|Previous Section||Home Page|
Column 547remind the House that a working party chaired by Sir Michael Ogden QC, who is also chairman of the Criminal Injuries Compensation Board, and which included representatives of the English and Scottish Law Societies, the Faculty of Advocates and the Bar, as well as of the Institute and Faculty of Actuaries, unanimously recommended that the actuarial tables it produced be used in personal injury cases. I should add that the cost of those tables would be between £3 and £4 from Her Majesty's Stationery Office.
For those unfamiliar with the present procedure for calculating a person's loss of income or the cost of medical care it may seem surprising that actuarial evidence is not widely used by the courts. One would have expected the courts to have taken such evidence into account without being told.
Actuaries spend their lives compiling detailed analyses of people's life expectancy. The insurance industry bases itself on their calculations and many people feel that judges should do the same. There is another area in which Lord Pearson's report--much praised but, as I have said, almost totally ignored--criticised the present system. The report advocated the greater use of mathematics where it could be useful and called for the introduction of periodic payments instead of lump sum awards. Whether or not periodic payments were introduced, there would still be a need, however, to ensure that the existing system of lump sum payments was improved as proposed in the Bill.
Lord Scarman, whose work with Citcom is so widely applauded, has said :
"For more than ten years since a Royal Commission reported on the issue, we have known that we need to act on compensation for personal injuries but we have not done so. I hope this campaign will effectively express the public's impatience."
My hon. Friend's Bill represents action and is the most important outcome so far of that campaign. This is a day of action--positive and humane action--and it is our duty now to show that we share the public's impatience by approving the Bill. I commend it most warmly to the House.
The Solicitor-General (Sir Nicholas Lyell) : I must begin in the sad but understandable absence of the hon. Member for Leigh (Mr. Cunliffe), by congratulating him warmly first, on his success in the ballot and, secondly and with much more substance, on the clear and balanced way in which he presented the Bill to the House. It is fair to say that the Bill raises a matter that is in no sense party political. It has cross-party interest and support, and thoughtful cross-party concern and criticism have been expressed on both sides of the House. There will be universal agreement in seeking to attain the objective, which the hon. Member for Leigh said was high in the aims of the Citizen Action Compensation Campaign, of fair and prompt compensation for sufferers of injuries when compensation is available at reasonable cost.
I congratulate the members of the Citizen Action Compensation Campaign on the energy and enthusiasm they have devoted to the worthwhile cause of trying to help people who have suffered misfortunes and the tragedy that is often associated with personal injury. The Government
Column 548share and welcome the expressions of real concern by members of that campaign and their many supporters inside and outside the House.
The plight of those who have been injured and the distress of those bereaved in large-scale disasters has been highlighted in all our minds in recent times by the apparent amazing series of tragedies and unexpected events. There was the sinking of the Herald of Free Enterprise--where, happily, there was a prompt admission of liability and a prompt offer of settlement--and the fire on the Piper Alpha rig where that was also the case. There was the tragic disaster over Lockerbie, the M1 plane crash, the fire at King's Cross, the explosion at Abbeystead and the train crash at Clapham. What we hear, read and know from experience about such tragedies has brought the subject of the Bill very much to the forefront.
The main distinction between those events, tragic as they are, and the less -publicised, more everyday cases of the pedestrian or motorist injured in a road accident or the pensioner knocked down on the road, is one not of principle but of scale. No hon. Member would suggest that the pain suffered by an individual knocked down on a lonely road at night is any less real than the injuries and tragedy suffered by those who were present on the Herald of Free Enterprise or the relatives of those who died in that disaster ; nor are their injuries any less disabling.
In no case--we appreciate this and it has been recognised by the hon. Member for Leigh--can money compensation undo the harm, but its compensatory effect is naturally of great significance to victims and their dependants when a question of dependency arises.
The Bill deals almost exclusively with the levels of damages payable in respect of personal injuries. However, in considering the subject, hon. Members have ranged more widely and sensibly in order to put the Bill in context. The motives behind the Bill can be applauded and its objective-- fair and prompt compensation at reasonable costs--has the Government's support.
However, I have some words of reservation. The Government have not yet been convinced that the aids to assessment proposed in the Bill would necessarily provide any substantial improvement in the present system. The Government do not oppose the Second Reading. If it is the wish of the House, we are prepared for the Bill to be considered in detail in Committee. The hon. Gentleman has said that there are many sensible matters which could be discussed in Committee.
At this stage, it is right--if for no other reason than to focus the minds of Committee members--to mention the Government's reservations on the Bill, and the methods that it proposes to try to provide extra assistance and support for the assessment process.
Mr. Orme : I welcome what the Solicitor-General said about the Government's attitude and his support for a full examination of the Bill. But where do the Government stand in relation to clause 18 of the Social Security Bill, which relates directly to this problem?
The Solicitor-General : I understand the right hon. Gentleman's question and although, understandably, he was not in the Chamber at the time, he will know that his right hon. Friend the Member for Manchester, Wythenshawe (Mr. Morris) also asked that question. As
Column 549soon as I have made my general comments to the hon. Member for Leigh, I shall respond to that question, recognising that the Social Security Bill is in Committee.
The award of damages that may be made in a personal injuries action is intended to compensate the claimant for any losses that he has suffered as a result of his injuries. It is not a single sum plucked out of the air or a book, but is usually--particularly in the more complex cases such as those mentioned by several hon. Members--a sum made up of a number of different components or heads of damage, each of which will be carefully assessed by the judge according to the individual circumstances of each case. Only the judge, who knows all the circumstances, can make the proper assessment.
The heads of damage that will be recoverable are well established and fall into two broad categories. The losses suffered may be pecuniary and capable of valuation in monetary terms or they may be non-pecuniary, which are obviously incapable of precise valuation, but on which some value must be placed.
Obvious examples of pecuniary losses include the claimant's consequential loss of earnings or--if he works in private business--loss of the profits that he would have made had he not been injured. Such losses include medical and other expenses that he has incurred.
The most obvious non-pecuniary loss or solatium--as I have learnt from Scottish Members to call it--is pain, suffering and loss of amenity of life caused by injury. If the accident has resulted in death, the deceased's estate may recover the pecuniary losses suffered by the deceased, such as medical expenses incurred before his death, and his dependants are entitled, through the estate, to claim for their loss of dependency.
It is fair to say, and I think that it is acknowledged on both sides of the House, that judges have built up a wealth of experience and expertise in the assessment of damages under these heads, though there is an understandable tendency to say that these matters are plucked out of the air or out of the lawyer's bible, "Kemp and Kemp", and that there is no good rhyme or reason for the assessment of damages.
The speech of the hon. Member for Rother Valley (Mr. Barron) indicated in its construction--albeit not in the conclusions he wished to draw from it-- the great detail that goes into trying to achieve a fair assessment of damages in an individual case. If one considers the tools of the trade such as "Kemp and Kemp"--of which the large book I have here is just one volume- -in the context of the very detailed schedule attached to this Bill, which runs to more than 100 items on several pages, one realises the sophistication of the process on which one has embarked. The House will want to reflect on how far a board standing back to consider the matter in, inevitably, general terms can give much assistance to a court which is doing its work properly against a background of existing material.
Mr. Barron : I quoted from a newspaper to show the public perception of how the damages are awarded at present. Kemp and Kemp may be a good authority in legal circles, but the public feeling is that the present criteria should be laid to rest. Public dissatisfaction relates to wider issues than those reflected in legal judgments such as Kemp and Kemp.
Column 550on the subject, will assist public perception and help people to realise that when cases are brought to court they are considered against a background of deep knowledge and understanding. I shall deal shortly with the process of bringing cases to court, which has much to do with promptness and, therefore, with fairness and effectiveness. The sufferer will thus be encouraged to come forward and make a claim.
Mr. Menzies Campbell : Does the Solicitor-General agree that the Bill does nothing to inhibit the judge's ability to exercise his or her discretion? It merely seeks to add two elements--first, a level of compensation determined by the Board, and, secondly, actuarial evidence. Under the Bill, the judge and the sophisticated exercises that have been referred to would have to have regard for those factors. Far from their discretion being limited, it is, if anything, underlined by the Bill, apart from the requirement to have regard to two important elements which seem to demand substantial support in the House today.
The Solicitor-General : I understand what the hon. and learned Gentleman is saying, and I think that, as far as it goes, it is fair and accurate. I think, however, that we must wait and see how the Bill is fleshed out before we can establish to what extent it inhibits the courts. I hope to deal more fully with that aspect in the body of my speech.
Mr. John Garrett rose--
The task of assessing the correct damages in individual cases is far from easy, especially the assessment of elements that are to represent losses not intrinsically capable of expression in money terms. It would be unacceptable to all of us, and to the public at large, for a major disparity to exist between essentially similar injuries that have caused similar degrees of pain. On the other hand, the awards must reflect the severity of the injuries and the degree of actual suffering undergone by the individual.
The necessary balance is achieved through the application of a fund of judicial experience. Although I have not done so recently, I practised for a time in this area of law and had to acquaint myself with that fund of judicial experience. I think that the hon. and learned member for Fife, North-East (Mr. Campbell) would support me in saying that it is profound and detailed, and has been built up and subsequently reinforced by the supervisory safeguard of the appeal court.
The complaints heard most often from accident victims do not usually relate to the amount of damages. The usual ground for complaint is the length of time that it can take after the accident to recover the award and the resulting worry and uncertainty during the wait, as well as--here I pick up the sedentary, and accurate, comment of the hon. Member for Rother Valley-- the disproportionate expense and complexity that may be involved.
Mr. Dave Nellist (Coventry, South-East) : Does the hon. and learned Gentleman accept that for many years compensation has been a major factor for families whose youngsters have been killed on YTS schemes? Until last April, under a scheme analogous to the industrial injuries scheme, industrial death benefit of £52 a week was paid to
Column 551a single parent and £78 a week to parents for the death of a youngster. The scheme finished last April and compensation is not available to parents whose youngsters are killed on the scheme. The abysmally low level of compensation has been a major factor for that group.
The Solicitor-General : I have heard the hon. Gentleman raise that point in the House before, and I am sure that he will continue to pursue it as he thinks appropriate. He will recognise that it is not central to the subjects that we are debating. The hon. Gentleman is dealing with benefits, not damages for pain, suffering and loss of amenity.
Mr. John Garrett : The Solicitor-General made heavy weather of the creation of the board, which will be only an advisory board. I know why he did so--the Prime Minister is wholly opposed to the creation of quangos. If my hon. Friend the Member for Leigh (Mr. Cunliffe) alters the Bill and calls the board an agency, the Prime Minister will be in favour of it. She is in favour of breaking up Government Departments so that they consist of agencies. I guarantee that my hon. Friend will receive the Prime Minister's acceptance of a citizens' compensation agency.
So far, the Solicitor-General has referred to people as male.
The Solicitor-General : There were more profound aspects to the hon. Gentleman's speech. Males and females suffer injury, and if I said only "male" or "female" rather than "people" I stand rebuked. I was dealing with how one brings a case before the courts. The report of the civil justice review, which was published in June 1988, is highly pertinent. Its implementation is being carefully considered by the Lord Chancellor. It made a number of recommendations for the reform of litigation in general and personal injuries litigation in particular. The overall aim of the reform, as set out in the terms of reference assigned to the review body by Lord Chancellor Hailsham, is
"to improve the machinery of civil justice in England and Wales by means of reforms in jurisdiction, procedure and court administration and in particular to reduce delay, cost and complexity."
I do not wish to take an unreasonably long time detailing the reforms proposed by the review from which personal injuries litigants can hope to benefit. The form and order of their implementation is yet to be determined. Nevertheless, it is worth outlining--it is highly pertinent to the Bill's intentions, albeit not to the form in which it is put in the Bill--one or two of the proposals that are likely to interest personal injuries litigants.
The review recommended that a number of steps should be taken to ensure that evidence is prepared and exchanged at as early a stage in the litigation as possible. These steps are to include arrangements for prompt release of accident reports by the police and medical reports by hospitals. Changes to the rules of court are recommended, as a result of which medical reports would be served as soon as possible after the issue of a writ, with the possibility of applying to the court for an order for their production within a specified period. The reports are to be supported by up-to-date statements of special damages and loss of future earnings estimates. The objectives of the review's proposals are to encourage greater openness between the parties at an earlier stage, with the aim of
Column 552encouraging settlements wherever possible and ensuring that each side comes to trial, should trial prove necessary, properly prepared to meet the legal and factual issues which the other side will raise.
Mr. Peter Thurnham (Bolton, North-East) : My hon. and learned Friend talked about delay. Is he aware of the long delays that can occur if a child is damaged at birth and the parents do not qualify for legal aid? The parents may be told that they have to wait 16 years until the child has reached an age when it qualifies for legal aid and can bring a case. Is that not absurd?
The Solicitor-General : Yes. My hon. Friend makes it sound absolutely absurd. However, this focuses on the problem of legal aid which always arises and with which I shall deal later--the margin between the level at which legal aid is available and the level of wealth necessary to pursue a particularly difficult case. I recognise my hon. Friend's point, but I am not sure that the matter under discussion really relates to waiting 16 years for a child to get legal aid for himself or herself.
Another principal aim of the review's recommendations which may be of interest is the simplification of court procedures to render litigation more accessible to the general public. The review therefore recommended the substitution of one method of commencing proceedings for the various methods currently in use--only one line of entry to the courts, without having to choose between a complex variety. The review also recommended increased use of automatic directions by the court, the adoption, where appropriate, of an increasingly interventionist role by the court, the standardisation and modernisation of court forms and the increased availability of advice from advice agencies and lay persons, among a number of other similarly aimed innovations.
The last block of recommendations that I shall mention were aimed at handling cases at the appropriate level in the court system, remedying the present system whereby they are too often handled at too high a level, at unnecessary cost to the parties and causing unneccessary delays in the handling of other business. The jurisdictional reforms are too complicated to outline here in any detail, but it is clear that much thought has been given in the review to reducing court delays and to providing the right sort of forum for each case. It is interesting to those who have looked into the civil justice review--the hon. Member for Norwich, South (Mr. Garrett) had clearly been reading it--that one of the review's proposals was that cases involving up to £25,000 should be capable of being dealt with in the county courts. The figures for 1986 and 1987 suggest that about two thirds of all personal injury cases would be capable of being comprehended in the county courts. There would be easy cross-access to the High Court if the circumstances of the case made it appear more valuable. People would not, therefore, be stuck in too low a court in the probably unlikely event of it being necessary to move up.
I hope that my brief outline of some principal features of the review show that litigants in general--although it is for my right hon. Friend the Lord Chancellor to make an announcement in due course--can hope for significant advances in the speed and accessibility of justice in the near future.
I should like to come to the heart of the Bill--the Compensation Advisory Board. Clause 1 would set up a fairly large new body, to be publicly funded, for the
Column 553purpose of recommending the levels of compensation payable in respect of the pain and suffering and loss of quality of life--solatium in Scotland--attributable to particular classes of injury. The list in the schedule runs to nearly four pages, and is obviously not exhaustive even as regards type of injury, as is recognised in clause 2(1)(b), which allows the Board to make recommendations in respect of other classes of injury. There is also provision in clause 2(1)(c) for recommendations to be made for plaintiffs of different ages, or in different categories. Those recommendations, reviews of them and adjustments based on increases in the retail prices index would be published.
Clause 3 would place the court under a duty to have regard to the published compensation levels. Clauses 2 and 3 will rightly focus the attention of the House--and the attention of the Committee, if the Bill proceeds--on some of the pertinent points made by my hon. Friend the Member for Wanstead and Woodford (Mr. Arbuthnot), who gave an example about eye injuries of a continuing nature. The Bill proposes that the board should cover a great range of suffering and, therefore, of compensation. It would be difficult for the board, with the best will in the world, to give close guidance on all of them.
Mr. Cunliffe : As I have described the board, it would represent a balance and a mixture of interests. It would be right to include in that mixture expert advice from people close to the scene who have considerable experience of personal injury problems and who know how the injured have suffered. That is an imperative in arriving at what we consider to be the just financial awards. The Solicitor-General talks about a large board, but I remind him that the board is not a quango that will go in perpetuity. It will run for the first year on recommendations and in the second year it will tie up the loose ends.
Let us consider the cost of what the Solicitor-General said was a large board. The Criminal Injuries Compensation Board in its last accounting year cost just short of £5.5 million. The fees to board members alone amounted to £916,000, apart from the costs of the administrative staff. I must emphasise that my board, if set up, would not cost even 15 or 20 per cent. of the cost of the Criminal Injuries Compensation Board.
The Solicitor-General : That is a helpful intervention. My comments are intended to focus attention on the real problems on which the board-- however expensively or economically set up--will have to focus. The House will want to be satisfied that the board would be able to provide the judiciary with advice that would advance the cause of the litigant. That is why I picked up the example of visual impairment in both eyes or mental and behavioural disorders, which are broad concepts.
The House will be conscious of the independence of the judiciary, which is one of our country's constitutional principles which has always been jealously guarded. There is common ground that it must continue to be protected, for that protection is vital in upholding high standards in the administration of justice. We must be careful not to proceed in a way that might erode that principle.
Apart from the issues of principle raised, the establishing of a new, non- departmental public body is not a measure to be lightly undertaken, as the hon. Gentleman will recognise. It should certainly not be undertaken without strong evidence of need. The many variables that one sees in the four-page schedule, on which the board's
Column 554recommendations would be based, are among the even more numerous variables that the judges already take into account in assessing damages under these heads.
No two cases raise identical sets of factors, and the judge would always have to consider the individual circumstances of each case, however detailed the breakdown of the recommendations might be. The more detailed the recommendations were, the more difficult they would be for the board to achieve and, in a sense, the more of a straitjacket they might be to the courts.
We have yet to be convinced--although we have minds that are capable of being convinced--that an advisory board would serve a useful purpose and that its recommendations would affect the amounts awarded in individual cases or lead to a saving in time or expense. We should focus our attention on that question because the lawyers among us can envisage that the procedures proposed might in some cases even be used as delaying tactics. I have in mind clause 4, under which parties would be able to apply to have an injury, or particular class of injury, which has not been the subject of a recommendation, referred for a recommendation. It is possible that the reluctant defendant on the look-out for delay might not find it too difficult to present special features of an injury that distinguished it from those already subject to recommendations and thus use the board, in some degree at least, as a means of putting off judgment day or perhaps to make more complex rather than more simple the process of discussion and consideration by the courts.
It would be a pity--unless we are satisfied that what we are doing is correct--to introduce another vehicle for delay-minded defendants in the face of our current endeavours to find ways of reducing the possibility of unnecessary delay.
I know that the hon. Member for Leigh will understand if I answer some of the points raised by others who have spoken in the debate. The right hon. Member for Wythenshawe asked about the recovery of social security benefits from tort damage awards. As the House knows, the matter is being discussed in Committee and hon. Members will not expect me to go into all the detailed arguments that will properly be raised there. The proposal arises first from the 1981 White Paper. Then, in a report of August 1986, the National Audit Office proposed that social security benefits should be recovered by the then Department of Health and Social Security from awards of tort damages.
The National Audit Office criticised the existing system of offsetting a tortfeasor's--a wrongdoer's--liability to pay damages to an injured person by deducting from an award a proportion of the social security benefit that the injured person has received. The National Audit Office said that the defendant should be required to pay to the DHSS the amount deducted from the awards. The position is that when a defendant or his insurer pays compensation for personal injury--whether pursuant to a judgment or an out- of-court settlement--the payer must account to the Department of Social Security for the amount of benefit, as certified by the Department, already received by the plaintiff. This will not apply to small compensation payments of less than £5,000, to which existing rules will apply, or for any period of benefits exceeding five years. I hope that that has clarified the subject of the clause that is being discussed in Committee.
The hon. Member for St. Helens, North (Mr. Evans) asked about the Dalkon Shield. In the years following the
Column 555voluntary withdrawal of the Dalkon Shield from the United Kingdom market, the manufacturers, Messrs. A. H. Robins, have written to doctors on a number of occasions and placed advertisements in the women's press. That information given appeared in an answer given to the House by my hon. Friend the then Parliamentary Under-Secretary of State for Social Security. The decision about funding for local advertising campaigns--for which the hon. Member for St. Helens, North, is pressing--is a matter for individual health authorities, and no doubt the hon. Gentleman will take the matter up with them. Hon. Members have referred to Opren and the comments of Mr. Justice Hirst. As the House will recall, there were claims against the manufacturers Messrs Eli Lilly and others by about 1,400 or 1,500 plaintiffs who were said to be affected by Opren. The important point about that is that there was no admission of liability by the company, and as a result one was not dealing with a sum of money that affected total compensation. Overlooking that point can lead to a rather misleading impression in the context of the Bill.
The company had offered a global sum of about £7 million, including £2.5 million for costs, and the plaintiffs' solicitors had set up an informal apportionment scheme to distribute the settlement among the 1,400 applicants who considered that they had been affected by Opren. Apparently, most of the plaintiffs accepted the award under the scheme, but about 30 of them challenged the amount of their awards on a summons to Mr. Justice Hirst and the judge remarked that the assessments had been made in accordance with awards by the courts in such cases. I understand that he set up his own arbitration scheme for the 30 objectors and that not all of them have been disposed of. As I have said, there was no admission of liability in that case and the global figure of £7 million recognised some discount, although we do not know how much, for the hazards of litigation and the acceleration of payment. In the context of the debate, to some extent the case highlights the fact that it is rather difficult to focus one's mind on individual figures.
The next matter that I shall deal with was raised by my hon. Friend the Member for Thanet, North (Mr. Gale), in some detail by the hon. Member for Norwich, South by the hon. Member for Rother Valley (Mr. Barron), and by some other Members who talked about no-fault schemes. Those schemes have been debated in the House on other occasions and I do not want to go too far into the matter, except to say that it seems to have taken up about one third of the debate. No-fault schemes always seem extremely attractive in prospect until one looks into them in detail. That is not to say that they should not be further looked at in detail, and hon. Members will want to look closely at them.
The principal attraction of no-fault schemes is that they are seen as providing standard compensation more promptly and at lower cost than fault- based systems. They have been shown to have--certainly in Sweden and New Zealand--rather serious disadvantages, not least that they can prove more instead of less expensive to administer. They also tend to provide inadequate levels of
Column 556compensation and sometimes cause undesirable relaxation in the duty of care--a problem has arisen in New Zealand about which people there have publicly expressed disquiet.
While fault may no longer be the criterion by which claims must qualify, there remain some important distinctions that lead to a great sense of unfairness between sufferers who are entitled under the schemes and those whose sufferings may be no less painful but who are not entitled under the schemes. There are new distinctions between, for instance, those suffering as a result of medical accident and those who are congenitally ill or ill because of some infection, or those suffering from the ill effects of treatment which has not fully succeeded but where there is no question of negligence.
There can still be long and detailed arguments in court or at an appropriate tribunal that are very agonising to the sufferer and that will lead to his being denied compensation. As I recall, when this was last raised in an Adjournment debate which I answered, the end question was, "Do we compensate everybody for everything?" The answer that is usually given is that we try to do that by way of a comprehensive social security scheme, which, together with earlier ideas of workmen's compensation, are aspects of the no-fault system.
Mr. Lofthouse : Does the Solicitor-General agree that we do not always give compensation even when there is evidence of injuries, for example, to coal miners who are suffering from emphysema? Other countries give compensation, but we ignore such people even when the illness is caused by the industry in which they work.
The Solicitor-General : I must defer to the hon. Gentleman whose knowledge of the coalmining industry is much greater than mine although my father-in-law had a great deal to do with emphysema and the compensations to be given because of it--
The Solicitor-General : No, he did not--he just worked as a doctor. I cannot give a detailed answer to the hon. Gentleman's question and although I could talk much more about no-fault compensation schemes, I do not want to take too long.
I turn now to the issue of actuarial evidence. Clause 5 is expressed to entitle parties to personal injuries litigation to adduce and rely on actuarial evidence for the purpose of establishing the capital value of any future pecuniary loss. The clause also requires the court to have regard to that evidence. Both limbs of this clause are unnecessary, for reasons which I shall explain. In personal injury actions, it is often necessary to assess loss of earning capacity and to arrive at a sum which a plaintiff has been prevented by the injury from earning in the future. Essentially, the same assessment is needed where the injury has resulted in death and the claim is for loss of dependency. The established method of calculating that lump sum is to take the "multiplicand"--the plaintiff's present annual earnings--less the amount, if any, that he can still earn, and multiply it by the "multiplier". The multiplier represents the number of years during which the loss of earning capacity will last. The total is then subject to a discount to reflect the immediacy of a lump sum payment in place of the annual or other staged receipt of earnings which the plaintiff would otherwise have expected. The concept of the
Column 557multiplier and the way in which it is to be estimated is a matter of considerable sophistication in the jurisprudence of the court. Expert actuarial evidence, which is what we are discussing, including actuarial tables, can be of some assistance in arriving at the right multiplier. They are often used as a tool by the courts, but their usefulness should not be overstated. Actuarial tables appear in Kemp and Kemp, which has been bandied about so much this morning, and can provide indications of probabilities based on a limited number of contingencies, such as average life expectancies. However, the facts that the courts have to deal with in many individual cases involve so many contingencies in the life of the individual whose case is being considered that actuarial evidence, which is general and overall, can make only a relatively small contribution to the overall picture.
On a wider scale, a whole variety of policies may affect the correctness of the multiplier. On a more domestic scale, economic contingencies such as loss of employment may need to be taken into account. This was discussed in great detail between the Institute of Actuaries and my right hon. Friend the Lord Chancellor. It is accepted by the actuarial profession that these matters are not capable of scientific evaluation, that there is no sound statistical basis for them and that they cannot, therefore, fall within the scope of an actuary's or accountant's expertise.
Mr. Robert Hughes : The Solicitor-General is making--probably rightly--a case for the difficulties of arriving at value judgments. Does he accept that while one does not begrudge the awards to those who receive large sums in compensation, the attitude that the Government take is negatively neutral, if not hostile, and that that contrasts with the way in which they have suddenly produced £1 million for the Zeebrugge disaster fund, £1 million for the Piper Alpha disaster fund, £250,000 for the Clapham disaster fund and £150, 000 for the Lockerbie disaster fund? I assume that the Government make those judgments purely on the ground of emotion, so why cannot they show some emotion for the many hundreds of widows who have received a mere pittance after years of struggling through the courts?
The Solicitor-General : I have listened carefully to what the hon. Gentleman has said to see to what extent it is focused on the heart of the Bill and, although I understand the sincerity of his observation, his point does not bear directly on the Bill. In so far as I am directing my remarks, they are a careful analysis of the Bill to try to assess whether the setting up of a new body, which is the primary function of the Bill, will assist the common cause of prompt and fair conclusions to litigation, which is what we are dealing in. I am not aware of any rule that prevents actuarial evidence from being called. The present position is that the judges may have regard to actuarial evidence, and indeed they do. It is one of the tools of the trade. They will have regard to properly adduced evidence when to do so is of assistance to them. It would be wrong to insist that they should have regard to any particular piece of evidence, actuarial or otherwise, whether or not it was relevant or helpful in the case, simply on the basis that a party had adduced it and sought to rely on it. The judges will understand when it is helpful and when it is unhelpful, and their objective is to do justice.
Mr. Cunliffe : We have never claimed and neither do we in the Bill that actuarial evidence is the answer to everything. What we have said is that Pearson and the recommendations of the Law Commission said that a set of actuarial tables had been specifically drawn up for use in personal injury litigation. That is the heart of the Bill. Pearson said that the tables were drawn up by a committee that included every conceivable actuarial and legal professional body. We cannot get any closer to some rational assessment of the terms under which awards should be made and how we should consider the criteria for making them. It must be understood that actuarial evidence is not the complete answer. We believe that under the chairmanship of Sir Michael Ogden, who investigated this formidably, that is the nearest and best that we can use in the present circumstances.
The Solicitor-General : I fully understand the hon. Gentleman's point. I commend again the balanced way in which he argues for the Bill. We must decide whether it is necessary to have an Act on the statute book to achieve what can and does already happen. That is the issue on which we must focus our minds.
Clause 6 would modify the statutory provisions dealing with bereavement damages. There has been a good deal of misunderstanding about the nature of a bereavement damages award. The suggestion which is often made is that when there has been a fatal accident the maximum damages award that can be made, regardless of any of the circumstances, is limited to £3,500. That is in no sense the case. It is mistaken to imply that anybody puts that value on a life or that that is the maximum recoverable in a claim. That is not the case and never has been. Bereavement damages is a head of damages standing independently of other heads of damages which may be recoverable after a fatal accident. In particular, it should not be confused with a loss of dependency claim which a bereaved dependant may have following the death of a family breadwinner. Bereavement damages was a new head of damages introduced by the Administration of Justice Act 1982 at the fixed level of £3,500, which is criticised.
I appreciate and have listened carefully to that criticism. Everybody recognises that that sum is not intended to represent the value of anything tangible, let alone the value of the life which has been lost. It is offered as some attempt to give solace to close relatives who are left grieving.
The level was fixed at a small conventional sum for all cases--when I began practice, it used to be a much smaller sum, about £450--following the recommendation of the Law Commission, so that there need not be a judicial inquiry into the consequences of bereavement. That would be painful to the families. The Lord Chancellor has power under what is now section 1A(5) of the Fatal Accidents Act 1976, as amended, to vary the sum by order made by statutory instrument subject to annulment. Several hon. Members have made that point. It is not, therefore, necessary to use primary legislation to vary the amount of the award.
Mr. Cunliffe : It is now 13 years since that amount was fixed. Does the Solicitor-General not think that section 1A(5) should be rewritten to include a figure which we consider fitting when taking account of inflation and increasing costs during that period?
Under the present law, the relations entitled to receive this head of damages are the deceased's wife or husband, and--where he or she was a minor who had never married--the parents. Clause 6 of the Bill would extend the claim to the deceased's parents and children, and any other person who, in the opinion of the court, by virtue of his special relationship with the deceased, had suffered bereavement loss. That is qualified by clause 6(3) to mean relationships which were, in all the circumstances, substantially the same as relationships with spouse, parents and children.
The class of relations entitled under the present Act to claim this head of damages was defined according to the recommendation made by the Law Commission, whose recommendations were made following wide consultation and consideration of other systems of law which allowed similar awards to different classes of relations. It concluded that husband and wife should be treated in the same way as parent and child, but did not feel justified in recommending any further extension.
The Government are demonstrating their real concern in the whole area by introducing carefully considered reforms directed to produce substantial improvements in the position of claimants. Our aim is to achieve worthwhile reform by practical steps which are realistically obtainable and which can be carried forward and implemented effectively.
Mr. Alfred Morris : Several anxieties have been put to the Solicitor -General about clause 18 of the Social Security Bill. That Bill, if unamended, will clearly have a seriously adverse effect on what this Bill is seeking to achieve. Will the Solicitor-General urgently inform the Secretary of State for Social Security of those many anxieties?
The Government are determined to ensure that legal aid is provided efficiently and effectively and, as part of the Legal Aid Act 1988--