23rd Parliament · 1st Session
The Senate met at 3 p.m.
– I have received advice that the President (Senator the Hon.. Sir Alister McMullin) is unable to attend the sittings of the Senate to-day. In accordance with Standing Order 29, the Chairman of Committees will take the chair as Deputy President.
The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid) thereupon took the chair, and read prayers.
Address-in-Reply: Presentation to the Governor-General.
The DEPUTY PRESIDENT. - The
President has ascertained that His Excellency the Governor-General will be pleased’ to- receive the Address-in-Reply to his Opening Speech at Government House at 4.30 p.m. to-morrow. He extends an invitation to all honorable senators to accompany him on the occasion of its presentation.
The DEPUTY PRESIDENT.- I have to inform the Senate that the President has received letters from the Leader of the Government in the Senate (Senator Spooner) appointing Senators McCallum, Vincent and Wood, and from the Leader of the Opposition in the Senate (Senator McKenna) appointing Senators Armstrong and Tangney, to be members of the Joint Committee on the Australian Capital Territory. The President has also received letters from the Prime Minister (Mr. Menzies) appointing Mr. Howse and Mr. Anderson, and from the Leader of the Opposition in the House of Representatives (Dr. Evatt) appointing Mr. Beazley and Mr. J. R. Fraser, to be members of the committee.
– T ask the Minister representing the Minister for Health: Are the children attending the Ogmore State School, Queensland, provided with free milk under
F.1726/59.- 5.- fl61 his department’s milk scheme? If not, will the Minister inform me when they will be so provided?
– To the best of my knowledge, every school child in Australia is entitled to receive free milk. I do not know where the Ogmore State School is located, but if the honorable senator will put his question on notice the Minister for Health will ascertain whether the children are receiving free milk, and will supply me with an answer for the honorable senator.
– 1 preface my question to the Minister for National Development by referring to a recent statement to the effect that the new TI power station, in the Snowy Mountains, will begin generating power next month. Could the Minister advise me of the following: The generating capacity of the TI station; the estimated, earning capacity of the station in one year; the estimated cost of erecting the Adaminaby Dam by day labour; and the final cost of adopting the contract system? If there has been a substantial saving as a result of the use of the contract system, will the Minister advise the State Premiers of this, so that they, too, may take advantage of the contract system, and effect thereby considerable savings in their works programmes?
– The TI station will come into operation over a period of some months, the situation being that portion will first be operated by run-of-the-river, before the tunnel connexion is completed. The station will come into operation by progressive stages. Present indications are that the first will commence in April and, depending on weather conditions and other factors, it may well be August or September before the station is fully operative. I could not give offhand the earning capacity of the 320,000-kilowatt plant. I have a figure in mind, but I do not think it would be wise to trust to my memory in replying to the question. The facts of the contract system in relation to the Adaminaby Dam are clear in my mind. This morning’s press contained a statement that I made about it. Under the original arrangement, the Commonwealth agreed that the State of New South. Wales should be- the contracting authority. The State of New South Wales put the work in hand under day labour conditions. It is essential that the completion of the various sections of the Snowy Mountains work shoud be synchronized; otherwise you would have a powerhouse without water power, or a water storage without a powerhouse to complete the system. During the course of the construction of the Adaminaby Dam grave doubts arose as to whether it would be finished in time under the day labour system, and the State Government of New South Wales agreed to call contracts for the work. At that stage the work had to be finished in four years in order to run to the schedule of the other works.
– You would not be making a political speech, would you?
– I am only stating facts. If the facts do not suit you I am sorry. The facts are that there was doubt whether the dam could be finished within four years. Tenders were called. The estimated cost of the work then was £6,000,000. The successful tenderer tendered for £4,000,000. The work was finished in two years instead of four years. The additional water that was gained as a result of the two years’ earlier completion was worth £3,000,000. So £2,000,000 was saved on the contract and £3,000,000 worth of power was obtained by substituting a contract for the day labour system.
– My question is directed to the Minister representing the Minister for Trade. Is it a fact that penalties may be imposed on firms which offer for sale import licences under the quota system? If so, has the Department of Trade any procedure for detecting such sales? Have penalties ever been imposed on any firms? If so, what firms were penalized?
– I am sorry to say that I do not know whether penalties are provided for those who traffic in import licences and I am not quite certain what disciplinary methods are available to the Department of Trade, but I do know that this matter is constantly occupying the attention of my colleague, the Minister for Trade. His invariable reply to those who complain is: “ Please tell me the name of the firm and the details of the transaction of which you complain. I shall turn all the resources of the department on to proving or disproving the allegation, because this is a procedure of which we thoroughly disapprove and which we are determined to obviate wherever we can.”
– I desire to ask the Minister for National Development a question. The Minister will recall that recently I asked him whether he would ask the Australian Atomic Energy Commission whether it would consider the claims of the University of Tasmania in respect of grants to enable the university to carry out research contracts into certain aspects of the peaceful uses of atomic energy. Has he been able to find out the commission’s attitude to this request?
– My recollection is that the honorable senator’s question related to the University of Tasmania. As he requested, I made inquiries. I learned from the Australian Atomic Energy Commission that in October, I think, of last year it circularized all Australian universities asking them to bring forward any proposals for research into the peaceful uses of atomic energy which they thought they could encompass with their own scientific resources if suitably supported financially by the commission. My inquiries revealed that the University of Tasmania replied to the effect that it had no such proposals which it desired to advance. I found that at an earlier period the commission did financially support a research project at Hobart to the extent of £4,000. So I think the answer establishes that the Atomic Energy Commission recognizes the University of Tasmania, has supported it and given it work to do, and gave it an opportunity, in common with all other universities, to participate in the existing programme.
– I ask the Minister representing the Minister for Primary Industry whether his attention has been directed to the following statement which has been attributed to the deputy secretary of the General Agreement on Tariffs and Trade, Mr. Jean Royer, who is attending the Broadbeach conference -
In the past we have tried to convince the Australian Government of the wisdom of an agreement on wool, but have never mer with a sympathetic response.
Can the Minister inform the Senate whether any organization not associated with the Australian wool-growing industry has ever made firm proposals for a wool plan? Has the industry, in the past, declared itself by way of ballot on a stabilization plan? Will the Government meet grower organizations if and when they seek a conference to discuss a stabilization plan?
– I have not seen the newspaper report to which the honorable senator refers, nor do I know exactly who Mr. Jean Royer is. However, 1 think 1 can say with certainty that J have no recollection of any organization approaching the Australian Government with firm proposals for a wool plan. I have a recollection, though, that some years ago the woolgrowers were approached by the Australian Government, that a ballot was held, but that the growers declared themselves against a stabilization plan and in favour of an auction system.
The third part of the honorable senator’s question related to whether the Government would meet wool-growers’ organizations if and when they sought a conference to discuss a stabilization plan. I should say that that part of the question relates to a matter of policy and in any case must be answered by the Minister directly responsible. But if we can draw lessons from the past, I should say that I know of no occasion when this Government has not met, not only woolgrower, but also other primary producer organizations, to discuss matters which affected them and has not left the solution of various problems, as far as possible, in the hands of the producers responsible.
– I wish to ask the Minister for the Navy a few questions. Now that he has settled down in his new job, possibly he will be able to answer them. Is there any truth in the oftexpressed press statement that the Navy portfolio is only a part-time job? Whether this is so or not. will the Minister give the Senate, in due course, a full and complete statement concerning the Navy, including reference to its strength or its weakness in relation to the navies of other small nations of the world? What are the chances of keeping our sea lanes open in the event of war? Finally, does our utter weakness in civil defence mean that the Government has decided that there is no danger of atomic warfare in the near future?
– Mr. Deputy President, I think that probably if 1 were to take a point of order I could have that question ruled out of order, but since I do not seek to do so, 1 shall be happy to give the sort of answer that I think it deserves. The answer to the first part of the question is that, as far as 1 am concerned, so far I have not found the portfolio a part-time job. But that, I should say, would depend entirely on the way in which it was approached, as with any other job. Senator Brown, as a former President of the Senate, would know that only too well.
In reply to the second part of the question, I shall be happy on the appropriate occasion, which I should say would be a discussion of the Estimates, to answer any questions as to the strength of the Royal Australian Navy relative to other small navies or, indeed, relative to any other navy. The chances of keeping the sea lanes open in the event of war would depend entirely on the sort of war and on whether we were in it completely by ourselves; but we certainly have equipment designed for and capable of keeping the sea lanes open. The matter of civil defence does not fall within the jurisdiction of my department.
– Is the Leader of the Government in the Senate aware that a very important conference was held recently in Canberra, at which the State Premiers met representatives of the Commonwealth Government to discuss in detail the matter of Commonwealth-State financial arrangements? Was the Minister present at those discussions? If he was not present, did he read the minutes of the discussions in relation to that important matter? Did he note the very vigorous statement by Mr. A. R. G. Hawke, the Premier of Western Australia, regarding the need to continue the excellent rate of development that is taking place in Australia and the necessity for the Commonwealth to assume its share of responsibility for that development? Will the Government give the Senate, which is the States’ House of the Commonwealth Parliament, early advice of any intention to disturb the present basis of Commonwealth-State financial arrangements, since such a disturbance might affect detrimentally the development of the claimant States? If it is possible at this stage to state the attitude of the Commonwealth Government towards uniform taxation, would the Minister state what that attitude is?
– That is not an easy question to answer. I was present at the discussions from time to time; I was not there the whole of the time. I have read a portion of the transcript, not all of it. I was present when the Western Australian Premier developed his views about the existing arrangements, and I quite clearly remember that he was very vigorously opposed to the cessation of the uniform taxation system.
As to what might be the position in the future, I beg leave to refrain from giving an answer. It is a very big question. I do not think I should do any more than say that the conference terminated upon a basis that the States were to advance to the Commonwealth Government proposals that they thought to be appropriate, and the Commonwealth said that it would afford another opportunity to discuss the position in detail - I think, speaking from memory - before the next meeting of the Australian Loan Council or Premiers’ Conference. The Commonwealth’s attitute at the conference was: Here is the legislation. Here is the uniform taxation arrangement. The States have claimed that they would like to have their taxing rights back. We again give them the opportunity that we have given them in the past to aim at a definite result they want. They had the opportunity, and the Commonwealth awaits with interest the proposals to come from the States upon it.
– I respectfully ask the Minister not to evade the point of the question. Will the Senate have an opportunity to discuss the matter?
The DEPUTY PRESIDENT.- Order!
– I will answer that interjection, if I may. I had no intention of evading the question. The honorable senator’s question was a long one, and it is difficult to cover all the points he has raised. I cannot give the assurance for which he asks, except to say that whatever has to be done will be done in legislation which will come before the Senate in the same way as all other legislation comes before it. As matters stand, at present, the Commonwealth is awaiting proposals from the States. The Commonwealth has nothing at the moment that can be put on the table of the Senate for discussion. I have no doubt that decisions will be made when we get the views of the States, and those decisions will need to be ratified by this Parliament.
– I preface a question to the Minister for Shipping and Transport by saying that I understand the Government intends to alter the present basis of distribution of Commonwealth aid roads grants to the States, and that future grants will be made on the basis of onethird as to population, one-third as to motor car registrations and one-third as to area. Will the Minister inform the Senate whether the Government proposes to adhere rigidly to allocations worked out under the new formula, or does it intend to give supplementary grants to any States? If supplementary grants are given, to what States are they to be made and what will be the amounts of those grants?
– When the Government discussed this matter with the States it intended to evolve a scheme which would be, in the light of circumstances that over past years have obtruded themselves into the roads situation, fair and equitable to every State. The best endeavours of the Commonwealth produced a formula which I might say found general acceptance among the States. It was along the lines suggested by Senator Wood, taking into account three factors - area, population and vehicle population. The amount to be distributed was vastly increased, and as the Senate will be aware, even taking that vast increase into account it was found that one State, and one State only, to wit Western Australia, would, if the formula were applied rigidly, commence the new scheme in the next financial year with a figure somewhat less than it would have received under the old formula. I repeat - Western Australia is the only State so affected. To obviate any possible disturbance that could be created in Western Australia’s finances, the Government decided in this one case to make a special grant to ensure that that State would participate in the new scheme on the basis that it would receive, in the first year of the operation of the scheme, not less than it did during the last year of the old scheme. I repeat, also, that every other State enters into the new scheme with a grant in excess - in some cases very much so - of what would have been received under the old scheme.
Senator Wood might be further interested to know that in order to meet the special circumstances of his own State of Queensland, and to meet the one point which was stressed with any vigour by the Premier of that State, the advance for rural roads in Queensland will be varied from 40 per cent, to 30 per cent. I repeat - that arrangement was made to meet the special request, in fact the only request, advanced with any vigour by the Premier of his State.
– I ask the Minister representing the Minister for External Affairs whether it is a fact that an important statement was made to-day by his colleague regarding the resumption of full diplomatic relations with Russia. If so, when will the Senate receive a report on this important matter? In view of the significance of the day, would it not be appropriate for the Minister to announce also that full diplomatic relations will be established with the Republic of Ireland by the appointment of an Australian ambassador to that country?
– The honorable senator is ahead of me. I do not know of any important statement having been made to-day. I read in the press that a statement was to be made; if it has been made, I have not caught up with it. As to the second portion of the question, the honorable senator should not raise such a contentious issue on a day such as to-day.
– Has the attention of the Minister for the Navy been directed to the recent press statement to the effect that Gannet naval aircraft being used by the Royal Australian Navy had a structural weakness in the tail which caused senior naval pilots to regard them as unsafe? Does he know the origin of the report that naval pilots of H.M.A.S. “ Melbourne “ requested that all Gannet aircraft should be X-rayed to ascertain the cause of the trouble, and had refused to fly them without written instructions? In view of the importance of this matter to members of the service, and also to the peace of mind of relatives of serving personnel, will the Minister inform the Senate what inquiries, if any, he has made into this report?
– The original doubt on the airworthiness of Gannet aircraft arose when a Gannet crashed in Sydney on 30th January last. I established a board of inquiry to investigate this matter and, in fact, examined the part of the aircraft which the board thought had caused the accident. According to the report of the board, the accident was caused as a result of a circlip coming undone and, through a chain of events, rendering the rudder uncontrollable. All Gannet aircraft were at once thoroughly examined in that particular part, and such examination is now a routine maintenance matter.
I saw the report in a Sunday newspaper to the effect that further doubts had arisen; that some pilots had claimed that the aircraft were not airworthy; that they had approached the captain of H.M.A.S. “ Melbourne “ requesting written orders to fly them, and that they had asked that the aircraft should be X-rayed. That same day, Sunday, I got in touch with H.M.A.S. “ Melbourne “, which was then at Fremantle, and spoke to the captain of H.M.A.S. “Albatross”, which is the Fleet Air Arm training station at Nowra. I have received a reply from “ Melbourne “ that the report is completely untrue, that no pilots have ever expressed any doubt as to the airworthiness of the Gannet, that no pilots have ever approached the captain of “ Melbourne “ or any other officer on “ Melbourne “ asking for written orders to fly Gannets, and that no pilots have ever requested that the Gannet should be X-rayed.
The captain of “ Albatross “ told me that the same situation prevails on that station. As far as the Navy is concerned, these aircraft are airworthy. I believe their past performance has shown, and their present performance is showing that they are airworthy. I can only regret that a statement of that kind, which the newspaper that published it admitted was based on rumour, should be so widely published and possibly cause concern to the relatives of fleet air arm pilots.
– My question to the Minister for National Development concerns the Snowy Mountains catchment area. Is the Minister satisfied that the Snowy Mountains Hydro-Electric Authority is doing everything possible to preserve and protect that portion of the catchment area which is being damaged by the authority in the course of its work? Is the authority engaged in repairing damage caused by other means? What amount is the authority spending annually on catchment protection? Are the New South Wales and Victorian governments doing anything to repair or restore those areas of the catchment for which they are responsible? Is there any evidence of siltation in water storages now completed? Is the Minister considering setting up in the near future a comprehensive authority of all interested parties so that they can collectively guard this national asset?
– The honorable senator’s questions cover a wide field in respect of what is a very important matter. There has been some improvement in the arrangements relating to the catchment area, but I think it would be more appropriate if I were to speak to the commissioner and pet from him a statement setting out the present arrangements. I can then let the Senate have that statement. Therefore 1 shall treat the question as being on notice and pst a statement so that we shall all be well informed on the matter.
– I preface a question to the Minister for Shipping and Transport by saying that I noticed that it was stated at the recent Premiers’ Conference that £250.000,000 is to be given bv the Commonwealth to the States over the next five years for road purposes. Is the amount of £250,000,000 to be distributed over the next five years greater or smaller than the amount that could be expected by the States over the same period if the present formula were continued?
– The £250,000,000 represents the remarkable increase of something like £100,000,000 over the five-year period.
asked the M:n:ster representing the Minister for Immigration, upon notice -
– The Minister for Immigration has supplied the following answers: -
asked the Minister representing the Minister for Primary Industry, upon notice -
– The Minister for Primary Industry has supplied the following answers: -
asked the Minister representing the Postmaster-General, upon notice -
Postmaster-General has supplied the following answer: -
Audience measurement surveys carried out before and after the introduction of television indicate that there has been a decline in audience listening to evening parliamentary broadcasts but that the afternoon broadcast audience has been unaffected.
asked the Minister representing the Postmaster-General, upon notice -
Postmaster-General has supplied the following answers: -
asked the Minister representing the Postmaster-General, upon notice -
– My colleague, the Postmaster-General, has supplied the following answers: -
Motion (by Senator McKenna) - by leave - agreed to -
That leave of absence for one month be granted to Senator Toohey on account of ill health.
– by leave - I am sure that the Senate will be pleased to learn that as a result of negotiations which have taken place over a period of weeks in Ankara an air transport agreement between Australia and Turkey is to be signed in Ankara to-morrow, the 18th March. Mr. R. F. Felgenhaur, Assistant Director of International Relations in the Department of Civil Aviation, who led the Australian delegation at the negotiations, will sign the agreement with the authority of the Australian Government.
Under this agreement, which will come into force when it has been, ratified by the Turkish Government, the Australian airline is granted a route via intermediate points to Ankara and/ or Istanbul and to points beyond, while the Turkish airline is granted a route from Turkey via intermediate points to Darwin and/ or Sydney. As a result of the agreement the Australian airline, in addition to having the right to overfly Turkish territory and to make stops in Turkey for technical reasons, will also have the right to pick up and set down international traffic at the Turkish cities mentioned. Reciprocal rights in Australia may be exercised by the Turkish airline.
I think I should make it clear to the Senate that Australia’s overseas airline, Qantas, has been operating through Istanbul on its Kangaroo services to London since November, 1956. This has been possible because of provisional authority given by the kind permission of the Turkish Government when Qantas had to divert its services away from Middle East centres at short notice at that time. I would like to say to the Senate that the Government appreciated very much the ready and prompt permission sought necessarily at very short notice which the Turkish Government gave for the Qantas London services to operate through Istanbul on that occasion. The air agreement which has now been concluded confirms, on a permanent basis, the provisional authority which Qantas has enjoyed for its air service operations through Turkey and is another link in the chain or air agreements which have been negotiated with various countries in the world to provide for the development of the world-wide operations of Qantas, which now flies more than 59,000 miles on its international air routes.
Debate resumed from 1 1th March (vide page 344), on motion by Senator Paltridge -
That the bill be now read a second time.
Upon which Senator McKenna had moved by way of amendment -
Leave out all words after “ That “, insert “ the Bill be withdrawn and redrafted to incorporate, in relation to Australian domestic air services within Commonwealh competence, the general principle of unlimited liability at law for negligence on the part of airline operators in respect of passengers’ cargo and baggage”.
Senator McCALLUM (New South Wales) 13.50]. - 1 have listened very carefully to the speeches that have preceded mine, and 1 am greatly indebted to the Minister for Civil Aviation (Senator Paltridge) and the Leader of the Opposition (Senator McKenna) for their very illuminating speeches. I think the speech by the Leader of the Opposition was one of the best that I have heard even from him. It enabled me to follow this bill very carefully. I support the bill with a good deal of enthusiasm because I, like many of you, have had some experience of the sort of things that happen with regard to compensation. The merit of the bill seems to me to be that it puts in clear language - and in what I hope will be the final language - the obligations of the carriers.
T have a very vivid memory of travelling on a coastal ship some 30 years ago. I had a lot of leisure on that ship and I was able to read all that I had signed away. I found that I had signed away all responsibility on the part of the shipping company for anything that could happen to me, including injury due to the negligence by the servants of the company or due even to wilful acts performed by those servants. I could not regard that as a contract. I discussed it with some of my legal friends, but they said, “ Of course, it is a free contract. You did not have to take that ticket; you could have walked to Grafton, you could have hired a car, or you could even have gone by train.” I was a young man with a family at that time. My employer, the State of New South Wales, said I had to travel by steamer, so I had no option at all, unless I wanted to waste a good deal of money. 1 signed away, apparently, all my rights.
I am very grateful to the people with sound legal knowledge who have already discussed this bill. I will listen with great attention to any who may discuss it hereafter, but it seems to me that we are putting in clear language a certain obligation on the carrying companies. From the point of view of the ordinary traveller, that is much more important for him than any vague rights that he may appear to have at common law. When I mention common law, I mention it with respect. 1 do not want anyone to get the opinion that I believe that judge-made law, as it is sometimes called, is a bad thing. As a matter of fact, in the development of the many freedoms that we have in this country, the judges have played probably a bigger part than parliament. Certainly they have played as big a part. I happen to know something about the history of the 17th century. We rightly honour Pym, Hampden and those other men who fought against the Crown then. Alongside of them, I think we should place the great Mr. Justice Coke, who fought the Crown and laid down many sound principles, some of which are simple principles of common law, and some of which legislatures have adopted.
Certainty is a very good thing in law if you can get it. I for one would go for tha certainty that this bill appears to provide rather than for some possible chance in winning an action. That is why I am not only supporting the bill, but opposing the amendment, although I admit that the Leader of the Opposition put forward some plausible arguments for the amendment.
I am going to quote two decisions of judges who dealt with the responsibility of servants. I shall do that for the purpose of showing how the common law, proceeding from acknowledged principles, may come to quite opposite conclusions. I am not quoting from a technical law book, because
I am not a lawyer. Some 30 years ago I found an excellent and most amusing book, which 1 have re-read. It was written by Mr. H. R. Curlewis, Bachelor of Arts and Bachelor of Laws. This gentleman was later a very distinguished judge in New South Wales. His son, Adrian Curlewis, is well known as quite a good judge, I believe, but is much better known because of his association with the Surf Life Saving Association of Australia. Mr. Curlewis, the author of this book, was more distinguished, perhaps, because of the fact that he happened to be the husband of that very distinguished Australian writer, Ethel Turner. What I am about to read is not necessarily the opinion of a judge, because when Mr. Curlewis wrote this book he was, I believe, a briefless barrister. The point I am dealing with is the responsibility for acts of servants, which, as honorable senators know, comes within the scope of the bill now before us.
The first case referred to by Mr. Curlewis was an American case “ Croaker v. the Chicago and North Western Railway Company “. It has some amusing aspects, but I am not quoting it for that reason. Perhaps my reading of it will relieve the tedium of what otherwise would be a very dreary speech, but I think a very important principle is embodied in it. Miss Croaker, who was aged 20 years, took passage on a train travelling to Baraboo in Wisconsin. That sounds like an Australian town, but it is not. The relevant passage in Mr. Curlewis’s book reads -
She was the only passenger, an:! the gallant young conductor sat down beside her.
I point out that a conductor on an American train is equivalent to a guard on our trains. I now quote Miss Croaker’s evidence -
He said. “ I suppose you are married like all the rest of iiic school marms? “ I said, “ No, I am nol.” Then he sat up nearer to me and put his hand in my muff-
For those who do not know, a muff is an article of feminine attire, cylindrical in shape and, I believe, made of fur- and said, “ There is room for two hands in this muff, ain’t there? “
It will be noted that the conductor was very ungrammatical, and that probably was one of the reasons why she did not like him. The evidence continues -
I said, “ No, Sir, there is not for yours,” and jerked my muff away. He then said, “ My hand is pretty dirty, ain’t it? “ I told him to wash them, water was plenty … He then said, “ What makes you look so cross? “ I did not answer him.
Note that carefully. Her evidence continues -
He threw his arms round me and kissed me. I struggled and cried, “ Let me go.” After he had kissed me five or six times he said, “ Look me in the eye and tell me if you are mad.” I said, “ Yes, 1 am mad.”
Perhaps I may explain that “ mad “ is an Americanism for “ angry “. Miss Croaker sued the railway company, which put up a very ingenious defence. It said that a master was liable for the acts of his servants, but only for such acts of his servants as came within the scope of the servant’s duties, and that kissing passengers did not come within that scope. But what I direct the attention of the Senate to is the opinion of the learned Chief Justice, which I certainly cannot fault, be it legally right or not. It seems to be common sense.
The appeal was heard by the appeal court, I presume, of Wisconsin. The Chief Justice was a gentleman named Ryan, and I do not think anybody by that name was ever Chief Justice of the Supreme Court of America. But the Chief Justice of the appeal court said -
If one hire out a dog to guard sheep against wolves, and the dog sleeps while a wolf makes away with a sheep (the appellants admit that), the owner is liable; but if the dog play wolf and devour the sheep himself (they contend that) the owner is not liable. The bare statement of the proposition seems a reductio ad absurdum. The carrier’s contract is to protect the passengers against all the world, the appellants contend that it was to protect the respondent against all the world except the conductor, whom it appointed to protect her, reserving to the shepherd’s dog a right to worry the sheep. No subtleties in the books could lead to so vicious an absurdity.
I must confess that 1 agree with Chief Justice Ryan.
But Mr. Curlewis said that, if the case had been decided in England, it probably would have been decided otherwise. He referred to the case “ Williams v. Jones “ and said -
Williams allowed Jones to use a shed. Jones employed a carpenter, and the carpenter worked in the shed. While working, he lit his pipe, and thereby set fire to some shavings, and the shed was burned down. Williams sued Jones for the carpenter’s carelessness.
Mr. Justice Keating gave this decision ;
That a master is liable for the negligence of his servant in the course of his employment admits of no doubt; and if it could be said that the act of lighting a pipe of tobacco, for the purpose of smoking it, was in any way connected with the making of the signboard which alone the carpenter was employed by the defendant to do, there would be no difficulty in saying the master would be liable. But it was not necessary that Davis should smoke in order to make the signboard, nor was the act of lighting the pipe in any way for the benefit of the master, or in furtherance of the object of his employment.
So it was found that there was no liability, and the case was lost. That is why, Mr. Deputy President, I feel it is much better for the travelling public to know that they have something set down in the act which fixes responsibility without the necessity to prove negligence or anything else. I regard that as being the very great merit of the bill.
There is one other merit, but it is a matter on which I still have a good deal to learn. The bill is an attempt to get a clearly defined right for passengers travelling in any country over which a plane may fly. Whether it is completely successful or not, it is a magnificent piece of draftsmanship. I have looked at the schedule; honorable senators should read it to see what it means. We are dealing with a situation in which aeroplanes ultimately will fly over 26, or perhaps more, countries - certainly, a large number of countries - having different systems of law, different languages, and different habits and tendencies in the law courts. We can just imagine the difficulties confronting any one trying to go to a foreign law court to prove a case for damages. The bill attempts - I hope successfully - to get away from all those difficulties and to give a person a clearly defined right to a certain amount of compensation in the event of injury or, in the event of his death, to ‘his heirs. That is of the utmost importance, because air travel is now commonplace. We enter an aeroplane and come here from one of the other cities just as easily as we would board a tram, a bus or a motor car. We feel just as safe in an aeroplane as we do in any of those other vehicles. I believe that the world must somehow get a common system of law for all these matters. How to do that without international government is a great problem. But if this Government and all other governments that have signed the two agreements introduce legislation like this to define clearly what a person is entitled to in case of accident, they will have done a very good job.
We need technical advice from trained lawyers to help us to understand the measure, but to the extent that I understand it, it is a very good bill. Indeed, it is cae of the best that the Government has introduced. I congratulate the Minister for Civil Aviation, who introduced it, and who has shown, as he always does, a complete understanding of everything within it.
.- In approaching this bill, Mr. Acting Deputy President, the Senate has an opportunity to perform really constructive work. The occasion presents us with an opportunity to formulate the law with regard to an important aspect of the rights of the ordinary citizen, namely, his right to compensation for damage suffered as a passenger in a commercial aircraft. The bill concerns itself with that situation in respect of both international and interstate flights. I propose to confine myself at this stage to the subject of liability for injury to passengers. I shall shed the complications which would necessarily be introduced if one were to attempt, in the same speech, to develop the situation with regard to cargo or baggage.
Aviation has developed to such a degree that it is now a routine form of commercial transport. In respect to other departments of the law, we have had experience in relation to the rights of passengers and the obligations of carriers. First of all, one might look at the situation in relation to a passenger being carried by sea transport. It is a long time since the legislature introduced into the conditions governing carriage of passengers by sea the idea of limitation of liability. According to the reading I have done, that idea was introduced in 1733. As one of the celebrated jurists in the field of maritime law has said, it was introduced, in derogation of the natural justice that belongs to a passenger, for the political reason of furthering the policy of the day to encourage shipping. Anybody who knows the circumstances of England in 1733 and in the centuries that followed, will realize that that policy demanded considerable attention.
The passage of time, of course, brought about a different attitude to the liabilities of capital and the entitlement of the individual citizen in relation to his ordinary civil rights. Nevertheless, I am not here to quarrel with the doctrine of limited liability for the carrier at sea. It has been maintained, and is now reproduced in the latest Merchant Shipping Act of England. If there is loss of life or injury aboard ship, the owner of the ship can limit his total liability by multiplying the tonnage of his vessel by £X, whatever that amount may be. I rather think that the legislature might have a look at this matter to see whether it has been adjusted to the changing values of our times. The passenger is limited to a ceiling, fixed amount, according to tonnage. The important thing, Sir, is that that limitation of liability was conceded to the shipowner only where the damage occurred without his fault or privity.
Reference has been made to rail transport. In the brief time that I have had to consider this matter, and because of my other duties, I have not been able to bring to mind any legislation in the Old Country that limited the liability of railway companies in respect of rail passengers. If other honorable senators have information to the contrary, I shall be most obliged if they will refer me to it. My memory is that there is no such limitation. We remember that the rail transport industry was developed during the last, century by private entrepreneurs who obtained concessions from Parliament to build railways. They assumed the obligation to carry. We need to remind ourselves that it was due to the exacting scrutiny of British juries that those railway companies were kept to a very high standard of care. A British jury was not easily convinced that, given the appropriate standard of care, a passenger or a property owner could be the victim of damage at’ the instance of a railway company. When we transplanted railways to Australia and made them public undertakings operated at the public expense, we then, rightly or wrongly, due to the conservative outlook of the time or the restricted public moneys available to our colonial governments, incorporated in most of the Australian legislation a provision that the railway was not liable to any passenger for death or injury in excess of £2,000. That limitation of liability has stood, to the shame of many State legislatures, throughout all the changes that have occurred in the value of money.
We come to road transport, Mr. Acting Deputy President, and here again my information is imperfect. Very late in the era of road transport the legislatures passed legislation, not to limit liability, but to secure adequate compensation for injured passengers. In my own State, the legislation is as recent as 1937. There, a public carrier of passengers is bound to insure against third party risk so as to cover,, in the case of public transport, his own passengers.
When we approach the problem of air transport we find a statute that was placed on the statute-book in 1935. Its format is as primitive as was the stage of development that the carriage of passengers by air had reached at that time. The statute is a mere shell. The bill just, took the convention of 1-929’ and said, “ Drag it through the Parliament by the hair of its head and let it speak”. But since that time civil aviation has developed’ enormously. Civil aviation has provided one of the media that have contracted: the world, and has gained a reputation for service and efficiency in this country, for which- we are all eternally grateful and indeed proud.
But never let us forget that the fundamental considerations that go to produce such standards of skill and care are our responsibilities. We must be very jealous in this bill that we provide not one loophole whereby those responsible for evolving this industry can slacken in standards without liability. We would be recreant to our public trust. But it is just as important for the individual victim of an air disaster that we, the law-makers, now give this our closest attention to see that as far as we can mould the legislation, justice will be done as between the air carrier and his passenger in the occasion when the widow, the children, and other people complain to the courts and have to recover compensation.
There are many of you who oftentimes can say that the products of the law courts defy understanding. We have listened to a speech from my friend Senator McCallum referring to different law decisions. We never want to forget that the court is an instrument whereby justice is given according to law, and it is our superior privilege and responsibility to mould the law so as to ensure that the court, on the proper occasion, will be able, consistent with the law, to do justice. If this bill passes in its present form, it is a matter of very grave doubt as to whether or not some of its provisions will require a court to deny justice in cases which we can foresee both in the individual instance and in the particular class of cases.
I do not think that we should take the 1935 act as anything like a precedent. We have now the first real opportunity to approach this problem on a basis of principle, in the light of some real experience of this industry as it has developed. Therefore, I wish to turn, for the sake of clarity, first, to the international sphere, and later I shall deal with the proposals in this bill on the basis of their interstate application.
As I understand the position, before the Warsaw Pact of 1929, in the international sphere an air carrier was liable to his passenger only for negligence or, in the more ordinary term, carelessness, not only of himself but also of his servants and agents. It was for the plaintiff to prove that the carrier or those servants or agents had been guilty of some want of care, and once that liability was proved the plaintiff had a right to recover the full damage that he or she suffered without limit. It is a common experience to-day for the most modest family who loses a bread-winner, or whose bread-winner is permanently incapacitated, to recover £15,000, £20,000 or thereabouts, as proper compensation for the loss. So, on proof of negligence you had a right to unlimited recovery; but as against that, carriers adopted a practice, which was quite general, of inserting in the ticket a condition exempting them from that liability and if, as Senator McCallum said, you accepted a ticket with that condition in it - it is in some of the commercial airways carriers’ tickets in Australia - you contracted yourself out of the right of recovery for carelessness.
The third thing about the position as it was before the Warsaw agreement is this: It was always possible for the carrier to insure himself against liability to his passenger; and indeed, I think such procedure much more practicable than were suggestions, somewhat unreal, that I have heard in this debate to the effect that the ordinary traveller might take out an individual insurance by way of supplement if he had a sufficiently morose outlook as he boarded the plane to think he had better get comfort from an insurance company. Then the Warsaw Convention was passed, and it bound the various signatories as States, so that each State would produce laws in respect of its own country and the provisions of that pact became applicable within those countries. I have no experience as to that, matter. L do not pretend to have any real knowledge either, but I hope honorable senators on. both sides of the chamber will supply those deficiencies, because my conception is that where you have a convention of some 46 countries you are likely to get a level of compensation that represents the achievements of the least common denominator and not that level of compensation which it would be the pride of Australia to define for the purpose of its airways responsibilities when our aircraft are travelling internationally, or its citizens’ rights when persons are travelling on journeys in places over which our Parliament has jurisdiction.
If that be the true nature of the Warsaw Convention, let us look at it and see in what way it altered the previous position. First of all, it substituted for the right to recover compensation on proof of negligence a right to recover compensation for any accidental injury whether caused through negligence or caused despite all the care in the world. It substituted the strict liability, with one or two exceptions, but as I understand the position it limited that right to something like one-half of £7,400.
I recognize that if the plaintiff is to be free of the obligation to prove negligence in relation to an air accident, many plaintiffs will be disadvantaged because numerous cases of air accident will arise in which the proof. of negligence will be difficult, if not, indeed, impossible. One honorable senator v/ho preceded me in the debate instanced the case of the “ Southern Cloud “. Other similar accidents occur to the mind. However, let us not assume that negligence is impossible to prove in every air disaster. I recall some fourteen years ago having flown from one Australian township, and when we were 400 feet in the air we learned that the chocks had not been removed from the tail assembly. We returned to the airport without delay. If a catastrophe had resulted in that case, I do not think any doubt could have existed as to negligence.
On a more recent occasion I boarded a Viscount aircraft at an airport in Tasmania, the engines were started, and the next thing we knew was that the nose of the aircraft was in a hangar, having rolled some 120 yards along the bitumen with its brakes completely inoperative. But for the grace of God who ensured that no inflammable material was in the path of the aircraft, honorable senators would not be having inflicted on them the pain of listening to me. Such cases show that negligence is capable of proof in relation to air disasters. Simply because strict liability is imposed for the benefit of those plaintiffs who cannot prove negligence, we should consider also not denying justice to those plaintiffs who suffer damage in excess of £7,400 where such damage has been caused by negligence.
Article 2’3 of the Warsaw Convention, which is the next provision material to this subject, prohibits any carrier from contracting out of the liability provided by the convention but not from contracting out of any liability. The article contains a provision prohibiting the carrier from introducing into his contract of carriage a clause whereby he contracts out of the strict liability limited to the figure of £7,400 as contained in this legislation. The Warsaw Convention relieved the carrier of liability in cases in which he or his servants had been negligent, but the revised pact - the Warsaw Convention plus the Hague Protocol - relieves the carrier of liability in excess of £7,400 except in four instances. Article 20 to which T refer is in these terms -
The carrier is not liable if he proves that he and his servants and agents have taken all necessary measures to avoid the damage.
I find difficulty in understanding the meaning of those words, and my difficulty arises from the fact that this Parliament chooses to give force of law to an English translation of a French text, thereby incorporating into our law one of thos; ambiguous expressions which, in English courts, give rise to indefiniteness of decision. Our law should produce clarity by using expressions which are cognate to our courts. What is meant when one says that the carrier has taken all necessary measures to avoid the damage? The M inister, in his second-reading speech, suggested that that defence is very narrow. I do not disagree with that view, but how does one prove thai one has taken all necessary measures to avoid the damage? If one has taken all measures which, in fact, were necessary to avoid the damage, I should have thought there would be no damage. But there it is! 1 have put the proposition in my own provoking way in search of enlightenment. The carrier also has a defence against the strict liability imposed by the proposed legislation if he proves that it was impossible for him or his servants to take the necessary measures to avoid the damage. Well, 1 only blink a mildewed eye in pity tha; the courts should be so befuddled with such obfuscations of language.
The second defence open to the carrier is a whole or partial exoneration of his liability. That position arises from Article 21 which states -
If the carrier proves that the damage was caused by or contributed to by the negligence of the injured person, the Court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from his liability.
I understand, from the speeches of honorable senators who have preceded me, that the intention of the article is that if there has been contributory negligence as we know it the carrier’s liability for £7,400 is to be removed or reduced. The bill before us contains provisions meeting requirements that the Warsaw Convention assumes exist in our Australian law which provides that the carrier enjoys the benefit of a reduction of liability or is absolved from liability entirely, according to the court’s view of what the passenger’s negligence justly and equitably should require the passenger to forgo, having regard to his responsibility for the damage. T think 1 am quoting the language of the bill correctly. So we have, in the first case, a defence if the carrier proves that he has taken all necessary measures to avoid the damage. In the second case, there is a partial or total defence if the passenger has been negligent.
The third case that confronts me lies in Article 25 of the Warsaw Convention. I should like honorable senators, if they would be so good, to follow this part of the speech with some concern because it is here where I am sorely troubled. The Warsaw Convention reads - the carrier shall not be entitled to avail himself of the provisions of this Convention which exclude or limit his liability, if the damage is caused by his wilful misconduct- “ Wilful misconduct “ are the important words, and they are of very great importance - or by such default on his part as, in accordance with the law of the Court seised of the case, is considered to be equivalent to wilful misconduct.
Paragraph 2 of that article provides- that wilful misconduct of the carrier’s servants or agents disentitles him from the right to limited liability equally with his own personal wilful misconduct.
If I understand the theme of this legislation aright, it is proposed, when the Hague Protocol comes into operation - as it will, if this bill is passed unaltered - to delete that provision making the carrier liable for negligence to an unlimited degree if he has been guilty of wilful misconduct, and to substitute Article XIII. of the Hague Convention, which says -
The limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that . . .
I omit the proviso. The unlimited liability which was imposed upon the carrier under the Warsaw Convention if he, his agents or servants, were guilty of wilful misconduct, disappears, and now he loses his limited liability and becomes exposed to unlimited liability if it is shown that the act was done with intent to cause damage. f heard observations on that matter from here last week, and I just mention them again to bring them to the minds of honorable senators. I refer, not necessarily to the particular damage that the plaintiff is complaining of, but to intent to cause damage. If some air carrier’s pilot were silly enough to try to graze a cat off a fowl-house roof, I should think that would be intent to cause damage.
– To the cat.
– Yes, to the cat, and not to the people whom he killed thereby. I am just instancing that. It has been suggested to me that that ground for unlimited liability really requires that the carrier or his pilot shall have been guilty of a criminal offence; and there are few cases that I can conceive of where he would not be within the criminal law if he brought himself within that condition, because I should think that to intend to cause damage by an aircraft - to which this applies - would be one of the things that make one criminally responsible under one or two sections of the criminal codes of the States.
So we will not be even concerned with that, but the point is that that criterion of unlimited liability has been substituted for the Warsaw Convention criterion of wilful misconduct. To guard against any misunderstanding, I hasten to mention the alternative case. If honorable senators will be good enough to read Article XIII. of the Hague Protocol, they will notice that the carrier also loses his limited liability and becomes liable for an unlimited amount if his act or omission, or the act or omission of his servants or agents is done recklessly and with knowledge that damage would probably result. The important word is “ recklessly “. That is something graver than mere negligence or carelessness - recklessness.
– Gross negligence.
– No, it does not say “ gross negligence “. It says “ recklessly “, and that in contra-distinction with the condition that it displaces in the Warsaw Convention - wilful misconduct.
In the international sphere, therefore, Article XIII. of the Hague Protocol as I understand it, will operate in substitution for Article 25 of the Warsaw Convention. Instead of having recourse to unlimited liability against a carrier who had been guilty of wilful misconduct, the plaintiff, to get unlimited liability, will have to prove that the carrier did the act with the intent to cause damage, or did it recklessly and with knowledge that damage would result.
My friend, Senator Vincent, suggested that we take the words “ gross negligence “ as a synonym of “ recklessly “. I do not dispute the propriety of his suggestion, but
I submit that recklessness is something much graver than ordinary carelessness. Honorable senators will notice that if the aircraft carrier has been guilty of ordinary carelessness he will still be entitled to limit his liability to £7,400 in respect of international carriage if this bill is passed, and if the Hague Protocol becomes operative.
– Does not that last provision give some sort of binding about that word “ recklessly “?
– It has nothing to do with it. It only applies the same criterion to the acts done by the servants and agents as if the carrier himself did them. It means that he can get the benefit of limited liability in all cases where he cannot prove that the act was not done with intent to cause damage, either by himself or his agents, or done recklessly, either by himself or his agents, with the knowledge that damage would result. But if it is ordinary carelessness he is still entitled to limit his liability. If it is anything less than recklessness, in the knowledge that damage would result, he is still entitled to limit his liability. If it is important, as I think it is, to maintain the standards in an industry where skill and care are such vital factors, it is a grave responsibility that the Parliament takes if it unscrews the standards so as to enable him to limit his liability notwithstanding ordinary carelessness. To go back to what I said in relation to shipping, under longstanding law, the shipowner can only limit his liability if he proves that an accident occurred without his fault or privity.
The fourth case in which he is deprived of limited liability arises under paragraph 2 of Article HI. of the original Warsaw pact. The paragraph requires that the carrier shall give a ticket to the passenger and then says, more specifically that, nevertheless, if the carrier accepts a passenger without having delivered a ticket to him he shall not be entitled to avail himself of the provisions of the convention which exclude or limit his liability.
– That provision has been replaced. It may be repeated in exact words, but the whole of the provision in the Warsaw Convention has been replaced. In the second schedule of the bill details of new Article III. are given.
New paragraph 2 of that article is the same, or very similar to what the honorable senator has read -
Nevertheless, if, with the consent of the carrier . . .
The wording is different.
– I am obliged to the honorable senator. Article III. as amended by the Hague Convention, reads - “… Nevertheless, if, with the consent of the carrier, the passenger embarks without a passenger ticket having been delivered, or if the ticket does not include the notice required by paragraph 1 (c) of this Article . . . which limits liability for death or personal injury and in respect of loss of or damage to baggage -
It may be that that conveys a meaning different from the one to which I have referred. If it does then I do not yet understand it. I think that my proposition still holds, and I submit it for debate and earnest consideration. As I understand the legislation - under the Warsaw pact or the pact as amended by the proceedings at the Hague - it amounts to this: If the ticket is not handed to a passenger the carrier cannot avail himself of the limitation of liability. That strikes me as a very odd circumstance. You entitle a passenger to unlimited compensation just because he has not received a ticket, yet in the case where he receives a ticket limitation of liability still protects the carrier if he is negligent, guilty of ordinary carelessness as distinct from carelessness that is an intention to cause damage, recklessness with knowledge that damage would probably result, or serious misconduct in the case of ordinary negligence. With great respect to those who framed the legislation, that seems to me to be an odd result. For myself, I could not rest without asking that it be completely justified before the bill passes.
So far I have spoken of the international situation without a consciousness that we are limited by the exigencies of time. Now I should like to address myself to the proposal in this bill with regard to the interstate situation. Here, we are not in a position where it is desirable, from the point of view of conformity, simply to adopt an international convention. I can see that it is not only easier, but for all parties concerned in the long run perhaps the most convenient way - if in some cases the unjust way - simply to adopt an international convention regarding carriage and say, “ Let that rule prevail as the law of Australia with respect to all international commercial air transport “. However, when we come to make law within the confines of our own Commonwealth as to passengers being carried in the course of commercial aviation, we have no such excuse for accepting defects - if the Senate thinks them defects - which may appear in the legislation.
Interstate transport is dealt with in Part IV. of the bill. I approach a consideration of it by reminding myself that, but for this legislation - I am ignoring the 1935 act, because I think that it was a very primitive performance and that we should make a determined effort to produce this legislation properly - the carrier would be liable only for negligence and. moreover, could insert a condition in relation to interstate carriage exempting himself from that liability. I hope that in committee there will be debate upon just how far such a condition would be invalid if it attempted to exonerate the carrier for criminal negligence. Tt is assumed in this legislation that such a condition, for that purpose, would be effective in law. I myself would not adopt that view. At any rate, he is liable only for injury due to negligence and he can, generally speaking, contract out. This could certainly improve that position in some respects. It substitutes, for the obligation of the plaintiff to prove negligence, a strict liability on the part of the carrier for accidental injury that has occurred without negligence.
We should not take to ourselves any celestial merit for substituting that more strict liability for the old common law conception of liability for negligence, because the common law was equal to imposing strict liability in the case of potentially great harm. I refer to the case of “ Rylands v. Fletcher “, and subsequent cases, which deal with negligence in regard to explosives and dangerous acids. A man who was in control of such potentially dangerous things could be sued if an accident happens. In practical effect, if he appeared before a good jury of yeomen from the countryside of
Australia, he was held to be liable. So in providing for this liability of a stricter character in relation to aviation, we have done no more than give statutory effect to that position in regard to this- highly dangerous medium of transport. I see the Minister shaking his head at the suggestion that this is a highly dangerous medium of transport. Due to the wonderful skill of the officers of his department, of the pilots and engineers, and of the other men responsible for civil aviation in Australia, it is not abnormally dangerous, but the potentiality is there. With one second’s aberration, with the taking of two glasses of drink, its good safety record could be blemished overnight. The potentiality of this industry for danger is terrific. Because of that, the common law would apply to this form of transport very high standards as to the care required.
I welcome the idea that plaintiffs should not have to prove negligence to recover some compensation, but, having said those few sweet words about clause 28 of the bill, I want to warn the Senate that, as I see the matter, by improper manipulation of the regulation-making power that strict liability could be very much modified. I trust that we shall debate this matter fully in committee, but I point out that clause 28 provides -
Subject to this Part, where this Part applies to the carriage of a passenger, the carrier is liable for damage sustained by reason of the death of the passenger or any personal injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
That strict liability is said to be “ subject to this Part”, Part IV. In Part IV. you find clause 31, which provides, in subclause (1.) -
Subject to the regulations relating to passenger tickets, the liability of the carrier under this Part in respect of each passenger, by reason of his injury or death, is limited to the sum of Seven thousand five hundred pounds or such higher sum as is specified in the contract of carriage.
If honorable senators will look at clause 40, they will see that those who drafted the bill, being units of the Executive, take power to themselves to make regulations relating to passenger tickets. If it is intended to issue a regulation providing that unless you have a ticket, liability is unlimited, that is one thing, but let it be demonstrated to the Senate later on that this bill will make it impossible to issue a regulation in relation to tickets which would provide that the compensation recoverable by a plaintiff should be limited to £X, whether it be a greater or a lesser sum than £7,500. The prescription of the limit of £7,500 on a strict liability basis is subject to regulations relating to passenger tickets.
The second thing about this measure in relation to interstate transport is that it prohibits contracting out. Clause 32 provides that any provision of an agreement tending to relieve the carrier of liability in accordance with this part shall be null and void. Those are good features, but, if I understand the bill aright, it is declared that the liability of £7,500 - it could be reduced by regulation, but let us take the bill at its face value - on this strict basis, without any proof of negligence, is the only remedy, and that that remedy is in substitution for another. Clause 36 that provides that the liability of a carrier under Part IV. in respect of personal injury suffered by a passenger, not being injury that has resulted in the death of the passenger, is in substitution for any liability of the carrier under any other law in respect of the injury. Why, as in intra-state air transport, in the case where a carrier has been negligent, should he not be liable to pay damages in excess of £7,500, to the full extent of the plaintiff’s injury? I think this has a vital bearing on public standards from the point of view of the industry. It will in many cases, not only in a few, do injustice to injured plaintiffs who could prove that their injury was caused by negligence. It may be a valid argument. My mind is not resolved on it, although I am very much disinclined to accept it at the moment. It may be valid to say that, if we give to plaintiffs who cannot prove negligence recovery up to £7,500, it is just to deprive plaintiffs who can prove negligence recovery in excess of that sum. I just leave the matter there, saying that I do not think I would be justified in accepting that position. 1 point out that those whom you relieve of liability in excess of £7,500 in the interstate sphere include not only those who are guilty of ordinary carelessness, but also - I will be corrected if I am wrong - those who are guilty of wilful misconduct. [Extension of time granted.] I am most obliged to the
Senate for granting an extension of time. I cannot find in clause 4 any provision that liability shall be unlimited where the carrier’s default amounts to wilful misconduct. Nor can I find in it any provision that he shall be deprived of limited liability where the act which caused the damage was done with intent to cause the damage. Nor can 1 find provision that deprives him of his limitation of liability where his act is one of reckless conduct. If those deductions that I have drawn from my perusal of the bill are valid, they pose a challenge as to whether, notwithstanding the two distinct advantages, in the sphere of interstate carriage, of conferring liability up to £7,500 without proof of negligence and of prohibiting contracting out, we are justified in giving immunity above £7,500 to a carrier, or his servant, who is found guilty of serious misconduct, reckless conduct, or mere negligence. For myself, I would not think that that was justified.
In reflecting upon this matter, Mr. Deputy President, I thought that honorable senators might consider it would not be irrelevant if I were to remind you and them of the approach that was made by Liberals in the 1890’s to industrial accidents. Until 1900, a worker employed in industry was in a very parlous state in respect of claiming recompense for injury. From 1896 onwards, we have a succession of workers’ compensation acts that have added to the common law liability of the employer for negligence and which give the worker a restricted amount that is very similar to the restriction of £7,500 that we are now considering, but which is much smaller. The highest figure for which provision is made for each worker in Tasmania now is £2,300. That restricted figure is given to the worker wherever an accident occurs in the course of or outside his industrial employment. No negligence on the part of the employer is required. The point I want to make is that, when w: introduced that reform, we did not say that the remedy to the worker was in substitution for the master’s industrial liability for negligence, whether slight or grave. We introduced the workers’ compensation legislation as a supplement to workers’ existing rights and not in substitution for them. I think that is a precedent from which, in this day, it would be hard to justify a departure.
– You cannot get both, can you?
– You cannot get both, but you can get whichever is the better. You can sue for your common-law right, but the statute expressly provides that, if you fail to prove negligence, you shall not fail in the action but that the judge shall consider whether you are entitled to workers’ compensation. If he decides that you are so entitled, the amount recovered is reduced by the amount of costs to which you put the defendant in his successful defence against the allegation of negligence. I should like to hear what the Minister has to say about that analogy. To me, it has a real attraction.
Having stated that position in relation, first, to international carriage and, secondly, to interstate carriage - each, I emphasize, confined solely to personal injury, without trying to deal with baggage and cargo - I wish to add a few supplementary remarks about particular matters. The first is that it will be noted, from my reading of clause 27(1.), that Part IV. of the bill hinges upon the holder of an airline licence in the course of regular public transport operations. “ Regular public transport operations “ are defined in clause 26, in an elucidating way, as having the same meaning as in the air navigation regulations. I am most obliged to the Minister, whose prescience and judgment have prompted the circulation of an amendment in his name to remove that blemish from the bill. I note that, according to an amendment circulated this afternoon, we are to have a statutory definition of the persons to whom Part IV. of the bill applies and, in effect, of those who engage in commercial aviation. Secondly, in dealing with these limited liabilities, I emphasize that the amount mentioned is not ensured in each case to be paid to the widow of a deceased passenger or to an injured plaintiff; it is a ceiling amount, and if damage can be proved to any figure up to £7,400, it is that amount of damage proved, as the Minister emphasized in his second-reading speech, that is recoverable. So it is misleading if we get into the habit of thinking that the bill provides an endowment insurance of £7,400.
Thirdly, at this stage I abstain from any comment upon what no doubt were con sidered to be the improvements of Lord Campbell’s act that have been introduced into this measure. I hope that those improvements receive a searching examination by this Senate, because anybody approaching the task of assessing their application will be, with his clients, involved in litigation for a long time without, I think, much advantage.
The Minister stated, in his second-reading speech, that a dependant shall not be limited to financial loss in the assessing of his claim. What does that mean, having regard to the principle of British law that, except to the extent to which it is an economic contribution to a survivor’s life, “ life “ under British law is not the subject-matter of civil compensation?
– Could the act or default of the carrier have some bearing?
– If you are going to to step outside the realm of true compensation and, according to your view of the carrier’s conduct, make compensation a penalty or a quasi-penalty, there is nothing that 1 know of in the law relative to punitive damages - the state of which I had the pleasure of discovering for a client on a recent occasion - to help the situation.
The last matters to which I want to refer in detail concern clauses 40 and 41. Apparently the Executive is to have power to make regulations relating to passengers’ tickets and baggage checks. Sub-clause (c) of clause 40 refers to -
The non-application, or modification of any of the provisions of section thirty-one of this Act-
That is, the provision that provides for the strict liability up to £7,500 - where the regulations relating to the issue, form and contents of such tickets or checks have not been complied wilh.
Clause 41 provides that -
The regulations may provide for applying, with such exceptions, adaptations and modifications as are prescribed, the provisions of the Warsaw Convention and the Hague Protocol and any of the provisions of this Act to and in relation to the carriage of cargo, being carriage in relation to which, if it were the carriage of passengers, this Part would apply.
I mistrust myself on such a circuitous journey, but it seems to me that the protocol and the convention dealt with baggage and passengers in the international sphere. When we come to pen Part IV., we seem to get tired or to run out of ink. We leave it to the regulators to provide for the baggage and the cargo, it being sufficient for the dignity of the Parliament to have vouchsafed to them what is intended in relation to passengers. Those are provisions, Mr. Acting Deputy President, which 1 hope will be challenged by all members of the parliamentary committee which has the duty to scrutinize bills that give unduly wide powers to those whose function it is to make regulations.
If I am right, the serious matter for consideration, and that which transcends all others in relation to this legislation, is whether or not we are justified, particularly in regard to the interstate sphere, in absolving from liability for amounts in excess of £7,500 carriers who have caused death or injury by acts of negligence, wilful misconduct or reckless conduct. I think that we shall need a very strong case indeed to justify any parliament, in this day and age, in absolving a commercial undertaking from liability in respect of those matters.
– in reply - I think that the Senate will sympathize with me in rising to reply to a debate of this nature on a bill which has been referred to by most speakers as being on of a very complex character. If we cannot agree on anything else, I think we all agree on that. It will be apparent to the Senate that a good number of the points that have been referred to must of necessity await the committee stage before they can be given the consideration that they deserve. However, I want to make one or two more or less general comments in the time that is available to me.
In order to keep the record straight, perhaps I should start by saying that the Government does not accept the amendment moved by Senator McKenna to the effect that the bill should be withdrawn and re-drafted to incorporate, in relation to Australian domestic air service within Commonwealth competence, the general principle of unlimited liability at law for negligence on the part of airline operators in respect of passengers, cargo and baggage.
I want, briefly and quite generally, to refer to the international aspect of this proposed legislation. Senator Wright has raised a number of points of detail and principle, but at the moment I shall content myself by saying that the Hague Protocol was an instrument which was agreed lo unanimously by 44 nations, including all those nations of any significance in the field of civil aviation, after experience over twenty-six years of the operation of the initial convention, the Warsaw Convention. Having said that, I leave the matter there, because I think that the Senate should appreciate that the responsible approach of the nations to this problem led to the result that I have described.
I want to refer to certain remarks which were made at the commencement of the debate and, at the same time, to some of the remarks which were made by Senator Wright at the tail of the debate. Senator McKenna suggested that the carrier should be deprived of the limits of liability if negligence were proved. Senator Wright made a suggestion under which the carrier would be liable without limit if the negligence were of a serious or a culpable nature.
– ls the honorable senator, now speaking of interstate travel?
– Yes, I am now speaking of interstate travel. Both of those proposals are unacceptable for a number of reasons. They seek to combine two fundamentally different principles of liability, namely, absolute liability with a prescribed limit - that, I think, has been generally accepted as being rather undesirable - and unlimited liability based on proof of negligence or, in the case of Senator Wright’s proposition, unlimited liability when a high degree of negligence or culpability is established. Acceptance of either of these proposals would tend to create the very situation which the legislation is designed to eliminate. Qantas at present travels through 26 countries. Without the convention. Qantas and its passengers could be subjected to no fewer than 26 systems of liability, there being in some cases very fundamental differences. Where liability is limited, in the absence of the convention, inevitably there would be different limits in different countries. The object of the convention was to bring unanimity into this complex situation. As I have said, 46 countries, after many years of experience, agreed to one single system in place of the multitude of diverse systems that existed before.
The International Civil Aviation organization of which Australia is a prominent and an active member, has repeatedly urged its members to apply, where possible, international rules to domestic operation. This is because aviation as we know it to-day, more than any other form of transport, transcends the concept of national frontiers and barriers. Except in seeking to provide domestic rules to replace the present unsatisfactory system under which carriers contract out of liability, Australia, as a member of I.C.A.O. and as a signatory to the convention would wish to give great weight to the international rules. The bill does this, and the only departures from the international rule are, on the one hand, not to deprive the carrier of the defence of Article 20, which provides for all possible measures to avoid damage, and is quid pro quo; on the other hand, it deprives the passenger of greater allowances. It is felt that these departures are fully justified because, while on the one hand the definition is not important, in practice it leaves the passenger uncertain as to whether he can recover anything, and on the other hand, the opportunity of removing the limits invites costly litigation in almost every case. Certainly both these matters are particularly important when the passenger is deciding whether he should take out extra insurance and, if so, how much extra insurance is necessary to meet his circumstances and responsibilities.
The principles in the domestic part of the bill are based on a careful balancing of the interests of both the carrier and the passenger. The carrier is deprived of his right to contract out of liability and is made absolutely liable. As quid pro quo, his liability is limited at a reasonable level which will cover the average claim.
– Subject to an upward variation if the parties agree?
– Yes, and further subject to the fact that the passenger himself may, if he so desires, take out additional insurance. The passenger is free to take out insurance for an extra amount if he considers that the cover of £7,500 is inadequate for his circumstances. Senator Vincent has referred by interjection to the provision in clause 31 of the bill which permits the passenger and the carrier to agree on a higher limit. In view of this careful balancing of interests, 1 see great difficulty in finding merit in the proposal to superimpose on this system an entirely different system based on negligence in the sense suggested by Senator McKenna, or of the more culpable degree of negligence referred to by Senator Wright. I need hardly point out that only confusion and expensive litigation have resulted whenever the courts or the legislatures have attempted to classify various degrees of negligence or to provide for different consequences according to that degree of negligence. Having regard to the strict system of liability which this bill establishes for domestic purposes, it would be unjust to do so.
I remind the Senate that the opportunity existed in 1945 to deal with questions of carriers’ liability in relation to TransAustralia Airlines. It should bs noted that the legislation intended to create at that time a complete government monopoly of all air services, so that if the legislation was to achieve its objective, the rules established in the Australian National Airlines Act would have- applied to all carriers within Australia. This is what the government of the day did. It prescribed, a limit of- £2,000 without any possibility of reaching the limit now suggested by Senator McKenna. Whatever the degree of negligence, this bill increases the limit imposed in 1945 by the Labour government by almost, four times. Liability could exist under the old measure, or under the Australian National Airlines Act only if negligence were proved. This bill imposes liability irrespective of proof of negligence. Trans-Australia Airlines could contract out of passenger liability although it has not, in fact, done so. The bill we are dealing with now prohibits contracting out. If the amendment proposed by Senator McKenna is viewed seriously, I can only suggest that there has obviously been a quite radical change in the thinking of the Labour party since 1945.
I regard this as being of some importance to intra-state aviation. It is, therefore, very important not to- adopt rules which are unlikely to be acceptable to State governments, all of. which have vital interests in State transport systems. They would be less likely to adopt the- Commonwealth legislation if ils principles did not ensure a fair balance as between the operators and the passengers. The importance to State governments is illustrated by a summary 1 have before me in relation to transportation fatalities. It has particular relevance to Senator Wright’s comment about the danger, or the potential danger, of air transport. The figures 1 shall cite were published in a bulletin issued by the Bureau of Census and Statistics. They refer to the year 1956. In that year, there were 2,332 road fatalities, being 89.7 per cent, of the total number of fatalities; there were 150 rail fatalities, or 5.8 per cent.; 89 water fatalities, or 3.4 per cent.; and 28 air fatalities, or l.l per cent, of the total number of fatalities in that year.
– ls the Minister quoting Australian statistics?
– Yes. I pause to add that all the fatalities in the air came from operations other than those of air transport operators. They were caused in military air accidents, and in crop-dusting operations and the like.
– In one year?
– Yes, the figures are for one year; 28 fatalities or 1 per cent, of fatalities suffered in all forms of transport. The system suggested by Senator McKenna, which seeks the best of two worlds for the passenger, might well be considered unreasonable by State authorities and a dangerous precedent unsuitable for application to State-controlled transport services. It is fair comment to say that the State Government when setting up its transport authority in 1945 was extremely careful to protect its authority at the expense of the passenger.
One honorable senator suggested that unlimited liability could be imposed because of the small additional cost per passenger. I cannot accept this as a sound argument. As Senator McKenna pointed out, insurance rates are very sensitive and, in the long run, depend on world-wide claims received. This bill in its present form will treble the cost of insurance to airlines at a time when profits are small and the industry is going through a difficult reequipment phase. Unlimited liability would impose a further heavy burden on air transport. I point out that the conditions imposed by this measure are already far more stringent than those imposed on any form of public transport in Australia, whether road, rail or sea.
As I have said, honorable senators on both sides of the chamber have stressed the desirability of extending the convention rules to intra-state aviation in the interests of uniformity because an aircraft frequently carries intra-state, interstate and international passengers on one flight. I agree that uniformity is desirable. That is one reason why domestic carriage within federal control has been based on the international rule. However, the Commonwealth has no general power to regulate the conditions of intra-state carriage.
Uniformity could be established by various methods. Senator McKenna suggested a constitutional amendment, reference of legislative power by the various State governments, State legislation based on the Commonwealth legislation, which is not ideal because of the possibility of divergent amendments, or uniform State acts similar to the uniform State air navigation acts which adopt, as State law, the provisions of Part IV. of the Commonwealth act. Part IV. has been deliberately drafted as a complete codification of the rules applying to domestic carriage. If the States are agreeable to this proposal, they may simply adopt Part IV. of the bill. I propose to explore all these possibilities of achieving complete uniformity with the States as soon as possible.
Senator Hannan referred to Article 20 of the Warsaw Convention, which gives the international carrier the defence that he took all necessary measures to avoid the damage, and suggested that that defence is not as narrow as I had suggested in my second-reading speech. In fact, the defence is so narrow that the Convention is regarded internationally as imposing absolute liability. A study by I.C.A.O. of 60 decided cases in all countries which have had litigation under the Warsaw Convention revealed that the carriers attempted to establish the defence in only four cases and were successful on only one occasion. The United Kingdom has applied domestically the Warsaw Convention principles. On the point under discussion, the United Kingdom Government modified the international rule by affording a defence to the carrier if he proves that he took all reasonable measures to avoid the damage. This was done having in mind that if all necessary measures were taken the accident would not have occurred. The change obviously was to the benefit of the carrier at the expense of the passenger. In applying the principles of the Warsaw Convention to Australia, this bill deprives the carrier of any such defence. The Australian passenger, therefore, will know with certainty - I repeat, with certainty - that on proof of damage he will recover up to £7,500.
Another matter to which a number of honorable senators referred, and on which they asked for assurances from me, was that airline crews should be adequately covered in the event of injury on duty. I am glad to be in a position to give this assurance. The Australian Air Pilots Association has negotiated arrangements for all airlines. Though varying in detail, those arrangements provide adequate coverage. For example, in the case of Trans-Australia Airlines, dependants of a pilot killed on duty will receive not less than £10,000 and, in certain cases, depending on the amount of superannuation entitlement, they will receive a significantly higher amount. Other airlines pay comparable benefits. 1 wish briefly to refer to the amendment in respect of baggage which was foreshadowed by Senator McKenna. The relevant article provides that acceptance of baggage without complaint is evidence that it was not damaged. The honorable senator pointed out that a passenger or his representative might not be able, through no fault of his own, to lodge a complaint, in the case of damage, within the specified time. He quoted the case of a passenger who was unconscious or ill, and suggested that the court should have power to permit an action where circumstances warrant, even if the complaint is made out of time. The suggested amendment is reasonable, and I accept it.
I have already circulated an amendment in respect of definitions to which Senator Wright referred in terms which I appreciate very much.
Question put -
That the words proposed to be left out (Senator McKenna’s amendment) be left out.
The Senate divided. (The Deputy President - Senator the Hon. A. D. Reid.)
Question so resolved in the negative.
The DEPUTY PRESIDENT. - That is so.
Sitting suspended from 5.50 to 8 p.m.
Original question resolved in the affirmative.
Bill read a second time.
– I foreshadowed that I might be moving for the appointment of a select committee to look at this bill. I propose to proceed with that motion, and I now put it formally before the Senate. I move -
No honorable senator would deny that this bill is of the utmost importance to some 2,000,000 air travellers in this country alone each year and, in addition, to their dependants. The fact that very few honorable senators have spoken in the course of the second-reading debate is, I suggest, a tribute to the complexity of the bill and to the technical legal considerations involved.
As for the international aspect, there is nothing that the Senate may do other than to accept or reject the proposed new treaty provided for in the Hague Protocol. Quite obviously, that measure being a great improvement on the Warsaw Convention, there is only one thing to do, and that is to accept it. But we are under no such compulsive pressure when we come to consider the new law that is to apply in Australia. The bill is, in its Australian aspect, essentially one for detailed study. I think it will be appreciated that very many of its aspects and features deserve close examination before a mature judgment upon the bill is possible.
I put it to the Senate that there is no hurry in this matter. Looking at the bill again, in its international aspect, one is reminded that the treaty was settled three and a half years ago, but that only eleven out of the 30 nations have ratified it so far. It has taken our own Government three and a half years to get to the stage of introducing this bill. It is quite certain that it will be a year, and perhaps longer, before the international treaty comes into operation as a result of the requisite number of signatories being obtained.
As for the Australian aspect, although the bill does improve the present position substantially I suggest that it is of so much importance that it ought not to be hurried for the sake of another month or two. We are in the middle of March. The proposal that I put on behalf of the Opposition is that the select committee should be obliged to report by 15th May.
Perhaps I might mention the type of matter to which I think such a committee should address its mind. We should look at the costs of insurance involved in giving to air passengers, injured or killed - in the latter case, of course, to dependants - the right to proceed for such damages as they can prove, without limit as to amount. It would be a very relevant consideration to find that very little was involved in enabling the airline operators, by their insurance cover, to protect themselves against that liability. That is one of the first things to which the select committee might well address its mind.
I think that it should look, too, at the effect of anything that might be done in this legislation upon the position in the States in relation to liability for damage by motor car, on the railways and by various other public authorities operating in fields where damage is likely, and may readily be caused. Senator Wright referred to the very interesting field of shipping. All those matters, varying as they do throughout Australia, ought to be looked at in relation to this measure. What is done here will be deemed by the public of Australia, and by State legislatures, to be done after mature consideration. I am submitting that this bill - introduced only last week or the week before-
– No, it was three weeks ago.
– Within the last two or three weeks, my recollection being that it was introduced last Wednesday week-
– It was introduced on 25th February, three weeks ago.
– I accept the Minister’s statement that it was three weeks ago. My recollection as to the date is not firm. There has not been adequate time for study in all the various fields that I have mentioned. I would say that we should address our minds to the type of verdict given in accident cases in such fields. It may interest the Senate to know that the top verdict in Victoria in a motor car accident case was £33,000.
– That was for injuries.
– I am not certain whether it was for injuries or death, but it was an individual case. I have had inquiries made and I say again that the limit of liability fixed in favour of airline operators at the moment - £7,500 - rather pales into insignificance in comparison with a verdict like that. It also pales when considered against verdicts of the kind mentioned by me in the Senate only the other evening, sums of £16,000, £18,000 and £20,000 being quite common.
The Senate should be stimulated by what is done in the field of motor car insurance in respect of the liability of road operators throughout Australia. I have had inquiries made. Time has not permitted my making inquiries personally, but the position now is that in two States there is no limitation whatsoever as to the damages that a person killed or injured by a motor car may attract. In New South Wales and Queensland there is no limitation. In Victoria there is no limitation as to the claim that may be made, but compulsory third party insurance extends to a limit of £2,000 in respect of a passenger and £20,000 in respect of all injuries in the one accident. An exactly similar position obtains in Western Australia. In South Australia there is a limitation, in respect of passengers in vehicles carrying for reward, of £4,000 a passenger, and of £20,000 in respect of all passengers involved in the one accident.
There is no limit to the damages for which a pedestrian may sue and recover. In Tasmania there is a limit of £5,000 in respect, of. any one claimant, and £50,000 in respect of any one event. Before the Senate passes a measure relating to a matter so important, and with ramifications affecting so many people, it should satisfy itself that- the measure is reasonably in line with modern developments in the road transport field. At the moment I am merely making, out a prima facie case to indicate that the whole field ought to be explored and that the provisions of this bill ought to be carefully lined up against it. I do not think anybody would deny that the bill would necessarily profit by an examination of that type.
A very interesting matter was mentioned by Senator Wright to-day. He referred to the position in the field of workers’ compensation insurance, where an action in negligence is not’ excluded. A man who seeks to proceed with an action for negligence against his employer is not debarred from exercising the lower remedy of workers’ compensation. The type of consideration to which the Senate might address its mind would be whether it would be reasonable in this field to fall into line with what is done in the important field of workers’ compensation, involving all the millions of employers and employees. The Senate could consider whether these things should be put on some firm, common basis, and whether, quite apart from convenience administratively, justice does not demand some such action. If I were a senator who had not fairly thoroughly examined this bill, I should be vastly relieved in my conscience if I felt that this Senate had appointed a committee to examine the measure thoroughly in all its aspects and to bring back a considered report.
I submit that a real case cannot be made out for speed in relation- to this bill. The present position has existed from 1935 in relation to Australia and its airline activities. The one variation was* made in the Australian National Airlines Bill, away back in 1945. It must be remembered too, that this Government during the last nine years has acquiesced in that position. After nine years of preserving the status quo, and after having Had these new provisions before it for three and a half years, I suggest that the Government cannot argue that there is any great haste for a month or two.
I believe that there would be great virtue in the Senate addressing its mind to this problem. After all, I have heard senator after senator on the Government side draw attention to what he claims to be one of the very important functions of the Senate that is not being exercised sufficiently, namely, getting down to a real study of bills. Here is a bill that originates in the Senate. This is one of the rare occasions when we have an opportunity to do a really thorough job. Here is a bill about which there is obviously no haste. My strong submission to the Senate, through you, Mr. Deputy President, is that we should take advantage of a rather special opportunity in a matter that affects millions of Australians.
I do not propose to address myself to the matter any further. I feel that the broad principles involved have been very well canvassed in the. Senate, even by the relatively few honorable senators who have addressed themselves to the measure, but 1 am prepared to say that details of the type I have indicated - fields of comparison, repercussions upon the States and the fairness and justice of the matter - have not had an adequate examination. It is with that thought I commend the motion to the Senate.
– The Government does not accept the proposal put forward by Senator McKenna. I submit that, contrary to what Senator McKenna has said, this is a bill which, by normal standards, has given honorable senators adequate time to study its provisions. It has been before the Senate for three weeks. By and large, not too many measures lie for so long on the table before they come forward for consideration. Senator McKenna has said that this might be an opportunity to examine certain factors in relation to the measure. Does he imagine that those factors were not most closely examined by the Government before the introduction of the measure? He mentioned the cost of insurance to the carriers. Does he think for a single minute, in view of everything I have said this afternoon, that that has not been an aspect which, in working out this legislation, the Government has not had constantly before it?
In order to persuade the Senate that there might be some advantage in referring this matter to a select commitee, Senaor McKenna mentioned damages awarded in traffic cases, presumably with the intention of inducing honorable senators to believe that an examination of this bill by a select committee might lead to some such arrangement in respect of air transport. Senator McKenna did not say that all the cases to which he referred required proof of negligence and that the measure before the Senate gives to the air traveller a system which requires no proof of negligence for recovery of proven damages up to a certain limit. That, I suggest, is its outstanding advantage to the travelling public of Australia and the travelling public internationally.
Senator McKenna said that it is three and a half years since the Hague conference. That in itself, I would suggest, is proof sufficient that the bill has been under the most minute examination. I say with a modicum of pride - if I may use that expression - this happens to be a little piece of legislation which it has been my jobto introduce - that the debate which has taken place has been a most useful and informative one. It is one of the best debates I have had the privilege of listening to in the Senate. I repeat that this is not a hastily prepared bill. It might be of interest to the Senate to know that the bill has been most carefully examined by the Attorney-General’s Department, and that the Attorney-General (Sir Garfield Barwick) has interested himself in it. It might be of further interest to the Senate to know that the Attorney-General was a counsel briefed by one of the parties in the only proceedings to date taken in Australia involving the Warsaw Convention. It has been agreed all around the chamber that the present situation of contracting out of liability and of the low voluntary limit of £2,000 is most unsatisfactory.
I say to the Senate that the appointment of a select committee would involve further delay, and that we should proceed with this legislation in order that the improvement, which has been acknowledged by almost every speaker who has taken part in the debate, may be enabled to take place. I keep an open mind as to the future. There would be nothing to prevent us from coming back at some subsequent date and, in the light of experience, further improving the measure, which I suggest is a desirable one.
– I feel that the motion proposed by the Leader of the Opposition (Senator McKenna) warrants a little consideration. I have listened intently to what the Minister for Civil Aviation (Senator Paltridge) has just been saying to us. I do not think that anybody to whom I have listened during the debate denies the merits of the two features that are referred to - the substitution of strict liability for negligence, and a prohibition in respect of contracting out - and it does not seem to me that any disadvantage would be likely to accrue from those meritorious provisions if the procedure of a select committee as opposed to that of a general committee of the Senate for the purpose of considering the matter in detail were adopted. 1 do not think it should be put to us as being conclusive that, because any department has meticulously examined a measure and has given its best to the formulation of it, we should escape the opportunity or the responsibility of satisfying ourselves according to our very limited abilities and our obvious handicaps compared with all the information that is available to the department. I do not think we are relieved of the responsibility of being satisfied about a measure.
Nothing could impress me more than an opinion by the Attorney-General (Sir Garfield Barwick) upon a legal matter. I would pay the utmost respect to it, but I would feel that if 1 were his veriest junior in a case and I said, “ Oh well, you have formed an opinion; there is no need for me to work on it”, he would regard me as committing an obvious dereliction of duty. His veriest junior has an individual duty, according to his status, to satisfy himself and to be satisfied by the abundance of information that may be forthcoming from the Minister, the department concerned and the Attorney-General. It may be that after proper examination all our anxieties would be cleared away and the measure would be passed without our dotting an “ i “ or crossing a “ t “.
For myself, which ever form of committee proceedings this bill is subjected to, I feel it incumbent on me to make a searching examination of the matter. When the Minister in charge of the bill commenced his reply this afternoon, he asked us to acknowledge the disadvantage that any one addressing the Senate on a measure like this must feel. That disadvantage will be increased twenty times during the committee stage; but if a select committee were appointed, officials could be questioned personally, they could give statements, and be, as it were, at our elbow, and the informality of the proceedings would bring a ready satisfaction. I do not feel convinced that there would be any disadvantage in referring the measure to a select committee.
Just let us consider the principle involved in clause 36, whereby absolute liability is substituted for all other liability except that which is set out in clause 37. I cannot bring to mind a parallel form of words - a statute which provides that the present law is in substitution for some preceding law. I have in mind the thought that it is an original expression owing its authorship to the text of the Warsaw Convention, but I ask: Is it intended that the liability expressed in this measure is to be in substitution for any criminal liability of a carrier under any other law in respect of an injury? If that is so, it is a monstrous proposition.
– It would be bad as against public policy, would it not?
– A statute that we passed would be bad as against public policy? I. have never heard of such a proposition!
– The interpretation of it.
– Well! If the interpretation of it is bad as against public policy, what a reproach that is to the Senate! I just say that that is a possible interpretation which owes its possibility to the fact that this expression that a new law is to be in substitution for an old law is rather novel from the viewpoint of excluding other laws. I have had discussion on a similar matter in the courts recently. I do not put any positive view, but just ask: Is it clear, as a matter of legal interpretation that that is not its meaning.
Then clause 37 preserves liability to pay contribution to another tort-feasor. I hope it will be explained that “ another tortfeasor “, about which Senator O’Flaherty had difficulty the other night, means only co-defendant or other person who has committed injury in a similar way and who, if he has to pay following a verdict for, say, £25,000, goes along to the carrier and says, “ I want you to pay your share.” How will that work out? I can see great difficulties.
I hope someone will tell me what clause 38 (c) means. Then there are clauses 40 and 41, especially clause 41 which prescribes that the regulations may provide for applying, with such exceptions, adaptations and modifications as are prescribed, the provisions of the two documents under consideration in relation to the carriage of cargo. I suggest that we will spend two days discussing these matters with great embarrassment, and with no satisfactory result from the viewpoint of ensuring that the bill expresses the purpose that meets the individual needs of the people. I should have thought that real advantage would accrue from the appointment of a select committee, even if the time within which it had to make its report were limited to mid-day on Thursday next. Alternatively, the Senate could do what I know that other thoughtful upper houses do, and take difficult matters into the conference room where they could be considered informally, with advantage to all members of the Senate. The benefit that is derived from the committee procedure is that each honorable senator has the value of the contributions of others. You cannot work alone on a thing of this sort and do the job that a committee of the Senate could do. It is the committee consultation that one values so much.
I suggest that there should be a select committee or that we should adjourn so that those of us who are interested may take the matter into the conference room and see that the points that are involved are argued out. I suggest that either of those courses would be preferable to public debate of these matters which causes embarrassment and does not get to the kernel of them. The final thing that I want to say, Mr. Deputy President, is that, from time to time, it is stated that the usefulness of this chamber could be emphasized by committees.
I suggest that there is not the slightest need for haste with this bill. This is a very appropriate occasion for the Minister in charge of the measure to give the Senate the opportunity, by means of a committee of some form, other than the committee of the whole House at the ordinary committee stage, to go into the measure. That would afford the fullest opportunity for departmental officers and others to provide legal and economic information regarding insurance and other matters, and that course might remove any anxiety that exists in regard to the measure. I feel, Sir, that if the informal procedure is unacceptable, select committee procedure would be preferable to the general committee, and I feel myself bound to vote for that course.
Senator Sir NEIL O’SULLIVAN (Queensland) [8.32]. - I am generally in favour of the Senate being given the opportunity to take bills into committee, particularly if there has been little time in which to examine them, but as this particu lar measure has been before the Senate for three weeks, I see no great advantage in having a select committee appointed. We can deal with it at the committee stage, as we shall later on, because we have had the opportunity for three weeks’ study of it. I feel that a committee of the whole would be much more satisfactory in these circumstances than a small committee, such as suggested by the Leader of the Opposition (Senator McKenna), would be.
I want to make one other observation, Mr. Deputy President, concerning the point raised by Senator Wright as to whether clause 34 excludes criminal liability. The whole of the part dealing with liability obviously refers to liability in damages. Clause 29 refers to liability of a carrier in respect of baggage, while clause 31 refers to limitation of liability. As I have said, the part deals exclusively with the liability to pay personal damages. It is not related at all to relieving a person guilty of a crime. Suppose, for instance, that murder were committed on an aircraft by one of the employees of the carrying company. That situation is not contemplated at all.
Clause 36 provides -
Subject to the next succeeding section, the liability of a carrier under this Part in respect of personal injury suffered by a passenger, not being injury that has resulted in the death of the passenger, is in substitution for any liability of the carrier under any other law in respect of the injury.
That is liability in respect of damages, not liability in respect of a violation of the criminal code. I think that that is quite obvious from a reading of the preceding clauses.
– in reply - I congratulate the Minister upon the enthusiasm with which he addressed himself to demolishing an argument that he attributed to me but which I did not advance. I do not for one moment deny that vast consideration has been given to this measure by the Government. I know, in fact, that very great consideration was given to it by the officers and by the draftsman, and I have had the opportunity of perusing at least one earlier draft. I have been able to note the variations. I realize that the Government has addressed its mind to this problem for three and a half years. It took the Government, with all the resources of its staff, and with the draftsman and the AttorneyGeneral, three and a half years to evolve this measure, but the Government has such a high opinion of the members of the Senate that it feels that they can, in addition to doing a lot of other things, deal adequately with this measure and dispose of it in three weeks. That is a nice tribute by the Minister to the members of the Senate if he really believes that that is so, because that is where his argument carries him.
Having addressed myself fairly closely to this matter, I should be very much happier if I were able to give it richer study. There have been many things before the Senate in the past three weeks, and I personally have been engaged in all of them, I think. The Minister must concede that if it took him and his officers, together with the draftsman and the Attorney-General, three and a half years to deal with this matter, it is a bit unreasonable to ask the Senate adequately to dispose of it in three weeks. But it is not unreasonable for the Senate to address to him an argument on the following lines: “ Extend that three weeks to a total period of three months.” That is all the more reasonable since, as Senator Wright said a few moments ago, there is no hurry about this matter. The provisions will not come into force, from the international aspect, for a year at least. The Government has allowed the position to remain where it is. on the Australian front, for nine years.
The only other matter to which I address myself is the Minister’s comment that, in my opening remarks, I did not advert to the fact that all the high verdicts to which I referred, such as those for £16,000, £33,000 and more, were verdicts in actions based upon negligence. I had addressed myself so much to that matter that I thought it not necessary to point that out. I say to the Minister that it was absolutely implicit in every word I uttered that those actions were based upon negligence, and I venture to say that nobody in the Senate, other than the Minister, thought otherwise.
In the course of my remarks I pointed to a number of matters that were worthy of examination, and the Minister does not deny that they are. His answer to me is, “ Do you think that the Government has not studied this? Do you think that the Government has not studied that? “ He rather represented - or misrepresented - me as putting the argument that I did not fully understand that the Government had done those things, and done them very thoroughly from the viewpoint of the Government and his department; but 1 am addressing an argument from the point of view of senators. Have we had all the advice and information from the AttorneyGeneral’s Department, the draftsman and, above all, the Department of Civil Aviation, that we should have had? The men who went to the conference could tell us the background of all these matters.
I feel that the Government has not even begun to answer the arguments upon which I based my motion. I hope that there will be a sufficient number of senators, who talk very often about the need for the Senate to get more committee work-
– Do you believe in select committees?
– Did you have many?
– Yes, we appointed quite a few.
– How many?
– We appointed quite a few, on your Government in particular. We appointed one on the Army; we appointed one on the Avoidance of Double Dissolution Deadlocks Bill, and we appointed one, or sought to appoint one, on your Communist Party Dissolution Bill. The honorable senator has interjected and asked for instances, and I have given him three. I have heard the supporters of the Government talk a great deal on this subject - I see some such senators before me at the moment - and put up the most impassioned pleas in this place on the need to have more bills in the Senate; and for more committee work to enable the Senate to review legislation in an objective way - to take its time and do the job thoroughly. I shall smile when some senator on the Government side gets up in the time that lies ahead and addresses those arguments to the Opposition. I shall be very amused because there never will be a better opportunity for that to be done than has been presented on this occasion. With that thought, in the event of my motion not being carried, I look forward to Government senators so doing in the future.
Question put -
That the motion (vide page 403) be agreed to.
The Senate divided. (The Deputy President - Senator the Hon. A. D. Reid.)
Majority . . . . 11
Question so resolved in the negative.
Clauses 1 to 8 agreed to.
Clause 9 (Texts of Conventions).
.- 1 am a little perplexed concerning sub-clause (1.). The format of this bill is to include the English translation of a French text in two schedules and then, by clause 11 - if I may make a passing reference to it - the provisions of the convention shall have the force of law in Australia. Sub-clause (1.) provides -
Subject to sub-section (3.) of this section, the text of the Warsaw Convention shall, for the purposes of this Act, be deemed to be the text set out in the First Schedule to this Act, being a translation into the English language of the authentic text in the French language of that Convention.
I rise for this purpose: 1 fear that if as a part of our law we say that the English translation in the schedule shall be deemed to be the text, the courts will be confined to the English translation in the schedule as the subject matter for their interpretation. No doubt the English translation contains many phrases which, in the French text, would probably convey some light and dark shades of meaning. As an example 1 mention the expression contained in Article 20, “ all necessary measures to avoid the damage “. If I had any knowledge of French 1 am sure that by reading the French text I should be able to capture the exact meaning of phrases, which 1 should be precluded from doing from a reading of the English translation. 1 do not wish to speak at length on this matter or to trouble the Minister unduly. While I do not regard this matter as having substantial importance, I have risen to ascertain the draftsman’s object in saying that the English translation shall be deemed to be the text. Our courts will be governed by that English translation.
– I. am provoked to enter the discussion on this clause by Senator Wright’s remarks. It is true that the English translation of the French text now appearing in the First Schedule is to be regarded as authentic, but that is subject to the provisions of sub-clause (3.) of this clause which points out that if there is any inconsistency between the text in the schedules and the authentic French text, the French text is to apply. That provision will add to the troubles of barristers who become involved in litigation, first, in obtaining the French text, and secondly, in appreciating the different nuances and shades of meaning between the French text and its English equivalent. In this babel of languages different nations have different words that describe an exact situation and for which the English language has no comparable word or phrase to convey the precise meaning. If honorable senators refer to Article 18 dealing with baggage and cargo they will see an example of the point I am making. Paragraph 3 is in these terms -
The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome . . .
As a lawyer, on reading that paragraph I immediately asked myself, “ What about canals; what about creeks; and, above all, what about lakes? “ From inquiries 1 have made I have ascertained that throughout the world many aerodromes are located immediately adjacent to canals, creeks and lakes over which passengers and goods may well be transported. Why did not the draftsman say simply, “ by land or by water “? That is the obvious phrase to use. The word used in the French text is probably sufficient to include water, but it has the element of flying over water. In the English translation our word will probably include seas and rivers but omit canals, creeks and lakes.
I merely advert to this point as a matter of interest. The difficulty arises in endeavouring to obtain the literal translation of a French word that is probably understood differently by the French and by other nations.
– If a lake is involved, one merely turns to the French translation.
– I merely indicate that point as one of the difficulties that faces anyone concerned with the drafting of such measures and then translating them into 46 different languages. Errors are bound to occur. In the ultimate, the authentic French text must be the touchstone. It will give some degree of certainty in words even though it may cause innumerable headaches to judges and lawyers of different countries.
– Some difference seems to exist between the Warsaw Convention and the Hague Protocol. Will the Minister explain the position regarding the international language? Are English and French both regarded as acceptable, or are other languages so regarded? How many international languages are acceptable?
– There are three official languages, French, Spanish and English, but in the event of any inconsistency the French text is accepted.
The question asked by Senator Wright has been answered largely by Senator McKenna. The First Schedule contains a translation of the authentic French text of the Warsaw Convention, and the Second Schedule contains a copy of the authentic text of the Hague Protocol in English. Clause 9 of the bill provides that in the event of any inconsistency between the text in the schedules and the authentic French text, the French text shall prevail. In the case of the protocol, there is the obligation to make the French text paramount. In the old convention the only authentic text is in French.
Clause agreed to.
Clauses 10 and 11 agreed to.
Clause 12 (Liability in respect of death).
.- Sub-clause (2.) states -
The liability under the Convention is in substitution for any liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger.
The text of the convention contains a provision to a similar effect. I have a recollection that the term “ in substitution “ is used in the text of the convention. Will the Minister inform me whether that is so?
– Where is that expression used? My recollection is that it is there, and my assumption is that the language in sub-clause (2.) has been borrowed from the convention. To me, it is a novel way of saying that an air carrier is liable for the death of or injury to his passenger from an accident on board the aircraft, up to £7,400. This liability is in substitution for all other liability in respect of that injury or death.
This raises the question to which I referred a moment ago when debating the motion for the appointment of a select committee. I ask the Minister to be scrupulously satisfied that, as a matter of legal interpretation, that language does not absolve the carrier from criminal liability for death by recklessness which, in our State, would be manslaughter. Secondly, I ask the Minister to satisfy honorable senators that it does not absolve the carrier from liability for a pecuniary penalty for a breach of an air force regulation or a civil aviation regulation. I refer, for instance, to a regulation relating to the carrying of a certain quantity of fuel and the provision of a penalty for a breach of that requirement; that is, an offence or misdemeanour as distinct from a crime.
I think that we should also have some elucidation of the origin of the term “ in substitution “ and of the interpretation given to it in our courts. We should also have some specific elucidation of how this affects any relevant State laws. The interstate trade and commerce power is not an exclusive power to the extent to which it is inconsistent with State law. It will prevail so long as it is authorized by the interstate trade power, but when it comes to saying, in effect, that the State laws in relation to the liability of the carrier with respect to his death or injury shall cease, I fear that we may very well be trespassing outside the ambit of our foreign commerce power and our interstate power. I fear that we could well be trespassing outside the ambit of those powers in attempting to silence the State law as to which we have no constitutional power. 1 raise this question not from any desire to be difficult. These are the matters about which I feel some embarrassment in debating in public in these circumstances, although I recognize that to gather together a reasoned view on these matters is difficult. At the same time, I suggest that we need to put these provisions to real scrutiny and this is the first matter to which I draw the Minister’s attention.
.- If I may put forward a view, I submit that sub-clause (2.) referred to by Senator Wright cannot in any way purport to affect the criminal liability of a carrier for a deliberately reckless piece of flying, or any reckless act, because the clause states clearly -
Subject to section fourteen of this Act, the liability under the Convention is in substitution for any liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger.
That obviously refers to cases between the passenger or his representative and the carrier. Criminal proceedings, on the other hand, are not taken by the passenger or his relatives; they are taken by the Crown. If it is a case of manslaughter in Tasmania, then the Crown, in right of the State, would launch a prosecution, and, to my way of thinking, there is no possibility that the civil obligation that is obviously referred to here could be related to the criminal prosecution which is between different parties. The mere fact that a prosecution for manslaughter arises out of the death of John Brown does not, of course, make John Brown a party to those proceedings.
– Where does the clause say anything about parties?
– The honorable senator was talking about a criminal prosecution.
– 1 was speaking about the expression “ liability of the carrier under any other law in respect of the death …. “
– I am dealing with a line of argument which, I suggest, precludes the possibility of a criminal prosecution being read into clause 1 2 (2.).
– “ Liability “ means civil liability, really.
– I think that is intended, but I think it should be expressed so as to make it clear.
– I desire to refer to sub-clauses (7.) and (8.). May I do so now?
– We are dealing with clause 12. The honorable senator may refer to any of the sub-clauses of clause 12.
– Sub-clause (7.) deals with the damages recoverable in any action including loss of earnings or profits up to the date of death, and so forth. They are the ordinary types of specialized damages which the law has called special damages. They are amounts which are capable of exact fixation, or exact assessment. They can be computed from precise figures which can be put before the court.
Sub-clause (8.) - and this is a matter upon which a number, of honorable senators touched during the second reading - states that the court or jury, in awarding damages, is not limited to the financial loss resulting from the death of the passenger. As the Minister pointed out, there was a decision - I think it was a King’s Bench decision - eighteen months ago in which the court held that it was entitled to award something for solatium in the case of the death of a passenger. If sub-clause (8.) is founded on the decision of a single judge sitting in King’s Bench jurisdiction, then, whilst I do not say that authority is not binding on us. I do say it might be more prudent if the clause were worded in more positive terms. For instance, in giving power to award damages, I submit that it might be more prudent if specific reference were made to the fact that a solatium or general allotment of damages may be made by the court. having due regard to the circumstances of the particular death, or the particular accident.
– I am interested in the points that have been raised by Government senators. It seems to me that Senator Wright has brought out something that must be considered because, when you come to interpret a statute you must look at the intention, not as understood but as expressed. Senator Wright has drawn attention to the fact that sub-clause (2.) reads -
Now, it is perfectly true that there will be laws relating to manslaughter and murder. I would suggest that the problem posed by Senator Wright could be cured very easily by the insertion of one or other of two sets of words. The Senate could insert after the word “ liability “ in the second line of the sub-clause the words, “ shall be in substitution for any liability to damages “, or, “ any liability in tort “.
– Would not “ the liability “ cover that?
– I am referring to “ any liability “ in the second line of the sub-clause. That is what I am concerned about, and is what Senator Wright has directed attention to. If you say “ any liability “, what do you mean - on the face of the words - either civil, or criminal or both?
– Do you not think that the meaning of the expression “ the liability “ in the first line of the sub-clause governs the meaning of the expression “ any liability “ in the second line?
– No, for this reason. In the first line the sub-clause pinpoints a particular liability under a convention. That is clear and definite. It is to be in substitution for any liability of the carrier in respect of the death of the passenger under any other law.
– Surely the two liabilities are used in identical contexts?
– I think not, unless that is so expressed. The honorable senator will realize the force of what I have said already - that it is the intention as expressed to which one must look. If the legislature wanted to pin it down to civil liability it could do so in express terms, and very simply. The Minister may not have had an opportunity to hear what I was putting earlier, so I shall repeat it. The point raised by Senator Wright could be cleared up very easily if, after the words “ any liability “ in the second line, the words “ in tort “ or “ to damages “ were inserted. The sub-clause would then read -
– Do you not think that the word “ tort “ might be too narrow?
– It is certainly a word to which our Whip, Senator O’Flaherty, would strongly object. He feels that “ tort “ and “ tort-feasor “ have not a sufficiently Anglo-Saxon origin - that we could well find a good Australian word to express the same thing very much better.
– Would not “ damages “ be better?
– I nominated that in the first place when I suggested “ any liability to damages “. That would pinpoint it and would get over Senator Wright’s difficulty. All obscurity would be removed. One could develop an argument about this in its general context, but the bill relates to carriage by air and the details of the convention all point to the matter of civil liability. Nevertheless, Senator Wright has drawn attention to the law as it is expressed under the bill. That will be the criterion for courts of law, and I think that it is well worth the Government making an effort to put the issue beyond all possible doubt, especially when that can be done so very simply.
– Let me say specifically that this clause does not absolve the carrier from any criminal liability. I find myself in a rather surprising position, ‘because I have been advised that the language used in this legislation was used in our own 1935 act and in the act of the United Kingdom.
– Our 1935 act is the worst on the statute-book.
– Be that as it may, would the honorable senator say that the United Kingdom act of 1932 was also bad?
– It is no better.
– My advice is that there has never been any difficulty in interpreting the language of this clause. I have listened with a good deal of respect to my lawyer friends - as I always do in such matters - but I would have thought that the fact that the language has been used without challenge for so long would have been sufficient answer. Senator McKenna has suggested the insertion after the words “ any liability “ of the words “ to damages “ or “ in tort “. My own inclination is to suggest that it might be very simply stated if we were to alter it to read “ for any civil liability “.
– That makes a clear distinction and achieves the same result. 1 would be happy with that.
– I agree.
– Any one who attempted in a court of law to argue that the word “ liability “ in the first line could mean the substitution of a criminal liability for a civil liability would be asking for trouble from the learned judges.
– No one has argued that in respect of the words “ the liability “ in the first line of the sub-clause. I said that those words were defined with absolute precision.
– I do not know whether the honorable senator would like to argue in a court that any legislature intended to substitute a civil liability for a criminal responsibility.
– If the honorable senator would like me to reply to that, I shall do so.
– I think you would be in trouble. I feel that some clarification would be beneficial, although it is not essential. The only possible meaning is that both liabilities refer to civil law.
– I should like to say very briefly that if I had occasion to defend an airline operator charged with manslaughter, the first section under which I should take refuge would be that one. I would regard it as the greatest gift I had ever been given in criminal practice to find a section in those terms available to my hand. I would present that argument wherever I could be heard, even in a court of appeal. I would have no hesitation in regarding that as a most powerful weapon in my hand. We have to remember, too, that a court will construe a provision of that type in favour of an accused.
– This is not a penal statute.
– I know it is not. The bill and the whole discussion pinpoint the vast advantage there would have been if we had been sitting down out of the public gaze, having a go at these things. The Minister has put up a very bright suggestion. I, a lawyer, suggested two words, but he, a layman, has produced the same effect with one word. I congratulate him very heartily. All that we in the chamber are concerned to do is to put the matter beyond doubt. I would say that this is one occasion where a layman’s language is perfectly acceptable to the lawyers.
Amendment (by Senator Paltridge) agreed to -
In sub-clause (2.), after “any”, first occurring, insert “ civil “.
.- I regret that, so far as I am concerned, this clause is going to detain the committee for quite a long time. That is not a threat; I am merely apologizing for proposing to take up the time of the committee. Sub-clause (4.) reads -
To the extent that the damages recoverable include loss of earnings or profits up to the date of death, or funeral, medical or hospital expenses paid or incurred by the passenger before his death- 1 like the gravedigger’s humour in contemplating the payment of my funeral expenses before my decease - or by his personal representative, the liability is enforceable for the benefit of the personal representative of the passenger in his capacity as personal representative. lt is only in this abstract sphere that you would have such an expression printed. Elsewhere you would never have it printed in a statute. Only here would you have it printed. I refer to the words - for the benefit of the personal representative of the passenger in his capacity as personal representative.
If we are old-fashioned enough to look at Lord Campbell’s act, we see that the right of action for compensation for death was given for the first time about 100 years ago. Mr. Minister, I might say that we are still finding problems in its application and interpretation, even though it has been applied in thousands of actions in assessing civil compensation. Please bear with me when I say that although litigation so far has not solved the difficulty of ambiguity, that does not mean that the lawyers are not conscious of the ambiguity. They avoid spending their client’s money by going to court, but the actions have to be compromised at the expense of some one. If we know of ambiguities, let us seek clarity and remove them. If Lord Campbell’s act is looked at, honorable senators will see that widows were contemplated as persons who could be saved the expense of getting formal probate and having personal representatives appointed for the administration of the estates. These terrible lawyers - these people who are supposed to produce ambiguities - are working night and day to save their clients from ambiguities created by legislatures.
– A laudable motive.
– Yes. I am speaking now on behalf of the widow to whom it would be an advantage not to be put to the expense of getting a personal representative appointed. If her husband has no property and she has lost only his work ing capacity, she has this right of action but no other assets, and therefore there would be no need for the payment of £20 or £30 to get letters of administration or probate of the will.
Lord Campbell, as Jong ago as the time I mentioned, provided that any member of the family could bring an action in his or her own name if an action were not brought by the personal representative within, I think it was, six months after death. The statute provided that within the next six months any member of the family could bring an action. Clause 12 states that the liability for loss of earnings or profits up to the date of death, or funeral, medical or hospital expenses paid or incurred, is enforceable for the benefit of the personal representative in his capacity as a personal representative. When Lord Campbell wrote the original statute dealing with this matter, he spoke of the persons for whose benefit the act was intended. He did not speak of the benefit of the personal representative in the capacity of a personal representative. He said that he was a person who could sue for the benefit of members of the family if they liked.
I just want some explanation as to why in clause 12 such inroads have been made upon language which is a precedent and which has undergone interpretation by the courts. If the wording of the Victorian statute, the Fatal Accidents Act, were used - I have not got it with me, but some one might send for it - we would not be confronting people with new ambiguities of this sort in their attempts to recover compensation under this Commonwealth civil aviation brand of legislation.
– I am told that the effect of the clause is not to preclude the collection of the expenses by the widow if she paid the expenses herself. If she did so pay the expenses, then she could claim in her own name.
– One thought that occurs to me and which I think I should project into the discussion is that probably in every State of Australia there is some one in the nature of a public trustee who, in a situation where there are no assets other than a claim of this kind, is able to voice an election to administer the estate - a very cheap public process which avoids the formal taking out of probate or letters of administration or that kind of thing. I wonder whether the draftsman ever had that aspect of the matter in mind.
There may be a little superfluity of words here. The position may well be as was indicated by the Minister - that is, if the widow is paid these particular things, they will form part of the damages she has suffered and can recover. But on the other hand, if she is not paid and if, in the case of a businessman, the loss of profits has to be recovered and there are no assets apart from this claim, an election to administer by public trustee would be a very easy and cheap process. I am not able to say whether that applies in every State, but I think it does.
– He would be a personal representative.
– He would be.
– That is available now under this provision.
– Yes. That is what I point out.
– But then you would have to finance him, because he has to stand suit. If he brings an action, he has to be indemnified by an impecunious widow.
– That is so. There are various societies for legal aid for people who are in completely indigent circumstances. In the case of a widow without assets apart from this particular claim, no indemnity she could give would be worth two hoots to a public trustee or anybody else.
– Therefore, he would not take action, because he would have a worthless indemnity.
– I suggest there is the other line of retreat in the extreme situation where there are no assets - that is, that the aid that is available to paupers and indigent persons might well be available.
– I may not have followed Senator Wright correctly, but I feel that sub-clause (4.) relates only to that portion of the damage which is in fact part of the estate of the deceased. The sub-clause reads -
To the extent that the damages recoverable include loss of earnings or profits up to the date of death . . .
That forms part of the estate of the deceased. In Western Australia, if the sum exceeded £50, the widow or the executor named in the will would have to take out letters of administration or probate, as the case may be. Although I do not like the way the sub-clause is worded, I think it is intended to mean that the personal representative should be the person entitled to sue in respect of that portion of the damage. I may be wrong; I do not know whether Senator Wright assumed that the damages referred to in sub-clause (4.) were or were not part of the estate of the deceased.
.- I do not wish to say anything more about subclause (4.). I shall refer to sub-clause (7.), which reads -
The damages recoverable in the action include loss of earnings or profits up to the date of death and the reasonable expenses of the funeral of the passenger and medical and hospital expenses reasonably incurred in relation to the injury that resulted in the death of the passenger.
I am a little mystified as to why it has been thought necessary to provide that the damages recoverable include loss of earnings or profits up to the date of death. I suggest that, if you say that the action can be brought to recover earnings and profits up to the date of death, you may be saying that prospective profits after death cannot be recovered. If there is any precedent for this form and the matter has been subject to judicial discussion, and if that fact can be referred to me, I shall be readily convinced that there is nothing in my fear.
I do not think that these words appear in other fatal accident legislation. Therefore, I should like the Minister to satisfy himself that the words in question will not be a basis for an argument that prospective earnings and prospective profits after the date of death are not to be considered as permissible items of damage in a claim of this kind.
– I think Senator Wright has made a point, but if sub-clause (8.) is read in conjunction with sub-clause (7.) I do not think his difficulty is nearly so great. Subclause (8.) refers to the method of awarding damages in general. The proposed legislation means exactly what Senator Wright is seeking - that is, that damages include loss of profits both prior to and subsequent to the death.
– I feel that what Senator Wright has put forward calls for an answer. Sub-clause (7.) reads -
The damages recoverable in the action include loss of earnings or profits up to the date of death . . .
Senator Wright has put the proposition that the legislature, in specifying that, is dealing with the whole question of loss of profits and that this sub-clause, although not intended to be so, may be a de-limiting provision. It may be argued that the legislature, having dealt with loss of profits and having said that it may be claimed up to the date of death, is denying that it can be claimed in respect of the period after death.
– Would not sub-clause (8.) govern that?
– Sub-clause (8.) has nothing whatever to do with it. I say that with very great respect, for the reason that that sub-clause deals with loss other than financial loss. That is an utterly unrelated matter.
– Not necessarily.
– Sub-clause (8.) reads -
In awarding damages, the court or jury is not limited to the financial loss resulting from the death of the passenger. 1 suggest that that is completely unrelated to the matter that we are now discussing, which is financial loss. 1 submit to the Minister quite seriously that there is some virtue in the point and that a court may say that the legislature, if it has dealt with the question of loss of profits and has said such may be claimed up to the date of death, is denying that it may be claimed in respect of profits likely to accrue after death.
I point out to the Minister that the greatest element in a claim for damages would be the fact that the breadwinner had an earning capacity which has been cut off, that he had prospects, and that the greatest measure of damages in respect of his death would be awarded in respect of the profits that are now denied to his family. The Minister will appreciate that, if there is any possibility of doubt upon the point, it would be a grave injustice to anybody who may be claiming. I know perfectly well that the Minister does not intend that result; he intends that a widow who claims for the loss of a bread winner will not only be able to recover profits accruing up to the date of death but also have as an element of her claim all those profits that might have been earned and enjoyed by the family after death. If there is any doubt on the point, it should be removed. I am putting this matter to the Minister seriously, and in the circumstances I think he ought to make the matter very clear.
– With great diffidence, I must state that I interpret this clause and the whole intention of the bill in a manner that is different from that of either Senator Wright or Senator McKenna. This is a clause which makes provision for the recovery of earnings or profits up to the date when death occurred. That, surely, does not exclude profits earned after death, because the whole basis of the damages is that they be assessed on the damage suffered as a result of the death.
.- I have directed attention to this matter, and perhaps the Minister would be good enough to have it examined before the measure is submitted elsewhere. In all humility, I think that when you go to the trouble of saying that profits and earnings up to the date of death are claimable, some judges may well ask, “Why would the legislature say ‘ up to the date of death ‘ if it intended us to take into account prospective profits and earnings that could be expected after the date of death? “ If honorable senators will refer to Dr. Fleming’s book on torts, they will see the way in which he expressed the law, which was the way that we knew it before we had the innovations on the Canberra pattern. Dr. Fleming stated, as the genuine law embodied in what we know as “Lord Campbell’s Act” and adopted, I should think, in all States, that -
The statutory remedy has been cut down by interpretation to allow recovery only for loss of the pecuniary advantages which the survivor derived from the deceased and for loss of reasonable prospect of material benefits which depended on the continuance of life.
In the most authoritative statement of recent years, in reference to a case from Canada, the Law Lords said in 1951 that the way you approach the assessment of damages in these matters is, first of all, to ask what the deceased was earning. You call that fX per year. Then you estimate for how long, but for this accident, he probably would have gone on earning that amount. You call that Y years, and the first part of the sum, to arrive at your damages, is £XY reduced to true present worth and taking into account other factors. I only mention that, Mr. Temporary Chairman, because it is so essential in the case of a claim of this kind to realize that the basis of it, if not practically the entire content, is the estimated value of the profits or earnings of the deceased after death. If we provide, in a statute, that the claim’ includes the profits up to death, I am afraid that it may cause difficulty in recovery of profits after death.
Let me now turn to sub-clause (8.). In this respect, I have been afforded the information, for which I am very grateful, that the intention is, in a claim under this statute for damages arising from death, to allow the court to take into consideration, in assessing the claim, matters other than financial loss resulting from death. I am indebted to the officers advising the Minister for a reference to Preston’s case in 1956, reported at I Queen’s Bench, 454, in which, I am informed, one learned judge, in construing the Warsaw Convention, asked himself, “ Am I limited to financial loss of the deceased?” After toying with the question, he answered, “ No. In this instance I will give £400, in addition to the financial loss, for children who have lost their father.” I submit, with very great respect, that the approach of that judge was wholly unscientific. So far as I know, it has not been subjected to higher comment. The draftsman, with very laudable purpose perhaps, has endeavoured to write that single judge’s sympathy into this statute. If this clause remains as it is, it will make confusion very much confounded.
In Scots law, as distinct from English law, the courts are entitled to give the dependants, not merely the economic value of the deceased’s life, but a solatium, or something to assuage injured feelings. That is a conception that we can understand. If it had been said here that, in awarding damages, the court might take into consideration a solatium - or to avoid the Scots Latin, something to assuage the bereavement or the injured feelings of the family - that would have been a proposition that lawyers would have understood. To say that, in awarding damages, the court or jury is not limited to the financial loss, is really to say, “ Compute your financial loss as any judge would. Then you have the whole sweet heaven in which to cast your imaginative thoughts - and what will you bring back?” The bill merely says that the court or jury is not limited to the financial loss. It does not say that it will be authorized to include compensation for some other factor, and specify what that factor is. That, I submit, is very important.
In 1917 Appeal Cases, there is reference to a case in which the Navy claimed against a ship whose negligence had caused the sinking of a Royal Navy vessel, as a result of which His Majesty’s Navy lost 18 seamen. Quite properly, the Navy paid pensions to their widows, and His Majesty then sought to recover that compensation from the tort-feasor, the other ship whose negligence caused the sinking. There is a thorough review of the position that the English law does not allow any compensation to be recovered for a human life except to the extent of its economic worth.
Why? Because if I die my dependants are entitled to recover economic compensation only to the extent to which they have been deprived of the economic value of my life. But the law does not quantify my value from any other aspect. And when, as you say here, in awarding damages the court or a jury is not limited to the financial loss, it prescribes no rule in respect of any subject-matter and opens the court to an imaginative flight into any aspect of just damage assessment other than financial loss arising from the death. I submit that that is a provision that has been illconceived. If it is expressed in a proper form so that the dependants are made entitled to recover a solatium, I will not object. Indeed, I think that would be an improvement, too. lt would be a subject for quite purposeful debate in this chamber to introduce that aspect into English law.
Senator Sir NEIL O’SULLIVAN (Queensland) [9.52]. - This is a negative provision, not a positive provision. The solatium must be given. It is a provision that 1 consider could be wisely left to the discretion of the court rather than to the narrow definition that the legislature might place on it. The provision really says that the courts are not restricted to the strict financial losses that may be established.
I think that the courts could be well trusted to interpret the provisions wisely. It would be most unlikely that, other than in special circumstances, anything other than a strict financial loss would be taken into account by a court. I think it is wise to leave the matter to the court, rather than the legislature, free to make provision other than in relation to strict financial loss that can be established.
– T do not know that there is anything I can add to what Senator Sir Neil O’sullivan has said. The intention of this provision is to permit the court in circumstances which the court adjudges fit and appropriate to award damages other than financial damages. I have to say that I have little knowledge of the manner in which courts work, but I do not think it can be assumed that a court in administering a provision such as this, would go to the extremes that have been suggested during this debate. For my part, I regard it as a provision which might enable a court, in circumstances which are fit and proper, to make provision beyond financial damage to the extent that the court judges to be appropriate. In the case which has been referred to, Preston v. Hunting Air Transport Limited, the amount involved was not large. It was £400.
– Was it in respect of the loss of the father - the breadwinner - or the mother?
– It was in respect of the loss of the mother by the children. I think that if that can be taken as an indi- cation or guide, it would lead to the conclusion that the court, in administering a provision such as this, would not go to excess but would, in fact, interpret the provision in the manner that was done in the case referred to.
– 1 should just like to put on record a viewpoint on this matter. I appreciate the coldly legal academic argument but where there are such strict limits in a measure of this kind I relish a little freedom and relaxation to a court to introduce a new element. I am not familiar with the details of the case that the honorable senator has quoted, but 1 was under the impression that the breadwinner - the father - had been killed and the mother also.
– The father was already dead.
– The mother was killed and a solatium was given, in respect of her loss, to the children. That was a very proper and generous proceeding, and within the narrow limits of £7,500 I am happy to welcome anything to enable the court to do justice, having regard to the human element in the situation, and to deal with the situation like that other than on a coldly financial basis.
Take the case of an elderly father and breadwinner without a great expectation of life under normal circumstances, and young children. He and the mother are killed in the same air accident, and very little portion of the £7,500 can be recovered by way of damages by the children in the ordinary course of events. I think it is a great advantage to the court to be able to say that they would be deprived not only of their breadwinner but of the society of their two parents and conclude, “Here is a proper case where we can go to the limit of £7,500 in favour of the children on account of financial loss and the loss of the society and protection of the parents”. I just put it on record that I welcome that approach.
– I quite agree with Senator McKenna and the Minister in regard to the interpretation of this clause, but I do suggest that as the sub-clause is worded in a negative sense it does not exhaust other factors relating to the assessment of damages. Reference has been made to the factor known as an assessment of damage for loss of affection - solatium. As the clause relates to the international carriage of passengers, surely in certain circumstances the right exists of a passenger or the representative of a deceased passenger to claim more than the statutory amount. Therefore, 1 suggest that clause 8 may also refer to cases where a sum in excess of £7,400 could be allowed.
Take the case where an aircraft is deliberately wrecked. Would it not be possible for either punitive or exemplary damages to be awarded under the provisions of sub-clause (8.)? Possibly it would be quite competent for a judge in directing a jury as to the assessment of damage to tell the jury that it need not limit its consideration of damages to financial loss but may consider other factors. One of the other factors would surely be the consideration of exemplary or vindictive damage due to the nature of the negligence, perhaps.
I just put that to the Minister because it does seem to me to be illogical to suggest that as the sub-clause is in a negative sense all the factors relating to the assessment of damage should be taken into consideration.
– The answer to the proposition posed by Senator Vincent is, “ No “. In a case such as that to which he referred the convention would apply. The convention is very strict as to limits and, in no case except where Article 25 applies, can the amount of damages allowed be extended beyond £7,500.
Clause, as amended, agreed to.
Clause .13 (Liability in respect of injury).
– Clause 13 reads -
Subject to the next succeeding section, the liability of a carrier under the Convention in respect of personal injury suffered by a passenger, not being injury that has resulted in the death of the passenger, is in substitution for any liability of the carrier under any other law in respect of the injury.
Clause 12 (2.) deals with liability in respect of death, and clause 13 deals with liability for any injury not leading to death. I suggest that the word “ civil “ should be incorporated in clause 13.
– I move -
After “ any,” first occurring, insert “ civil “.
I take the opportunity to point out to honorable senators that two further similar amendments are proposed.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 14 -
Nothing in the Convention or in this Part shall be deemed to exclude any liability of a carrier -
to pay contribution to another tort-feasor who is liable in respect of the death of, or injury to, the passenger,
.- I direct attention to paragraph (b) and, for the purpose of putting my point I shall use an illustration. Let us suppose that a petrol wagon is standing on the runway and that the pilot of an aircraft failed to notice it before he commenced his take-off. This kind of thing happens only once in ten years, but obviously both the pilot and the driver of the petrol wagon are negligent. Let us suppose that the pilot is killed; his widow sues the oil company; she receives a verdict for £20,000; she recovers that amount from the oil company which then says to the airline company, “ I want my contribution towards that amount from you “. Having regard to the provisions of clauses 12 and 13, is that liability for tort? Is the airline company qua that liability a tort-feasor? I think not, because a strict liability is imposed, in circumstances where the defendant is not guilty of any fault, in favour of a passenger on board an aircraft who is injured as a result of an accident. It is a statutory liability of that absolute character not based upon any tortious conduct. Is the phrase “ another tort-feasor “ appropriate? Do the State acts that permit recovery of a contribution as between tortfeasors cover such a case? That is the first point.
The next point is as to how the verdict is to be apportioned. I have taken the case where the airline company is completely blameless but accepts the strict liability that we, as a Parliament, have imposed on it.
Let us now take the case where it is dreadfully culpable and, using my illustration, the pilot runs his aircraft into the petrol wagon. The oil company pays the verdict of £20,000. What recovery is it permitted against the airline company?
– Why is there a limitation as between two commercial organizations? Is it because the Government has an interest in one of the main civil aviation undertakings? I know that the Minister would never assent willingly to a proposition of that kind, but is that the undercurrent which is responsible for extending this limitation of liability? I suggest this matter must be worked out on a just and equitable basis, in relation not only to the deceased but also to all persons whose conduct of a blameworthy character has contributed to the disaster.
– The position is as described by Senator Wright. The limit of liability in the case he mentioned would be £7,500. That is the underlying basis of the convention, that the limit of liability of the carrier in such a case is £7,500.
.- Would the Minister be good enough to consider the Opposition Whip’s tender susceptibilities in the matter of the word “tortfeasor “ and substitute the word “ person “? Would any difficulty be experienced in doing that?
– Difficulty would be experienced in doing that because the State acts which provide for contribution as between tort-feasors would not be attracted.
– That may be the answer. In any event, if we do not make any progress with the Minister, we have, at least, got some answer to the Whip’s question as to why the expression “ tort-feasor “ has been used.
– I make this further comment to Senator Wright. The provisions do not purport to impose on the carrier liability to pay a contribution to another tort-feasor; they merely preserve any right to such contribution that may exist under the State law and to limit the amount of contribution recoverable. Liability under the convention is considered to be a liability in tort as, in view of the defence available to the carrier, the liability depends on some degree of presumed fault on his part. On the other hand, there may be some room for doubt as to whether the absolute liability imposed by Part III. of the bill is liability in tort. However, any such doubt could not affect the right of another tort-feasor to contribution. But the effect of the clause is considered to be that, subject to the limit of liability, the same rights to contribution exist as if the Convention and the provisions of the bill giving effect to it did not exist. The person claiming contribution would have to show that, apart from the provisions of the bill, the carrier had committed a tort, and, furthermore, the amount of contribution recoverable would, by the State law, be limited to the amount that the court thought just and equitable, having regard to the extent of the carrier’s responsibility for the damage. If any doubts do exist as to the application of the State laws relating to contribution, that is a matter for adjustment by the State parliaments.
.- I venture to suggest that that needs a little consideration. The fact is that this clause, as the Minister says, does not impose liability to pay contribution for a tortfeasor; it only preserves any right that does exist by virtue of State law. If, as he says, there is any doubt, under Part III., as to whether this absolute liability is tortious liability, then I submit there is very serious doubt as to whether the State act providing for contribution as between joint tortfeasors, when both are tort-feasors, makes it obligatory for the airways company to yield up its contribution here. On the statement of the Minister, there is doubt as to whether this liability is of a tortious character.
– I ask Senator Wright to look at paragraph (b) which reads, in part - to pay contribution to another tort-feasor who is liable in respect of the death of, or injury to, the passenger.
I am wondering whether it would meet Senator Wright’s point if that were amended to read - to pay contribution to a tort-feasor.
.- 1 think the amendment would meet the point, but, before the Minister proceeds that far, I suggest it might be better to have a look at the provision with a view to putting it in order if, on mature consideration, that is thought to be better. I am not putting forward the view that this absolute liability is certainly not a tortious liability; 1 say it raises a doubt, and I should not like the Minister, just on the discussion I have initiated, to adopt any language that would indicate that it clearly was not a tortious liability. 1 have been pressing this matter so that, before finality is reached, full consideration will be given to it. I thought that it might not be the best thing to delete “ another “ until that question has been fully considered and it was definitely decided that this was not a tortious liability in the considered opinion of the Government’s advisers.
– Without retreating in any way from Senator Wright’s request to have a look at the matter, I still think it might be of assistance to delete “ another “ and insert “ a “ in lieu thereof now. Accordingly I move -
In paragraph (b), leave out “ another “, insert “ a “.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 1 5 (Proceeds of insurance policies, &c).
.- At last I think I have reached a clause in which we all have a very active interest. It is a matter that concerns every layman as well as every lawyer in the chamber, in equal degree. It is a clause that is common in fatal accident legislation but, of course, in the cast in which it is set here, it is of a special variety, and I ask the Minister to consider whether this clause is adequate for the purpose.
For the purposes of argument, let us take a death claim. Let us assume that the claim relates to the death of a workman who was earning £1,000 a year. Let us assume that he was killed at 40 years of age, that his expectancy of working life was another twenty years. This would mean that he would earn £20,000 over the next twenty years. Of course, to get £20,000 to-day is better than getting it at so much a year over 20 years. That being so, let us assume that it is worth £15,000 to-day.
In interpreting this legislation, the courts say that dependants are entitled to recover only the loss that has been caused to them by the death. If that death has meant a loss of those earnings on the one hand, it has also caused to accrue to the widow benefits from the deceased estate, and it is only the net loss in respect of which recovery is to be made. That is to say, if it were the case of a child dependant, and the father left £3,000, I think the court would probably say that the £3,000 would have to be deducted from the £15,000 I have mentioned. Thus, the net loss would be £12,000. I say, “probably” because, according to a judgment of the High Court in the Western Australian case of Zoanetti, there is doubt as to whether the accelerated value or the full value is deducted. But 1 need not introduce that complication. There is a deduction from the gross loss of the benefits.
This matter was raised first in connexion with life insurance policies. Then it was raised in connexion with accident policies; then it was raised in connexion with superannuation fund benefits. Then, since social service benefits have come to be available, they, too, have been deducted. In a case I had in Tasmania four years ago, and which went to the High Court, a widow’s pension was deducted until I secured an amendment of the Tasmanian law so as not to allow the inclusion of the benefit in the assessment.
If we look at the statute before us, we see that it is proposed to prevent the deduction of moneys payable under a contract of insurance, whether it is an accident contract or a life insurance. In addition, a sum paid or payable out of a superannuation, provident, or like fund, or by way of benefit from a friendly society, benefit society, or trade union is not to be taken into account. I have no objection to that; I merely want to observe that when superannuation was first excluded from this assessment it was at a time when the employer and employee were establishing a very small superannuation fund and it was a matter of mercy not to take that into account. But in the Public Service to-day, at the expense of the
Treasury, superannuation benefits have grown to be something of the order of twothirds of the employee’s salary.I have before me at present the case of a deceased public servant, whose widow is receiving two-thirds of her husband’s salary. She is, nevertheless, entitled against the tort-feasor to recover the full value of earnings, unreduced by the two-thirds payment, which she will receive for the rest of her widowhood. Consider for a moment the position of passengers on Trans-Australia Airlines in relation to this sum of £7,500. I have already said something about its insufficiency, but that does not affect the principle that I am inviting honorable senators to consider. T.A.A. is asked to pay this compensation out of its public funds. The public servant who is killed leaves a widow who is provided for by way of superannuation for that very purpose. You can, if you like, take the case of a member of parliament, to whose widow accrues his retiring allowance. All I am saying is that that is an example of access topublic funds by way of a double channel - twice in respect of the one injury.
– Superannuation is not drawn in respect of an injury, surely?
– The Treasury contributes to it in a large degree.
– But not for an injury of this kind.
– That is only a captious remark, on that basis. There accrues, by reason of the injury to the dependant, two lots of compensation, both from public funds. However, that is not the purpose of my rising. I ask the Minister to tell me what is meant as a matter of language, in any practical world, by the words in paragraph (c) - a premium that would have become payable under a contract of insurance in respect of the life of the deceased passenger if he had lived after the time at which he died.
Honorable senators are so accustomed to hearing reading language of this kind, which we have to wade through here, that they believe it to be the genuine language of lawyers. It certainly is not. If any one can tell me what that is addressed to 1 shall gaze at the gleam of light with rapt attention.
– Does the honorable senator understand the language of the bill now?
– No. 1 refer to it merely by way of criticizing what is in the legislation. I shall now criticize what is not to be found therein. I ask honorable senators to consider the position of the widow whose husband, killed in this way, possesses a house worth £5,000. If the bill goes through in its present form the defendant airway carrier will be able to say, “ Your damage is £7,500, but you are getting a house worth £5,000 and that must come off the damages that would otherwise be assessed “. That approach has been recognized for years. If honorable senators will look at the Tasmanian legislation, with which I happen to be familiar, they will see that the second thing that is excluded from this item of assessment is the value of any portion of the estate of the deceased person which passes to the members of his family, except insofar as that value exceeds the sum of £5,000. We must have regard to the small estate that accrues to the widow, and prevent it from being taken into account by way of deduction from the widow’s damages.
The next omission that I criticize is that no provision is made to ensure that a widow’s pension, or repatriation benefits, which accrue by virtue of death, shall not be taken into account as a deduction from the widow’s damages. Three or four years ago the High Court decided that the value of a widow’s pension should be deducted from damages of this type. I first endeavoured to have a corrective amendment passed through this Parliament, but the narrow view that it was beyond power was taken. So I went to our own State Parliament, and the result can be seen in the 1955 statutes of Tasmania. Section 10 of the Fatal Accidents Act was amended by the insertion of a provision to the effect that in assessing damages in any action under the act no account should be taken of -
Any sum paid or payable by way of pension, benefit, or allowance under -
It is a matter for consideration whether or not the clause should provide for the exclusion from consideration of a modest amount of the estate - I would suggest that £5,000 is the appropriate figure to-day - as well as social service benefits and repatriation benefits.
– Apropos of Senator Wright’s reference to widows’ pensions and social service benefits, I might mention that the courts, in assessing damages for injury or death, have taken into account - by way of reduction - social service benefits, such as a widow’s pension, that are, or are becoming, payable to the person claiming damages. Whether it is just that such benefits should be taken into account is a matter on which there is room for a difference of opinion. Some State legislatures have, for the purpose of State law, provided that such benefits shall not be taken into account.
So far as the Commonwealth legislation is concerned, the question affects other legislation as well as the present bill, and is receiving the attention of the Government as a matter of general principle. Pending full consideration of the matter the Government is not prepared, in this bill, to give a direction to the courts in respect of this matter.
– That does not answer my question regarding the estate.
– - The honorable senator made a further point about a possible £5,000 exclusion in respect of estates. That matter could be looked at, and I assure the honorable senator that I will do that.
.- I do not want the clause to pass before the Senate adjourns, so I would just say that if the Government takes the view that social services should not be excluded it is very unjust to exclude superannuation benefits. Superannuation benefits may amount to thousands a year. A widow’s pension is much less. Though both come from the public treasury there is real injustice in excluding the fat superannuation benefit and refusing to exclude the widow’s mite, in the form of a widow’s pension.
– Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Chairman do now leave the chair and report to the Senate.
Question resolved in the affirmative. (The Temporary Chairman having reported accordingly.)
The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid). - Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Senate do now adjourn.
Question resolved in the affirmative.
Senate adjourned at 10.31 p.m.
Cite as: Australia, Senate, Debates, 17 March 1959, viewed 22 October 2017, <http://historichansard.net/senate/1959/19590317_senate_23_s14/>.