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Column 52310.43 am
Mr. John Evans (St. Helens, North) : I congratulate my hon. Friend the Member for Leigh (Mr. Cunliffe) on his good fortune in winning a place in the ballot. In my 15 years in the House, despite entering every ballot for private Members' Bills at the beginning of every Session, I have never featured in the first 20.
More importantly and more significantly, I congratulate my hon. Friend on his Bill. I am certain that almost every hon. Member--especially, I hope, the Minister--will welcome my hon. Friend's initiative and his Bill. I am certain, too, that almost every hon. Member will recognise that, if my hon. Friend is successful in placing his Bill on the statute book, he will alleviate much of the misery that has occurred for many years.
I agreed with my hon. Friend when he said in his significant speech that most people are outraged by the spectacle of wealthy celebrities being awarded up to £1 million, because it was alleged that their feelings or their reputation had been damaged. I do not suggest that they should not be entitled to such damages, but, on the other hand, we read of people who have lost limbs, their eyesight or in some cases their lives, being awarded sums which can often be described as derisory.
I shall concentrate on a relatively small number of women who have suffered injury, pain and in some instances considerable heartache as a result of being fitted with a faulty intra-uterine contraceptive device, and who will benefit greatly if the Bill is passed. My personal involvement in the issue started in October last year when a constituent brought the problem to my attention. The device I am referring to is called the Dalkon Shield. Members of Parliament are often not especially aware of issues until they are advised by a constituent through one of our advice bureaux. The Dalkon Shield is a contraceptive device manufactured by an American company called Robbins. When I investigated its background, I discovered that it had been in use from 1970, but was withdrawn from the market in 1974 because of the problems that it was beginning to cause women who were fitted with it. However, because of an appalling set of circumstances in which the problem was not brought properly to the attention of women everywhere, it is believed that some women continued using the device until well into the 1980s.
The device was found to cause injuries in women, such as inflammation, toxic shock, infertility, septic abortions and miscarriages. The device was not only injurious to women, but was a faulty contraceptive--it could not even do the job that it had allegedly been designed to do. It was recognised in the United States that it had caused the deaths of a number of women.
It is estimated that some 3.8 million of these devices were fitted in 80 countries around the world. Obviously, there is a great need for such a device. Women thought that it was the solution to an age-old problem, but, in fact, it caused them even worse problems. It is estimated that in Great Britain some 10,000 women have been fitted with the shield and many of them are now suffering. Indeed, worldwide it is estimated that more than 200,000 women were affected by the use of the Dalkon Shield.
When the matter was brought to my attention in October, the point was made that the manufacturers in the United States had admitted liability, but had placed a deadline by which claims could be lodged with them. That
Column 524deadline of 31 December 1988 was rapidly drawing nearer, and thousands of potential victims in Britain had failed to register their claims. The problem was that not enough women had been made aware that possible compensation existed. In many cases, in fact, women were not aware that the intra-uterine device was the cause of their problems and of their injuries. It was still being left to chance that women would become fully aware of the position. After all, many women did not even know that they had been fitted with a Dalkon Shield. They knew that they had had fitted an intra-uterine device, but they were not aware that it was the Dalkon Shield. In many cases, of course, it was not possible to find out because the medical records had been destroyed.
It was obvious to me that women had to be alerted to the existence of the compensation fund set up in the United States by the shield's manufacturers. It was simply not good enough that such an important matter affecting the health of several thousand women should be left to the chance that the initiatives of individual Members of Parliament would ensure that they received justice. Through parliamentary questions I pressed the Department of Health to alert women to their compensation rights. On 31 October I tabled a question asking the Secretary of State for Health :
"if his Department will initiate a public information campaign to inform women of any rights they may have in regard to any injuries caused by the Dalkon Shield contraceptive device.""
The then junior Minister, the hon. Member for Derbyshire, South (Mrs. Currie) replied :
"No. The Dalkon Shield contraceptive device, which was manufactured in the United States, is currently the subject of compensation litigation in the United States courts. I understand that those courts directed the manufacturer to publicise the procedures and the court subsequently expressed satisfaction with the way the company complied."--[ Official Report, 31 October 1988 ; Vol. 139, c. 489-90. ]
The fact that the matter had been publicised in the United States and met with the satisfaction of the American courts does not necessarily mean that it would be satisfactory to the British courts or that the matter has been sufficiently publicised in Great Britain.
I urged the Department to reconsider its decision not to launch a public information campaign, but the Department refused to do so. I then asked the Department to instruct regional health authorities to launch publicity campaigns in their local media, but again the Government refused to issue any such instructions.
Mrs. Alice Mahon (Halifax) : To add to the list of things that I know my hon. Friend tried to do to help those women who have suffered as a result of the Dalkon Shield episode, may I say that many of us, including myself, asked our local health authorities to issue information, but the answer was just as negative. Presumably they were acting on instructions from the Government.
Mr. Evans : I am grateful to my hon. Friend for making clear the negative attitude of so many regional health authorities and the fact that a number of hon. Members attempted to obtain justice for women and publicity for the cause.
To its eternal credit, one regional health authority, the West Midlands, launched a public information campaign, which was extremely successful. It traced all women in its area who had been fitted with that shield and I am sure that hon. Members will appreciate that it was no coincidence that one third of the claims submitted to the
Column 525manufacturers from Britain by December last year came from the west midlands. The publicity campaign worked and women in that area who had been affected and injured had the compensation fund brought to their attention.
Just before Christmas there was a programme on London Weekend Television which featured the Dalkon Shield. That programme elicited a massive response from the region. Hundreds of women rang in and jammed LWT's switchboard. They asked for help, but the matter has still not been taken up nationally.
As my hon. Friend the Member for Halifax (Mrs. Mahon) has said, no other health authority chose to follow the example of the West Midlands regional health authority. I wrote to my regional health authority, Mersey, and asked it to run an advertising campaign for the benefit of my constituents and others within the region. The regional authority twice refused my request. Sir Donald Wilson, regional chairman of the health authority, wrote to me on 16 November and said :
"In Mersey Region we have issued a press release that we hope"-- I stress "hope"--
"will be taken up by newspapers and radio giving this information and also announcing a telephone hot line to the Medical Department in the Region for personal enquiries."
I could not help wondering whether if the families of those who run our health authorities had suffered pain and suffering and heartache from the device, members of those authorities would have been so content for the future of their loved ones to rest on the chance that the media would be interested enough to pick up a press release. I carried on my campaign in the region and I received a fair amount of publicity. I wrote to Sir Donald Wilson again on 22 November and I made it clear to him that :
"I am informed by the West Midlands Regional Health Authority that as long ago as 1986, a local advertising campaign was initiated, at a cost to the Authority of some £5,000."
Surely all of us recognise that £5,000 is absolute chickenfeed compared with the budget of a health authority. That money had made the facts about the Dalkon Shield clear to women who might have been fitted with the device and requested them to write to the authority for further information. In my letter I suggested that the Mersey regional health authority should contact the West Midlands RHA to find out the details of the campaign and the response to it because I knew that more than 1,000 women in that region had responded to its initiative. I received an interesting letter in reply from the regional medical officer who said :
"Sir Donald has asked me to thank you for your letter of 22nd November and to compliment you on bringing the Dalkon Shield deadline to attention on the radio."
The authority thanked me for my initiative, but how much better it would have been if that authority had launched an initiative and brought the matter to the attention of women everywhere.
It is estimated that about 10,000 British women have suffered from the Dalkon Shield and it is obvious that a substantial proportion of those women live on Merseyside. In many cases terrible injuries have been suffered by women, and many physical and psychological problems have been created by the device.
I am happy to say that the deadline for claims has now been extended to 1 July this year. I am sure that everyone will welcome that development, but the fundamental issue has still not been addressed. It is difficult to contemplate how those women who have not discovered up till now
Column 526that they are entitled to claim will subsequently discover it by 1 July, unless a campaign is launched by the Government and by regional health authorities.
Even at this late hour I appeal to the Minister to respond and, if not launch a national campaign, to instruct the regional health authorities to conduct such a campaign so that every woman can be alerted to the likelihood that she may be able to claim from the fund that has been established by the manufacturers of the device. I hope that some publicity will flow from this debate, and if it does my hon. Friend the Member for Leigh will have performed a public service.
I stress, however, that even if women are alerted and register their claims they still face the prospect of legal battles in courts several thousand miles away. It does not follow that because they register their claims all their problems are over--another set of problems might arise. I am sure that everyone agrees that money alone cannot genuinely compensate for the constant pain and psychological trauma caused by miscarriages, which many women have suffered as a result of the shield. I submit that it falls on the Government to do all in their power to alleviate such suffering by ensuring that women are alerted to the likelihood of compensation.
The Bill is an obvious response to the dilemma faced by the women who have been caught up in the Dalkon Shield scandal. Once the deadline of 1 July is passed and women subsequently discover that they have suffered their injuries and problems because of the Dalkon Shield, they will have lost their rights to claim because they did not register by that deadline.
As I said earlier, the records of some of the women affected will never be traced. The arguments for a no-fault system have been put eloquently by my hon. Friend the Member for Leigh. They have been put on previous occasions and, no doubt, most hon. Members support that argument. It seems only right that women who have been injured by contraceptive coils--the Dalkon Shield is not the only offender--should receive automatic compensation once the device has been found to be the cause of the injury.
I am grateful to have had an opportunity to present this case on behalf of women who have suffered grievous injury. I commend my hon. Friend on the measure. I wish him well in Committee and I hope that the Bill passes on to the statute book. It will certainly receive a great welcome from thousands of women who have suffered grievously from the device.
Mr. James Arbuthnot (Wanstead and Woodford) : It is impossible to listen to the accounts of the horrible injuries suffered by so many people in so many different circumstances and not feel moved. It is also impossible to hear that damages of £3,500 have been paid for the death of a child without asking how that sum could possibly compensate for it. However, we are here to legislate and the legislation that we produce must not be a gut reaction to tragedies. It must attempt to analyse the problems and to provide answers to them.
The hon. Member for Leigh (Mr. Cunliffe) talked about the appalling case of the woman who was awake for 40 minutes and suffered great pain while undergoing an operation and who has since suffered appalling
Column 527psychological consequences. However, it is not enough for him to talk about that without showing how his Bill would assist in such cases.
As I have just said, £3,500 cannot compensate for the death of a child, but how can £10,000 be sufficient compensation for it? No figure would be high enough. Any figure that compensates purely for death has to be an arbitrary figure. The hon. Member for Leigh called for a realistic assessment, but there can be no realistic assessment of bereavement damages.
Mr. Arbuthnot : I have a two-year-old son. If he were to die, £3, 500 could not compensate for it ; but nor could £10,000 or £10,000 million. The higher the figure of bereavement damages, the more I would be likely to have the uneasy and unhappy feeling that I had profited from his death. For that reason, bereavement damages have to be not only arbitrary but token.
Several Hon. Members rose--
Mr. Arbuthnot : I accept that point and my argument could mean that. However, there is a place for nominal, arbitrary and token damages to recognise, as nominal damages do in other cases, that damage has been suffered.
I accept that the House may disagree with me and feel that the damages figure is too low. However, if it does feel that, there is no need for new legislation to increase the figure. Under the Administration of Justice Act 1982 the Lord Chancellor already has the power to increase the figure. I recognise that he has not used that power and I think that he is right not to do so. However, there is no need for new primary legislation.
Another point that arises is whether bereavement damages should be payable to a wider class of people than at present. I think not. The death of a close relation is not the time to conduct an inquiry into the closeness of that relationship which, in one case, the contents of the Bill would necessitate. That is even more so if, as I believe, bereavement damages should be arbitrary, nominal and token. We have heard about the insurance consequences. We cannot consider legislation in isolation from the consequences of it. If the consequence of the Bill is that damages will be increased--however laudable that may be--inevitably insurance premiums will increase. The hon. Member for Leigh rightly and openly accepted that in his speech. The consequence of an increase in insurance premiums would be that fewer people would take insurance.
Mr. John Evans (St. Helens, North) : On a point of order, Mr. Deputy Speaker. I understand that the hon. Member for Wanstead and Woodford (Mr. Arbuthnot) is a member of Lloyd's. Can he inform the House whether he has an interest in this matter?
Mr. Arbuthnot : I have an interest, and I was about to mention it. Another consequence of increasing damages is that insurance might become less available to certain types of profession or product. That would mean that people who were injured--
Mr. Deputy Speaker (Mr. Harold Walker) : The requirement is that if an hon. Member has an interest, direct or indirect, in a debate or proceedings before the House he should declare it. The hon. Member for Wanstead and Woodford (Mr. Arbuthnot) has said that he intends to do so.
Mr. Arbuthnot : If the consequence of an increase in insurance premiums and damages is that insurance becomes less available for certain types of profession or product, it will decrease the protection available to the consumer.
The hon. Member for St. Helens, North (Mr. Evans) rightly said that I have an interest in insurance. I do have an interest in that I am a member of Lloyd's. However, the hon. Gentleman suggested that it was ridiculous to suppose that it would be the directors of insurance companies who would suffer. It will not be insurance companies or their directors who will suffer and their profits will not be affected. If insurance premiums increase and insurance becomes less available, the consumers--the people in the street--will suffer as they will not be protected by insurance.
Mr. Cunliffe : The hon. Gentleman has made a point which comes from a vested interest. He emphasised that the profits of insurance companies will not decrease. Opposition Members understand that. I have been fair in offering time for an adjustment by the insurance companies of their premiums. I do not believe that it will deter people from taking insurance. We are simply trying to legislate for reasoned financial justice. I accept that it is an arbitrary figure. How does one assess, and society recognise, the right sum for the loss of a child? The claimant, if he feels inclined, can choose to do something that places a premium on death or suffering. Although compensation is not in some ways compatible with death, people have rights and they can make the claim even if they give the compensation to a drink-drive charity fund or set up some form of trust to avoid the very matters that form the crux of the Bill--any form of personal injury, accident or loss of quality of life.
Mr. Arbuthnot : The hon. Gentleman's intervention was obviously made from the heart, and it covered several different points. I shall deal with insurance rather than bereavement damages, from which I have moved on.
The hon. Gentleman suggested that I spoke from a vested interest. In fact, if he analysed what I said he would see that I was speaking against my interest when I said that the profits of insurance companies would not be affected by the Bill. Since I was speaking against my interest, it was not right to suggest that I spoke from a vested interest.
Column 529As I have maintained, under a regime in which insurance premiums went up and insurance was less available, it would be the consumers who suffered.
The question of insurance relies very heavily on the assumption that damages will rise as a result of the Bill, which was its apparent aim. However, that aim will not be achieved by the Bill because it is hard to see how merely establishing a board will affect the level of damages. The Bill does not instruct the board to increase damages and, unless the House gives the board that instruction, in theory damages will be calculated on exactly the same basis as they are now. Therefore, if the Bill will not necessarily increase damages, will it, as is hoped by those who sponsor it, increase and improve the consistency of awards of damages?
Will the Bill increase or improve the consistency of damages? The present system achieves consistency in damages in two ways : the application of established principles by experienced judges in the courts ; and if that goes wrong, by the supervisory role of judges on appeal. I ask the hon. Member for Leigh how the establishment of a board would improve the present position.
The trouble with schedule 2 of the Bill is that it aims for standardisation, which creates two difficulties. First, no two cases are the same--each case involves pain, suffering, loss of future and past earnings, loss of amenity, cost of treatment and many other matters. The court already takes into account all those factors when assessing damages.
The second difficulty is that, frankly, the Bill's attempt to standardise certain forms of injury is not a success. For example,, it is impossible to discover a suitable figure for injuries involving visual impairment of both eyes without the scope of a figure being so wide as to be meaningless.
On page 9, paragraph 12, on the subject of "Mental and Behavioural Disorders," the Bill's drafters have simply given up. If one turns the page to find out what is meant by mental and behavioural disorders and to see how the Bill analyses those matters, one finds a blank page. There is no breakdown of the categories.
It has been suggested that the Bill will save time and costs--a figure of up to £100 million a year has been suggested. I am sorry, but it will not do so. When the courts consider the level of damages, they will have to take into account not only the points raised by the Bill but all the other points to which I have referred. The Bill cannot remove the relevance of personal circumstances or medical evidence, however much it might wish to do so. It will not save costs or time.
Although entitled to take into account actuarial evidence, the courts choose not to do so because they have their own system of multipliers. It has been suggested that actuarial evidence is correct, or more accurate, but it cannot be said that either system is correct or accurate. Both have to rely on relatively arbitrary guesses. However,
Column 530one point in favour of the present multiplier system is that it is simple and, in general, more consistent than actuarial evidence. The hon. Member for Leigh suggested that actuarial evidence would be better and more accurate. If that is so--which I doubt-- it would be at the expense of simplicity and consistency, which would not be an improvement. It would certainly increase the costs of
litigation--something that the hon. Gentleman wants to avoid. The Bill is full--one might almost say fraught--with good intentions. However, it does not achieve even its limited aims and should not be given a Second Reading.
Mr. Robert Litherland (Manchester, Central) : I congratulate my hon. Friend the Member for Leigh (Mr. Cunliffe) on introducing the Bill. I also congratulate him on the way in which he presented the Bill with deeply felt passion. When he referred to individual cases it was with deep and genuine emotion and we could not help but be moved--especially by the constituency cases to which he referred. My hon. Friend said that the present system was designed for the rich, not for the people whom the Bill is intended to assist. I wish to refer to the case of one of my constituents--a young man called Martin Foy. He was nineteen and a half years old, mentally disabled and being cared for at Calderstones hospital near Blackburn. His father received a telephone call telling him that Martin had suffered an accident when falling off an armchair. He was told that it was nothing to worry about, but Mr. Foy was worried and went into Manchester, where he missed the last bus to Blackburn. First thing the next morning he shot off to Calderstones hospital hoping to see his son.
When Mr. Foy arrived at the hospital he found that his son had been moved to Blackburn infirmary. He then discovered that his son had not hurt his neck, as had been suggested, but had a fractured spine and a complete severance of the nerve connection at the point of fracture. The specialist informed Martin's parents that the fracture was the result of a violent injury.
For several months Mr. Foy was under the impression that Martin had fallen off a chair, but after he had made numerous inquiries it was revealed that Martin's spine had been fractured while he was being restrained. Nurses and officials at Calderstones hospital gave conflicting versions of what had happened. It was never established how many nurses were involved : some reports said that one nurse, who had been under domestic stress, had dealt with Martin that night. I have asked why Martin was not sedated if his behaviour was violent, but have received no adequate reply. Why were the parents kept in the dark?
We have the word of medical personnel against that of a mentally disabled young man, now completely paralysed. That young man cannot speak for himself, and the solicitors are therefore having a very hard time in trying to equate possible compensation with his injury--if there is ever to be such compensation.
We can only try to understand what a traumatic experience this has been for Martin's parents. As they now have no faith in the hospital, they took Martin home to care for him themselves. The result was a massive strain on their financial and physical resources. Mr. Foy lost his job and suffered heart attacks ; Mrs. Foy's health also suffered.
Column 531They bore the burden, however, with a dedication and determination that won admiration from all who knew them.
Mrs. Foy wrote me a letter, saying :
"I am writing to you because you have been so kind and helpful to my family since our son had this terrible accident in Calderstones Hospital.
I am sure you know that my husband has had a very severe heart attack and is in Manchester Royal Infirmary, having been transferred there from North Manchester General Hospital.
He is to have a pacemaker fitted and the Consultant has told me that he will never be able to be an active man again.
I am sure that all the worry about Martin and about the Court case has helped to make my husband ill and contributed to his heart attack. The terrible thing that has happened to Martin has now affected all our lives."
We pose the question : how do you compensate for that?
I contacted the Secretary of State for Health and received a reply from the then Parliamentary Under-Secretary of State, the gist of which was that the case should be dealt with through the legal channels. The Under-Secretary would not intervene. He apologised, however, for what he described as an unsatisfactory reply. I wrote to the Prime Minister, who replied that words were inadequate to those who had suffered so much, and offered her deepest sympathy. She wrote :
"I do appreciate the agonies which Mr. and Mrs. Foy must have gone through since their son, Martin, was so badly hurt and I can well understand their concern to discover the circumstances in which this tragedy happened. I know that words are of little value to those who have suffered so much but I hope that you will pass on to Mr. and Mrs. Foy my deepest sympathy."
Understanding and sympathy, however well intentioned, could not alter the circumstances of Mr. and Mrs. Foy. They are not rich people, and their son's irreversible injury has made them so much the poorer. The Bill aims to allow an independent board to give judges an idea of public feeling--and there was considerable public feeling in the Foy case. I am sure that public feeling about the level of compensation for
"suffering and loss of quality of life"
would have been welcomed by the Foys.
The definition in clause 3 of loss of quality of life would have been both interesting and testing in the case of Martin Foy. What was his quality of life, as a mentally disabled person, before the injury that caused him to become paralysed while in hospital? What of the damaging effect on the whole family's quality of life?
If the Bill can alleviate the pain and assist the lives of my constituents, the Foys, I congratulate my hon. Friend the Member for Leigh on having the foresight to present it. It is worthy of support from both sides of the House. The Foys do not want compensation ; they want money only to give their son some comfort. We have heard the voice of compassion from my hon. Friend, and we have listened to the voice of vested interest in profit from the hon. Member for Wanstead and Woodford (Mr. Arbuthnot). I know which side I shall be voting for.
Mr. Menzies Campbell (Fife, North-East) : I, too, begin by congratulating the hon. Member for Leigh (Mr. Cunliffe) on winning his place in the ballot, and--perhaps more significantly--on the reasoned, moderate and
Column 532sensible way in which he introduced the Bill. It is notable that he has attracted if not unanimous support, none the less support from both sides of the House.
If this were a Third Reading debate, I confess that I might have some difficulty in supporting the hon. Gentleman, but he has been so receptive in his response to questions about elements of the Bill as drafted that I feel confident that any imperfections that I may see in the measure are entirely capable of being removed as it proceeds through the House.
Such criticisms and observations as I am about to offer are not theoretical. I declare an interest, in the sense that I have appeared both for and against persons seeking damages whose right to claim damages, and the amounts that they would be entitled to claim, would have been affected by the Bill. I have also appeared both for and against insurance companies. That takes me naturally to what was said by the hon. Member for Wanstead and Woodford (Mr. Arbuthnot). I understood the hon. Gentleman to be saying that the Bill, if passed, would affect insurance costs. When a court awards damages, it does not take acount of the fact that insurance is available. It takes no account of the consequences for insurance costs of a particular level of damages. If it did there would always be compelling arguments for never raising the level of damages, as to do so would be to raise the level of insurance costs.
One of the more significant features of the development of the law on compensation in recent years has been the recognition that it must take account of the level of inflation. For some time, even after inflation had begun to assume dramatic proportions, the courts declined to take it into account, but eventually they were persuaded that that was inappropriate and indeed unjust. There is now an obligation for damages, while not reflecting exactly the retail prices index, to take account of inflation. Clause 7 recognises the position in Scotland since the passing of the Damages (Scotland) Act 1976 and, by implication, approves of that change. I understood the hon. Member for Leigh expressly to approve of that change and its consequences for Scotland.
Prior to that change, a relation of a deceased person claimed solatium, which was no more than pain and suffering. Now, an award is made for loss of society, which, as its terms clearly show, embraces wider considerations than the grief that a spouse might feel about the death of a husband or wife. It embraces issues such as companionship, and, for children, the absence of guidance and stability in the formative stages of development.
The expression "bereavement damages" is more restricted in itself and the concept that it must necessarily encompass. It is much more restrictive than "loss of society", and on one view may be said to give little colour to what is intended. As hon. Members have made clear, giving damages at a certain level does not bring a deceased person back to life. Nor, in the case of personal injuries, does it restore one's condition before the accident.
If the hon. Member for Leigh is satisfied that loss of society has proved a successful concept in the law of damages in Scotland, is there not justification for considering whether it should be adopted in English law? It has worked well in Scotland. Initially, there was a hiccup, because when awarding damages judges interpreted loss of society as being approximately equivalent to solatium. Dingwall v. Alexander established that loss of