian to the extent-I think the moderate extent-which I propose.

The principle of the alteration which I propose-namely, that the injured person should get compensation without having to prove negligence on the part of the driver-is no revolutionary proposal. It involves a principle which has already important legal and legislative analogies. As regards legislative analogies I need only refer to the Workmen's Compensation Act where the employer is bound by law to pay compensation to his workmen who are injured, although there is no negligence on the part of the employer, and the only exception is where the workmen has been guilty of serious and wilful misconduct. I will now refer very shortly to the provisions of the Bill itself. Clause 1 provides that:

"Where bodily injury is caused by or arises out of the use of a motor vehicle on a road, damages shall be recoverable in respect of such injury from the person using the motor vehicle or from any person causing or permitting him to use it unless the injury was caused by the negligence of the person so injured."

That is the exception which I think it is proper to make, and possibly a further exception might be made in Committee by introducing, as in foreign countries, the accident which arises under force majeure. Then the clause proceeds:

"Provided that this section shall not apply to bodily injury suffered by a person who at the time of the occurrence of the event out of which the bodily injury arose was using or being carried in or upon a motor vehicle."

The effect of that is that the Bill does not apply to an accident caused by one motorist to another. The reason for leaving out such a case is that it simplifies the Bill and, further, that where one motorist causes injury to another the case is essentially different from that in which a motorist causes injury to a pedestrain. Where one motorist causes injury to another both are insured, and an action for compensation is fought out by the insurance companies, and no difficulties exist of the extent of character which arise in the case of a pedestrian.

Clause 2 of the Bill provides:

"The liability imposed by this Act shall be a liability within the meaning of Part II of the Road Traffic Act, 1930."

The effect of that clause is that the motorist will have to insure against the liability imposed upon him by this Bill. No doubt, some increase of premium May have to be paid, but it ought not to be excessive. I have been told that it is not fair that the careful motorist should have to pay a premium because other motorists are reckless, but that is the existing law. There is no exemption from insurance in the case of the careful motorist. Every motorist, careful or not, has to insure, and properly so, and so it would be under this Bill.

Clause 3 is merely a definition clause, saying that

" 'motor vehicle' and 'road' in this Act have the same meaning as in the principal Act and the expression 'bodily injury' includes fatal injury."

Then, there is a saving clause as to other remedies:

"Except as expressly provided by this Act nothing in this Act contained shall be deemed to affect the rights of action or other remedies which any person would have had if this Act had not been passed."

That would preserve, for instance, rights under Lord Campbell's Act, where in certain cases the dependants of a person killed have a right of action against the person through whose misconduct the death arose."

Claims for Compensation under Chapter 8 of the Motor Vehicles Act, 1939 Back

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