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Lord Carlisle of Bucklow: Perhaps I may reply briefly to what the noble and learned Lord, Lord Archer, has just said. Obviously anyone who loses a job as a result of injury or who is unable to work for a short time suffers a blow. I accept that that must be so, but one must to a degree be pragmatical in approaching this matter. The board is now facing something like 70,000 cases a year. At the moment the scheme requires us to look at any potential loss of earnings for however short a period of time. A great deal of the time of the board's staff is taken up in inquiring as to the loss of wages claimed by someone who may not have been off work for three or four weeks but for, say, two or three days. Then you have to write to the DSS to inquire whether they received benefits, deduct the benefits from the wages to discover whether they have an additional claim on top of the general damages or, in many cases, whether there is an excess of what they received in benefits as against their losses to be deducted from the sum for general damages.

Based on my experience over the past five years with the Criminal Injuries Compensation Board, I am bound to say that the amount of time spent finding out the answer to that question often far outweighs the result. I have put that badly, but a great deal of time is taken up finding very small sums owed one way or another. Although I believe that it is in some ways harsh, it is, regrettably, pragmatically correct for the Government to say that the first few weeks of earnings should not count. Whether they have the right point with 28 weeks, I do not know. The submission we put to the Home Secretary when he was putting forward his revised tariff was that we thought that it was reasonable up to three months not to account for the loss of earnings. The Government are right to say that we cannot have such a finely tuned scheme any longer and account for every day's earnings lost. With a degree of regret, because I believe that the

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arguments of principle are on the side of the noble and learned Lord, Lord Archer, the Government are right to say that the amount of work involved is not justified by the outcome. The awards at the lower end, as the noble Lord, Lord Rodgers, said, are on the generous side compared to those we pay in general damages and have attempted to take into account that fact. So I hope that the Government will resist the amendment.

Baroness Blatch: I am grateful to my noble friend because he has put the argument rather more eloquently than I could have done. That is precisely some of the thinking behind having to choose a period. We believe that 28 weeks is about right. It is the period for which statutory sick pay is paid, and many employers, as we know, pay full sick pay for that long anyway. Those ineligible for statutory sick pay are usually able to claim incapacity benefit or some other state benefit according to their need.

There is just one other point to add to what my noble friend said. Under the proposed scheme, payment for loss of earnings or earning capacity will be capped as at present at one-and-a-half times the national average wage. The amendment makes no allowance for such capping, which could mean that a higher wage earner off work for fewer than 28 weeks could receive considerably more for loss of earnings from the scheme than a lower paid worker who was off for more than 28 weeks. I am sure that that is not the intention of the amendment, and it is not the intention of the scheme. It would greatly increase the cost of the scheme to the taxpayer and would, in effect, mean a return to something close to the present system. As we have already heard from my noble friend, this would make the system work rather better.

Lord Archer of Sandwell: I take the point made by the noble Lord, Lord Carlisle of Bucklow, and by the Minister. Of course I understand that the administration of effecting justice can sometimes be itself a substantial drain on the resources which could otherwise have been devoted to the doing of justice. Sometimes, I believe, we would be financially better off if we allowed every claim rather than devote the resources which we do to adjudicating on claims. However, there are obvious arguments against that.

Clearly in all these cases one has to balance the amount in issue against the cost. I could take that point more readily if the cut-off point were, say, four weeks or even six weeks. Someone deprived of his earnings and reduced to SSP for six weeks might suffer real hardship, but it would probably, in most cases, be hardship with which he could cope. If we are talking about 28 weeks, the hardship is mounting up week after week after week. The mortgage has to be paid and then there comes a time when the children need new clothes, and so on. By the end of the 28 weeks, the family, unless it is particularly robust, could be in a state of chaos. I believe that 28 weeks is too long to sustain that argument.

I see too the point made by the Minister, that there could be some anomalies, and we should be happy to see how they could be eliminated. We remain unhappy at this. There would be, not everyone, perhaps not

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massive numbers of people, but a substantial number of people who would suffer real hardship because of this rule. I should like to reflect upon what has been said in the course of the debate to see whether there may be other ways of addressing the problem. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.15 p.m.

Lord McIntosh of Haringey moved Amendment No. 26:

After clause 2, insert the following new clause—

Exclusion from Tariff of multiple injuries

(". The Scheme shall provide for the calculation of a compensation award to an applicant who has suffered two or more injuries each of which would otherwise attract a Tariff based award at level 7 or above to be made upon the same principles as an award for pain, suffering and loss of amenity at common law.").

The noble Lord said: Amendment No. 26 deals with multiple injuries and refers to the changes that have taken place between the original common law scheme, the illegal scheme that was introduced and has now been replaced, and the proposed new scheme. Unfortunately, this is one of the examples of defects in the illegal scheme being continued in the proposed new scheme. We are not talking about multiple minor injuries. There is a note to the tariff which states the way in which minor injuries such as grazing, bruising, black eyes or bloody noses shall be dealt with. The amendment is not concerned with those; it is concerned only with injuries at tariff level 7, which is £3,000 or above.

The first tariff scheme provided that there should be a 100 per cent. payment for the first injury, a 10 per cent. payment for the second, a 5 per cent. payment for the third and nothing for any subsequent injury. I wish to give two examples in order to illustrate how that results in total awards which are not only very much less than the original common law scheme but so low as to be unreasonable and even unjust.

Perhaps I may give the example, first, of a man who was attacked and landed on his head on the pavement. He received a right-sided haematoma causing compression of the brain with evidence of confusion of the brain. As a result of that he suffered epileptic fits for a number of years in a continuing period after the injury. He had right-sided headaches and tinnitus and a tendency to become depressed and irritable. Indeed, he was admitted to a psychiatric hospital on four or five occasions after the incident. His speech incapacity for language was significantly impaired. He was virtually unemployable, his personal life was destroyed and his marriage broke down after the incident. Under the common law scheme his award of general damages—and I shall stick to those—was £50,000. Under the tariff scheme he would have received £20,000 for the psychiatric injury, only 10 per cent. of £12,500 for the epilepsy and only 5 per cent. of £7,500 for tinnitus. That is a total award of £22,000 as compared with the £50,000 that he would otherwise have received.

The second example is of a woman who was aged 23 at the time of the incident. A hand-held distress flare hit her in the left eye and exploded. She lost the sight of

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her left eye, she has a traumatic cataract and severe retinal damage and is left with double vision in her left eye. She is unable to wear an occlusive contact lens, she has a shrunken eye, a shattered eyebrow, a fixed dilated pupil and divergent squint and she cannot close her eye because of the tethering of the skin. She has had plastic surgery but that has not worked. She was pregnant at the time but she has since been diagnosed as depressed. She was a trained hairdresser but she could not continue in that employment. Under the common law scheme she was awarded £33,500. Under the tariff scheme she would have received £20,000 for loss of sight, only 10 per cent. of £7,500 for scarring and only 5 per cent. of £7,500 for psychiatric injury. Therefore, she would have received £21,000.

There are literally hundreds of examples such as those in which the arbitrary figure of 100 per cent. for the first injury, 10 per cent. for the second injury, 5 per cent. for the third injury and nothing thereafter amount to injustice. That is not a challenge to the tariff; the tariff is not being attacked in this amendment. However, what is being attacked is the over-simplistic way in which the tariff deals with multiple injuries. Again, this is not an open door to huge numbers of claims. There were only 641 applications in respect of multiple injuries in the year of the operation of the 1994 scheme and it is difficult to imagine that there would be a significantly greater number in the future. I cannot calculate what the expenditure would be but on that number of applications it clearly would be very small indeed. However, there would be a significant improvement in the justice and acceptability of this scheme if those arbitrary limits were removed. I beg to move.

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