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society means more than an award for pain and suffering. Since that decision, the concept has been sufficiently flexible to allow a gradual and legitimate increase in awards made under this head. I accept that clause 6(4) should try to fix a minimum award, but I ask the hon. Member for Leigh to consider why it is necessary to impose a maximum. No matter how many people may be sufficiently closely related to be entitled to bereavement damages or loss of society, the value of a death is being fixed at a maximum of £50,000. That is unattractive in principle and many families would find it repugnant because it would fix an arbitrary ceiling on the value of a death.The hon. Member for Leigh referred in detail to the constitution of the board and the introduction of lay representation. The hon. Gentleman accepts and understands that in Scotland civil jury trial is available to people seeking damages for personal injury. It is with some regret that those familiar with practice north of the border have observed the terms of the consultative document issued by the Lord Advocate and Secretary of State, which seems to suggest that the right to civil jury trial should be withdrawn. I hope that those who will consider responses to that document will read today's proceedings. Many of the speeches and observations that have been made bear directly on the issue that will have to be canvassed if that right is withdrawn.
Under the Bill, there can be one solicitor and one barrister from England on the board, and the separate Scottish legal jurisdiction may be unrepresented. Given that the hon. Member for Leigh has recognised the merits of the Scottish system, he may think it advantageous to allow a legal practitioner from Scotland to be on the board.
Mr. Frank Doran (Aberdeen, South) : There may be scope for a separate Scottish board.
Mr. Campbell : As the hon. Gentleman says, there may be scope for a Scottish board.
Clauses 3 and 5, which deal with amounts of compensation and actuarial evidence, are more than overdue.
Mr. Robert Hughes (Aberdeen, North) : Does the hon. and learned Gentleman accept that, instead of having a separate Scottish board, it would be better to have a United Kingdom board? It would be nonsense if different compensation were paid north and south of the border, whichever side was advantaged or disadvantaged.
Mr. Campbell : I fear that that is the current position. The hon. Member for Leigh is arguing not that compensation on either side of the border should be exactly the same, but that there should be more consistency, which is precisely the effect of clauses 3 and 5. The hon. Gentleman is urging not that courts should be bound by compensation established by the board or evidence from actuarial sources but that they should have regard to compensation established by the board and the actuarial evidence. That is a matter with which the courts are familiar, and they fulfil such obligations on many occasions. The clauses say to the court, "You will continue to have wide discretion, but in exercising it you will have to satisfy an appellate court, if necessary, that you have taken due account of the compensation that the board has
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established or the actuarial evidence." There is nothing unattractive in principle in that suggestion. Indeed, it would lead to more equitable settlements.Observations have been made about the level of awards in the United States. Particular reference was made to awards following the Piper Alpha tragedy. The awards were said to be based on what was rather archly described as a mid-Atlantic settlement. The idea being conveyed was that jurisdictions were competing for damages actions. Actions could have been taken in Scotland, England and Wales or the United States. For reasons that have already been explained, damages awards are frequently higher in the United States. A compromise was reached because those responsible for payment were anxious to make payment against the risk of being taken to court in the United States and having to make higher payments. There is injustice in the idea that the damages to which one may be entitled will depend on the good fortune of whether a decision on whether a person or company has been negligent can be made in the United States rather than Britain. That problem will exist so long as there are competing jurisdictions. We can at least ensure that greater consistency in the competing jurisdictions is found in levels of damages within the United Kingdom.
Notwithstanding my criticisms, which may easily be resolved in Committee, the Bill deserves the support of the House. The calculation of damages for death or personal injury has for a long time followed a restricted path. The use of the multiplier and the multiplicand has frequently been seen to be arbitrary and insensitive. It is necessary that the House should take unto itself the responsibility of reviewing from time to time the way in which damages are awarded to persons entitled to them. The Bill provides a valuable and effective opportunity to do so, and I hope that it will get the Second Reading that it undoubtedly deserves.
11.40 am
Mr. John Garrett (Norwich, South) : I support the Bill and congratulate my hon. Friend the Member for Leigh (Mr. Cunliffe) on bringing it forward. Further reforms are needed, and I agree with the hon. Member for Thanet, North (Mr. Gale), who spoke about no-fault schemes. The Bill paves the way effectively and is about as far as we can go at present.
I feel entitled to speak on this subject because of my fairly extensive experience of personal injury litigation--although, I am pleased to say, in a technical, not personal sense, as I carried out a substantial research project. A few years ago, in a professional capacity, I participated in an exceptionally thorough examination of hundreds of personal injury cases, from accident through to conclusion. I found it a saddening experience and was made aware of many human tragedies. I wish to make it clear that the evidence that I shall quote is from published or personal sources and does not draw in any way on the report to my client.
Every year there are 3 million accidents involving injury in Britain. Within a three-year time limit of an accident, there are some 300,000 formal claims. Each year there are about 30,000 writs or summonses issued in the High Court and 25,000 in the county courts. Fewer than 10 per cent. of formal claims ever reach court. In the High Court 9,000 actions are set down each year, and 1,300 trials go all the way to judgment.
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The two salient features of personal injury litigation are delay and cost. High Court cases take an average of four to six years from accident to conclusion. Even in the county courts, where the amount in dispute is usually under £3,000, the delay is, on average, three years from accident to completion. Amazingly, legal costs in the High Court amount to £70 per £100 damages and in the county courts £175 per £100 of damages. Those delays and costs cause anguish to the plaintiff. They show massive inefficiency in the system and mean that compensation is not available until long after it is most needed, which is soon after the accident.Mr. James Lamond (Oldham, Central and Royton) : Is it not a fact that if there are considerable delays before claims come to court and those claims turn on the evidence of witnesses of the accident, the witnesses' memory will be clouded, understandably, by the passage of time, so sometimes claims may fail on those grounds?
Mr. Garrett : My hon. Friend is right. The Pearson study some years ago on personal injury litigation made that point about the consequence of inordinate delay.
All this inefficiency is paid for by insurance companies, trade unions and legal aid funds, which means that ultimately the costs fall on us who are insured, members of trade unions or taxpayers. The Lord Chancellor's review concluded that the system was inefficient, dilatory and disproportionately expensive.
In personal terms, it is much worse than that. We have heard some very disturbing personal cases described in the debate. I know a young woman who was terribly crippled and ended up with almost total physical incapacity following a road accident. The fault was clear so her case took three years to settle in the High Court. That was pretty quick--at the bottom end of the time span taken by these cases. She had to sit in court while her barrister, who knew nothing of the case, described at length her poor marriage prospects in order to talk up the level of compensation. The barrister for the insurance company played down the consequences of her injuries by saying what a wonderful carer her mother was, so the compensation that she might need would be that much less, and saying that she could always be carried upstairs if she needed to get around the house. There was a talking down of the benefits. In the end, thanks to her legal advice, the young woman got less in compensation than she was offered before the court hearing, because her barrister urged her to pursue the matter all the way to and through the courts, and took £3,000 a day for his advice.
That is not an untypical example of the delays, hassle and humiliation that people suffer when they have to sit in court and hear, for example, their marriage and career prospects and life expectancy discussed. Fifteen years ago, the Pearson commission showed that of those who did not make a claim 20 per cent. did not know how to do so, or did not know that they could claim--that happened in many Dalkon Shield cases--11 per cent. were too upset or found the whole process too daunting and 5 per cent. were just glad to be alive and could not think about the accident, so did not make a case against those who had injured them. At least 100,000 people a year are not getting their rights where fault can be established under our tort system.
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The delay and cost are often unavoidable, because one must wait for the plaintiff's medical condition to stabilise. People's condition deteriorates--for example, arthritis in broken limbs sets in. Doctors take an inordinate time to produce reports on these cases. In the published study to which I referred much is made of the inordinate wait for doctors to produce medical evidence.Waiting for a trial is another thing altogether. It takes two years in the High Court in London before a defendant is supplied with the details of the plaintiff's case and a year in the High Court before a judge can be made available, so there is a queue to get before the court. There are also long delays for a person who has an inexpert solicitor, and there are many of them in this game. Usually, fast progress is made in an industrial injury case when the matter is handled by those groups of solicitors who are known in the trade as trade union firms. They take up industrial injury matters and know how to speed them along. A solicitor in a small town in a rural area may get these cases years apart and be daunted by the prospect of working out how to carry the case forward.
The proposed Compensation Advisory Board should accelerate the process of deciding the quantum of an award and increase the present derisory bereavement award, but there would still have to be proven negligence or fault. I and many others have long maintained that the only long-term solution to the problem is a comprehensive no-fault national compensation scheme. We need such a scheme, under which an injured person is simply compensated for his injuries. There is a fair amount of international experience on this with which I shall deal after I have given way.
Mr. Menzies Campbell : Does the hon. Gentleman agree that the argument in favour of no-fault compensation is at its strongest in what is described as medical negligence cases, where the establishing of negligence is frequently difficult and frequently depends on being able to summon to the assistance of a plaintiff in England, or the pursuer in Scotland, another medical expert who is willing to be critical of the action, or inaction, of the person responsible for the damage to the patient?
Mr. Garrett : Such cases are extraordinarily protracted because of the unwillingness of the medical profession to give evidence against itself. I hoped to work the word iatrogenic, which refers to injuries caused by doctors, into my speech.
No-fault compensation was discussed thoroughly over a decade ago by the Pearson commission, but it ran away from the issue. The best-known scheme for no-fault compensation is in New Zealand and it simply pays compensation for injury by accident, including medical, surgical, dental or first-aid misadventure. The Pearson commission concluded that such a scheme would not be applicable to Britain because New Zealand was an agricultural country. The commission meant the New Zealand did not have many personal injuries-- unless somebody was hit by a runaway sheep, for example.
However, although the commission could not buy the deal of a complete no- fault compensation scheme, it proposed a variant of the no-fault arrangement for road injuries. Of the overall figure of 300, 000 injuries for which a claim is made, 40 per cent. occur on the roads, 40 per cent. are industrial and the rest, increasingly, are medical or similar injuries. The Pearson commission proposed a
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variant for road injuries, in addition to the continuance of the industrial injuries compensation scheme. The Lord Chancellor's review, the most recent work on the matter, never even considered a no-fault scheme. Although a no-fault scheme was discussable a decade ago, it cannot be mentioned today. The Lord Chancellor proposed a scheme for speeding up litigation.We all know why nobody refers to no-fault compensation schemes any more. The reason is the alliance between the pecuniary interests of lawyers and their coincidence with the trade unions, which provide a legal service to their members. I have here a typical trade union journal, published by the National Union of the Footwear, Leather and Allied Trades in my constituency. Quite rightly, the trade union can boast to its members about a series of excellent settlements of industrial injuries, such as a member receiving £100,000 in compensation, or a defective track causing injury and the union getting £920 for the man. A member of the Preston, Glossop and district branch contracted dermatitis and the union got £6,000 for her. Even the back of the journal says that the legal department handled 709 cases and raised in compensation £946,000.
This is a difficult issue because trade unions have done a first-class job for their members for a long time in such matters, and it is a key service. However, many people injured at work are not members of trade unions. Perhaps some of them cannot be members. There are many people injured on the roads who have no access to the expertise of a trade union firm that could push through such a claim.
Mr. James Lamond : When discussing no-fault compensation, does my hon. Friend recall that the last act of the Callaghan Government was to introduce the Pneumoconiosis etc. (Workers Compensation) Act 1979 of which I have some experience because it covered byssinosis in the textile industry? It divided those who suffered from byssinosis into two categories. One category covered those who had no former employer left in business. They received fairly reasonable lump sum compensation without any questions being asked. The second category were those who still had employers in business. They were required to carry out the normal procedures. The trade union, of course, supported them in their claims, but those people felt that they had been dealt with harshly because one group received compensation without being required to prove fault and the others did not. However, the scheme was at least a concession towards the goal that my hon. Friend and I hope will be achieved.
Mr. Garrett : I thank my hon. Friend for his intervention, because I did not know about that case. It illustrates the point that a number of us have been trying to make for some time.
In addition to the excellent proposals of my hon. Friend the Member for Leigh, we now need an updated Pearson commission and a study of the scope for a no-fault compensation scheme. Of course, people would immediately call attention to the cost on public funds. I imagine that claims under such a scheme would probably treble and that there would be 200,000 or 300,000 claims a year carried to the point where they would have gone to court under the present system. The Chancellor of the Exchequer continually boasts of having a £17 billion surplus and one would have thought that even £1 billion or £2 billion would be worth spending on such a system. It
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would not be wholly new money involved because many of the people who receive awards would receive them from public sources anyway. We must return to the question of a comprehensive, national, no-fault compensation scheme. I realise that that may ruffle a few feathers and that the legal profession will not care for it too much, but the case for it is so clear that the least that the Government can do is to set up a commission on it. There have been at least 30 commissions since the war dealing with such litigation, but we need an updated examination of the case for no-fault compensation. Meanwhile, my hon. Friend's Bill deserves a Second Reading because it represents a major advance and can be built on in the future. 11.58 amMr. Kevin Barron (Rother Valley) : First, I want to take up a point raised by my hon. Friend the Member for Norwich, South (Mr. Garrett) about what is not in the Bill. I must say, however, that if the Bill is given a Second Reading and completes its passage through the House, it will be a major step in moving to a fairer system.
Many solicitors and barristers may not agree, but no-fault compensation should become law. I say that because I worked in the coal mining industry before coming to the House in 1983 and that industry has a history of injuries. There have been some unfortunate and sometimes fatal injuries and a history of accidents over many generations. The unfairness of the present system is highlighted in almost every mining community where similar accidents have led to major differences in the benefits paid, because people have been unable to prove negligence on the part of the employer.
My trade union has always argued that no one ever sets out to get injured at work, although it is always difficult to prove negligence on the part of the employer and the payment of compensation is by no means certain.
It is especially difficult to prove negligence in the administering of anaesthetics, for example. It is almost as though a cloak of official secrecy protects those who work in hospitals. It is very difficult to get hospitals to acknowledge that mistakes have been made. As an MP, I have experience of this matter ; there are one or two cases under consideration in my health authority area at the moment. It is difficult to obtain a formal admission of negligence on the part of a hospital employee.
Just as no one sets out to get injured at work, no one goes into hospital intending to come out feeling worse. One can hardly say, "I went into hospital knowing that I would come out worse than when I went in. It was my fault. I was to blame, I could choose whether to go into hospital or not." That is nonsensical. I hope that, before too long, legislation providing for no-fault compensation will reach the statute book so that we can get rid of such anomalies. I support the Bill because it represents an important stepping stone. My hon. Friend the Member for Leigh (Mr. Cunliffe) rightly said that many of its provisions will help people to get round existing problems. He rightly referred to "the obstacle course" that lies in the way of those who seek compensation. Both he and my hon. Friend the Member for Norwich, South referred to one or two of those obstacles. It is important to highlight as often as possible the problems that people face with the legal system, one of which involves finance. Even if someone
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knows how to gain access to the legal system it may be difficult for him to find the necessary finance. In addition, it can take a very long time for a case to reach the court and hence for compensation to be awarded.It has been pointed out that in some instances the legal process is deliberately held back to try to dissuade people from seeking to obtain the compensation that they deserve. We cannot rely on a legal system that allows such things to happen to provide justice for people seeking the compensation that is rightly theirs once negligence has been proved.
Right hon. and hon. Members will be aware that there is much public disquiet about the present system for determining the amount of compensation to be paid once negligence has been proved. That has been said on many occasions--not least by the commissions set up to look into such matters. One of the best comments that I have seen in recent weeks appeared in The Observer on 26 February. It puts into perspective ordinary people's feelings about how sums of money are paid out under the current system :
"But most claims for personal injury compensation are set by the precedent as recorded in the lawyers' Bible, Kemp and Kemp on Damages". A sum of money, plucked out of the air by a High Court Judge becomes the standard award for specific personal injury. Huge awards for damages reported in the papers are the exceptions. Long before they ever reach the courts most cases are settled for small sums based on the precedents recorded by Kemp and Kemp."
People are very worried that a so-called lawyers' bible should determine the amount of compensation to be awarded in injury cases. The Bill goes a long way towards taking such decisions away from Kemp and Kemp. Those on the Compensation Advisory Board will have expert knowledge in all relevant matters, including the knowledge of how the victims of pain and suffering caused by injury feel, and of the degree to which those feelings should be compensatable. The Bill provides for a more broad-brush approach to the problem than we have under the present system, which uses precedent set by High Court Judges.
My hon. Friend should be complimented on clause 1, which would establish the Compensation Advisory board. We have received a briefing from the Association of British Insurers whose members complain that they have been left off the board. As my hon. Friend says, there are three spare places, and there is room for additional experts. The Bill is not carved in tablets of stone--a fact on which I complimented my hon. Friend. If the insurers felt that they could make a good case for being represented on the panel, they could put that argument. I suspect that some other bodies may feel that they should be represented, and they, too, can argue that they should take up one of the three spare places. I hope that we shall be in a position to satisfy all those who feel that they have been left out the drafting of the Bill.
Under from clauses 3 and 5, the evidence collected will have to be broader than in the past. I have an example of what happens under the present system. In some cases negligence may have been proved ; there may be no dispute and it may have been established that an individual's negligence has contributed to an accident. But, as my hon. Friend the Member for Leigh said, even in such cases compensation is decided on the basis of a host of factors, such as the person's age, his possible loss of earnings and so on. Recently, I read in the press about one of the victims
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of the Brighton bombing, who was in his seventies. He was running a business--he was still in work--but the compensation awarded did not take that into account because of his age. There is something gravely wrong with a system that allows the non-payment of compensation to the victim of a gruesome attack even when negligence has been proved. That person was not compensated because of his age. There are many other respects in which the system for awarding fair compensation for the terrible things that happen is defective.One of the main aims of the Bill relates to the actuarial evidence that will be collected. Pecuniary losses such as loss of earnings and medical costs must be addressed in the Bill, and it must also address non-pecuniary losses such as pain, suffering and loss of quality of life.
My hon. Friend the Member for Leigh spoke about a clause in the Social Security Bill that is going through Parliament which says that various social security payments are affected by court awards. I have checked a case that came to my notice in my constituency last week. A person who worked for the National Health Service was recently awarded a lump sum of £2,600 from the National Health Service injury board. She received that award because she was injured at work and eventually had to leave work. She is now a single parent and has been living on state income since 1983. In 1985 she went on to supplementary benefit, which is now called income support. She has been told that she will have to forfeit £1,500 because she was on state means-tested benefit from 1985.
Income support is payment by the state for pain and suffering to somebody who has had an industrial accident and where negligence has been proved. That woman was the victim of an industrial injury and is now seeking repayment of the £1,500. Pain and suffering should be defined in a more formal way and people cannot be blamed for thinking that it is defined on a whim by a judge.
The Bill aims to ensure that as far as possible a person receives compensation commensurate with what he has lost. Some people fear that the way in which the system works means that some people are being under- compensated. I have an example that highlights this problem. A briefing that I have received on the Bill says : "If a twenty year old was injured and suffered an annual loss of £10,000 for the rest of his life, the largest amount of compensation he could receive would be approximately £190,000 for that loss. Although he would probably have forty five to fifty years left to live.
The loss is assessed by taking the injured person's annual loss and multiplying it by a figure. The figure that is chosen is not the life expectancy of the person. The reason being that if the annual loss was multiplied by the life expectancy the claimant would be overcompensated because he would receive a lump sum and the income he would earn on it."
That is obviously true and some people could well argue that somebody had been over-compensated. The briefing goes on to say : "If the twenty year old received a lump sum of £500,000 as compensation for his lost income, he would also have the income he could earn on it.
The courts attempt to calculate the compensation to take into account the fact that income will be earned on the lump sum. The aim is therefore to multiply the claimant's annual loss by a figure which will produce a lump sum which when added to the income it will earn each year amounts to the claimant's loss. The result is that the figure chosen is much lower than the person's life expectancy. The problem occurs because as the Pearson Royal Commission stated the figure chosen is never higher than 18 or 19. The courts arrive at this figure because they assume that
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an injured person will invest the lump sum in stocks and shares. This is because in the past the only way of guarding against the possible erosion of the lump sum by inflation has been to make such an investment, (the price of stocks supposedly takes into account current inflation rates)."--that is not always done--
"Pearson stated that such a method was clearly inadequate and was based on an assumption that the income earned on the stocks will be 4 to 5 per cent. This has led to the maximum being 18 or 19 which can be too low."
Someone in his teens or 20s has good prospects of earnings and in certain cases could be under-compensated. The briefing goes on : "The introduction of inflation proof government stocks in 1981 has meant that the effects of inflation can be dealt with without having to invest in normal stocks and shares. In fact the courts assume that a person will choose the most prudent investment available, working on the basis that it would be wrong to force a claimant to put the money which will be used to provide his medical care or income into riskier ventures. The security given by inflation proof stocks means however that less income is earned on them. The present income rate is (net of tax) approximately 3 per cent."
That is not a high rate of interest. The briefing says : "The difference between 4-5 per cent. (which is the assumption that the courts make) and 3 per cent. does not appear to be that great in terms of percentages. But using the actuarial tables formulated by a working party of lawyers and actuaries the resulting difference in the amount of damages can immediately be seen. Using the example of the man aged 20 who suffered an annual loss of £10,000 for life, using a discount rate of 4-5 per cent. multiplier is 19.8 years, and damages for pecuniary loss would be £198,000. Using a discount rate of 3 per cent (as the net of tax rate of return on index- linked stocks) gives a multiplier of 25.7. The award would be £257,000. In either case, some further deduction might be made to allow for contingencies other than death, e.g. temporary loss of earnings resulting from ill-health or unemployment.
There is therefore a substantial financial difference between the two ways of calculating the person's losses. We feel that because of this people may run out of money with many years of their lives left to run." If the courts persist in using current methods there is no doubt that people will be under-compensated and they may not find that out until later in life. I shall not go into detail about what would happen if there was another stock market crash, but people could not be given a guaranteed return on stocks and shares. Somebody living beyond his 60th year might find that he had been under compensated 30 or 40 years before and that would be disastrous. There are not enough guidelines and the system of using precedents for compensation may not be adequate to cover a person's needs for the rest of his life.
I hope that the Bill will reach the statute book. If my hon. Friend wins another high place in the lottery for private Member's Bills I hope that he will introduce a Bill about compensation for old people who have suffered industrial or medical accidents. We need to bring real justice into the law of compensation because we must treat people as they should be treated and get rid of the lottery in the High Court.
12.18 pm
Mr. Alfred Morris (Manchester, Wythenshawe) : I warmly congratulate my hon. Friend the Member for Leigh (Mr. Cunliffe) on his good fortune in the private Members' ballot. After winning his high place in the ballot, he quickly decided to make some of the most needful people the beneficiaries of his good fortune. He has worked very hard since then in winning parliamentary and public approval for his Bill, which enjoys all-party support and has been welcomed by a very wide range of
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non-political interests : legal, medical and voluntary organisations, both large and small, not least those which work in the interests of disabled people and their families.On this special day for him, I congratulate my hon. Friend also on both the content and manner of the speech with which he opened this important debate. He was strong on issues of principle and flexible on procedure. That combination will have won him further support in all parts of the House and we on these Benches give him our full backing in seeking a Second Reading for his Bill.
This is a private Member's Bill fully deserving of that description. As I quickly discovered when winning the opportunity to legislate as a private Member myself, in the ballot of November 1969, many who win high places in the ballot introduce Bills that are, in fact, Government measures masquerading as private Members' Bills. The private Member's reward for helping Governments in this way is to receive the whole range of help given to Ministers in promoting legislation. Their Bills and speeches are drafted for them. They are briefed on every aspect and detail of the legislation and its effects. Among many other favours, they enjoy not just the benevolence but also the practical assistance of the Government Whips' Office.
That easy road was not chosen by my hon. Friend. In association with Citcom --and I join my hon. Friend in acknowledging the special help of Henry Witcomb--my hon. Friend has put forward a private Member's Bill, properly so-called, which richly deserves the reward of a Second Reading today.
There will be many technical and drafting points to consider in Committee and we on the Opposition Benches will play a full and constructive part in the discussion of any and all suggestions for improving the Bill upstairs. The central issue now is whether the Bill should be allowed to proceed there and I hope both sides of the House will be decisively in favour of its going into Committee. It is now more than 10 years since Lord Pearson published his report on compensation for personal injuries. Since then there has been scant progress towards giving the report any meaningful effect. We are all only too aware of the anger felt by many people about the failure to address the issues raised by the report. They include many issues of great complexity, but one is of fundamental importance, namely, that there must be some action to improve the quality of justice for the individual.
The main thrust of Lord Pearson's recommendations was that there should be radical improvements to the tort system with a gradual extension of no- fault compensation schemes. While the whole question of no-fault schemes merits urgent attention, there is plainly no likelihood of wide-ranging change in the foreseeable future. Meanwhile, many people must still face the need to confront the daunting obstacles that obstruct the path to justice. Even if there is any move towards a no-fault scheme in the short term, it will be of only a limited nature.
There is little prospect of a no-fault scheme that would cover more than medical or minor road traffic accidents and, therefore, the tort system will still have to be used for people who are injured or bereaved by other accidents.
First among the problems they face is that of access to justice. Ability to afford it is often beyond the means of ordinary citizens. Secondly, even if they are able to afford to pursue their case, there is the difficulty of finding a lawyer who is suitably qualified in personal injury and medical negligence.
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Thirdly, there is the problem of delay in achieving a legal settlement, of which the Lord Chancellor said on 4 July 1988 : "Delay, especially in personal injury cases, emerges as perhaps the most serious problem of all."Fourthly, there is the difficulty of proving one's case when the burden of proof so often seems unfairly loaded in favour of the defendant. Fifthly, if all these problems are overcome, the levels of compensation in this country are, as we have heard in the debate, deplorably low.
Again, the handling and financing of multi-claimant cases present particular problems. Right hon. and hon. Members on both sides of the House will remember the struggle that many of the victims of Opren had to obtain the money to sue the drug's manufacturers. Many had to rely on the generosity of a business man to ensure that their voice was heard. Fortunately, their claims were resolved although, as we have heard this morning, they were resolved in an atmosphere of bitter controversy.
One year on from Opren, there are now at least four other major cases involving thousands of people looming on the horizon : tranquilliser users, British nuclear test veterans, women who allege that they have been injured by the Copper 7 IUD device and haemophiliacs who have contracted the HIV virus. Many of these unfortunate people are caught in the trap of inability to sue because they lack the means to do so. They have no prospect even of stating their case in a court of law.
One of the women involved in the Copper 7 case recently spoke out about her own plight and that of the hundreds of other women like her. She has had to have four operations to remove her uterus, ovaries, fallopian tubes and cervix. She will be on hormone therapy for the rest of her life. She believes her childlessness resulted from pelvic inflammatory disease caused by a Copper 7 device. Yet she has been told that she and her husband earn too much for her to qualify for legal aid. She says :
" it seems that there is no justice for the likes of us." Even if they sold their house they would not raise anywhere near enough to meet potential legal costs of £250,000.
I have also had put to me the case of a woman whose life was turned into misery after becoming dependent on tranquillisers after 22 years. She and her husband have life savings of £20,000 and they are not entitled to legal aid. Her husband says that they were devastated to learn of the sums that might be involved and could not even begin to consider taking legal action against a huge multinational drug company, whose resources are enormous compared with their own. Mrs. Teresa Gorman (Billericay) rose --
Mr. Lofthouse rose --
Mr. Morris : I shall give way to my hon. Friend the Member for Pontefract and Castleford (Mr. Lofthouse).
Mr. Lofthouse : My hon. Friend rightly referred to haemophiliacs. Is he aware that of the 5,000 haemophiliacs in this country, 1,200 are already HIV positive following the use of contaminated factor 8 by the Health Service? Is he also aware that 835 people with haemophilia have developed AIDs and that 87 have already died, leaving many widows and fatherless children?
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Mr. Morris : I am deeply aware of those grievous statistics from my work among disabled people. My hon. Friend is eminently right to emphasise their significance in this debate. He and I are talking about very human problems which this House cannot ignore. They underline the importance of my hon. Friend the Member for Leigh's initiative in dealing in his Bill with the low levels of compensation for bereavement and injury and in putting some political heat into this issue.
All of us know from our postbags that the problem the Bill addresses is of deep concern to many people. The Bill has attracted widespread support from over 50 national legal, medical and voluntary organisations. These latter include the Haemophilia Society, the Royal Association for Disability and Rehabilitation, MIND, the National League of the Blind and Disabled and the Spinal Injuries Association.
The Bill deals with the deep sense of injustice and insult which is felt by people who suffer the loss of a member of their family and then find that the value put on his or her life is £3,500 or even less.
I know of a mother and father who lost their son, who was in his mid-20s, in the Herald of Free Enterprise tragedy. They were told that, under the present law, only parents of children who are under 18 could claim. The father is now heavily involved in the Herald Families Association and speaks bitterly about the restrictiveness and narrowness of the law.
The further restriction on the ability of children to claim is even harder to understand. Admittedly a line must be drawn, but few will accept that it should be drawn as tightly as it is. It is also difficult to see any logic in the distinctions which have been drawn between those able to claim under Scottish law and those who can do so under English law. It really ought not to matter whether a fatal accident occurs in Gretna Green or in Berwick-on- Tweed. I believe that, in this delicate area, people should be allowed the choice to decide how they come to terms with a death caused by someone else's negligence. Some may wish to claim compensation ; others may not. The choice should be theirs alone. That is why my hon. Friend has my support in seeking to extend the categories of people entitled to claim and to ensure that there is uniformity beween English and Scottish law.
I also support the Bill's intention to increase the amount available as bereavement damages. Some may argue that there is provision in the Fatal Accidents Act 1976 for the sum to be raised, but the fact is that as yet it has not been increased. On the contrary, it has been eroded by inflation and I am told that its real value has fallen by approximately 40 per cent. to £2,500 since it was introduced. Not only must further erosion be prevented ; the amount must be increased in real terms above its present derisory level. What do we say to the solicitor who complains that one of his most difficult tasks is telling bereaved parents that their child's life has been valued at £3,500? How do we comfort a mother whose daughter was killed by a reckless coach driver and who is told that her daughter's life was worth such a small sum of money? Surely any sum chosen will be seen as reflecting the significance that society attaches to a death caused by the negligence of another person. So my hon. Friend's Bill is an important, albeit limited, first step in the right direction.
My hon. Friend's Bill also tackles a problem that affects people injured in all forms of accident. They range from
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those on the roads to those that occur in the workplace and to accidents caused by a defective product or a criminal incident. The Bill is a response to the challenge from Mr. Justice Hirst which my hon. Friend spoke of with some emphasis when he opened the debate. I make no apology for repeating Mr. Justice Hirst's challenge to the House. He said in reference to the Opren case that both the assessors and the court had been obliged to base their awards on the levels of damages established by legal precedent, which is binding in law, and he went on to say :"There is nothing wrong with critics questioning or condemning these levels, so long as they recognise that only Parliament can change them So long as the present levels remain in force, the Courts have no alternative but to apply them."
That was widely read as a challenge to Parliament to untie the hands of judges. The Bill seeks to deal with the challenge, and it may be our last chance for a long time to alleviate the distress that wholly inadequate compensation can cause.
The Bill would make cases of obviously inadequate compensation less likely, but there is an urgent problem that we must have clarified today when the Minister rises to speak. My hon. Friend the Member for Leigh drew attention, rightly, to the effect that clause 18 of the Social Security Bill, now before the House, will have on reducing damages for pain and suffering. Is the Minister aware how seriously this will exacerbate the problems of people who have been injured? Will he now give a definitive response to the concern which has been expressed about clause 18 in its present form? In doing so, let him reflect on cases like that of the elderly woman, who was left deeply shocked and injured after the Brighton bomb explosion. That may have been the case briefly referred to by my hon. Friend the Member for Rother Valley (Mr. Barron). She spent over a year recovering from the incident. Unable to work, she lost her business. Over four years later the injuries to her leg still cause her intense pain. She frequently falls over and is unable to walk without a stick. The Criminal Injuries Compensation Board, which has to award compensation in line with awards in the civil courts, has offered her £5,000. I have also had raised with me the case of a 40-year-old woman who was involved in a road accident. She was badly injured when a lorry knocked her down and ran over her left leg. She suffered very severe fractures and her leg was also extensively scarred. She fought a two-year battle to save the leg from amputation that involved six operations, one of which was 10 and a half hours long. Ten years later she is still troubled by soreness and discomfort. She walks with a limp. She cannot walk more than one and a half miles without having to rest for the remainder of the day. Her leg is grossly scarred. The judge in her case described its appearance as "grotesque", a fact of which she is all too painfully aware. She has no sensation in the leg, so that she is not aware when the scars ulcerate. The leg injury has resulted in a degeneration in her spine and she suffers from a dull but persistent ache in her back. She has been forced to give up work. Her outdoor hobbies have been reduced, more particularly those which involve playing with her two children.
She was awarded £30,000 : first, for the pain she suffered at the time of the accident and during the operations she underwent ; secondly, for the pain she still has to endure both physically and through the knowledge that her life
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has been so badly devastated ; and thirdly, for the loss she has suffered in being unable to do many of the things which she did before--the loss in her quality of life. Yet her compensation must also cover the extra costs of disabled living. For example, she now has to drive an automatic car which cost her £2,000 more than the standard version. She cannot obtain life insurance. She will have to bear the increased cost of buying a bungalow should she move from where she now lives. When those and the other hidden costs of disability are taken together and costed out over the rest of her life, how adequate is her compensation?It just cannot be right that individuals can obtain libel damages of £500,000 or more for injury to reputation, but only a few thousand--or even a few hundred pounds--for a physical injury that may handicap them for life.
When I heard my hon. Friend the Member for Leigh talk about the woman who received £7,500 for her terrifying ordeal during the birth of her second child, I was reminded of the libel award made to an actress who was referred to by a well-known television critic as being
"an ugly middle-aged rock star whose bum is too big."
The actress received an award of £10,000. I am not, of course, saying that damage to reputation is unimportant, but to most people the discrepancies between libel and physical injury awards are absurd.
Some people will argue that awards in defamation cases cannot be compared with those involving personal injury, because their aim, quite clearly, is to punish the defendants. While this may be true, no one has suggested that juries should be abolished in defamation actions, although there has been the proposal that a jury's power should be limited to stating whether the award should be nominal, middling or substantial. If a public input is to be retained in defamation cases, it should be allowed in what many people regard as the far more serious matter of personal injury.
The Compensation Advisory Board will provide that public input and will include people with in-depth knowledge of the effects of disability and injury. It will provide much needed guidance for the courts. All of us can recall cases where there has been a public outcry over a sentence imposed by a judge. Clearly, there is need for judges to pay attention to public feeling over sentences ; but equally, there is need for some guidance over the level of awards to compensate for loss in an injured person's quality of life. One way of involving public opinion would be to reintroduce juries for public injury cases. The Bill does not take that course. It would only lead to uncertainty in the system with differing awards up and down the country. The board proposed in the Bill provides an element of public guidance as to levels of compensation while avoiding the problem of uncertainty. It should do much to reduce the inconsistencies in awards and settlements, which are a major factor in the sense of injustice many people feel. Far from tying the hands of the courts, it will provide them with comprehensive and up-to-date guidance on levels of compensation. Perhaps more importantly, it will be a valuable tool for the thousands of small firms of solicitors up and down the country who are unable to specialise in personal injury work, in guiding them towards the kind of levels of compensation they should be achieving for their clients.
I turn now to the question of actuarial evidence, the introduction of which I support. In this regard, I must
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