§ 3.51 p.m.
§ THE LORD CHANCELLOR
My Lords, with the leave of the House I should like now to repeat a Statement which has been made by my right honourable friend the Prime Minister in another place on the subject of civil liability and compensation for personal injury. The Statement is as follows:
"The Government have been considering proposals made from time to time in the past, which are now particularly relevant in the light of the Report of the Robens Committee on Safety and Health at Work and in connection with the recent concern over the thalidomide cases, that there should be an inquiry into the basis of civil liability in the United Kingdom for causing death or personal injury. It is the Government's view that a wide-ranging inquiry is required into the basis on which compensation should be recoverable.
"Her Majesty The Queen has been pleased to approve a recommendation that a Royal Commission should be established with the following terms of reference:
'To consider to what extent, in what circumstances and by what means compensation should be payable in respect of death or personal injury (including antenatal injury) suffered by any person—
971 "Her Majesty has also been pleased to approve a recommendation that the Chairman of the Royal Commission should be the noble and learned Lord, Lord Pearson. I hope to announce the names of the other members before long.
- (a) in the course of employment:
- (b) through the use of a motor-vehicle or other means of transport;
- (c) through the manufacture, supply or use of goods or services;
- (d) on premises belonging to or occupied by another; or
- (e) otherwise through the act or omission of another where compensation under the present law is recoverable only on proof of fault or under the rules of strict liability, having regard to the cost and other implications of the arrangements for the recovery of compensation, whether by way of compulsory insurance or otherwise.'
"The House will have noticed that the terms of reference require the Royal Commission to consider in what circumstances and by what means compensation should be payable in respect of death or personal injury caused in a number of different ways. Injury suffered in the course of employment is included (as the Robens Committee recommended) and so is injury suffered through the use of a motor vehicle or other means of transport.
"The Royal Commission will also have to consider the question of liability for injury suffered through the manufacture, supply or use of goods or services. Honourable Members will observe that this will enable the Commission to consider the principles governing the award of compensation for injury caused by the administration of a drug such as thalidomide, though I must make it plain that no recommendation the Commission may make could have any retrospective effect.
"One of the difficulties which arose in the thalidomide cases was whether there is a right to recover compensation in respect of ante-natal injuries. My noble and learned friend the Lord Chancellor, has asked the Law Commission to consider the matter, and I understand that the Commission expect to be able to report in the course of next year. A similar request has been made to the Scottish Law Commission by my right honourable and learned friend the Lord Advocate. The Royal Commission should thus be able to take into account the report of the two Law Commissions on this aspect of the matter and any action which Parliament may have taken on it in the meanwhile."
My Lords, that concludes my right honourable friend's Statement.
§ LORD GARDINER
My Lords, we are grateful to the noble and learned Lord the Lord Chancellor for his kindness in repeating in this House the Statement which has been made in the other 972 place by the right honourable gentleman the Prime Minister. We should welcome the appointment of a Royal Commission into these difficult questions. As the noble and learned Lord may know, in New Zealand a Committee was appointed which found itself unable, without power of subpoena, to come to a conclusion, primarily on questions of cost, and the Committee had to be turned into a Royal Commission; and I feel sure that a Royal Commission are the appropriate body to consider these important questions here. I am sure that all noble Lords will welcome the appointment of the noble and learned Lord, Lord Pearson, as Chairman.
I do not know whether the Lord Chancellor will agree that, with such wide terms of reference and so many questions to consider, it is likely to be two or three years before the Royal Commission report. That brings me to the only questions about which I am not clear: they concern the scope of the terms of reference. I had the advantage of attending the centenary of the New Zealand Law Society when the Woodhouse Royal Commission Report was the primary subject for discussion. If my recollection is right, they had ascertained that if motorists paid what they were paying then, if factory owners paid what they were paying to their insurance companies to insure against claims by injured workmen, if the State provided the social and medical facilities it was already providing and if there was a relatively small tax on the self-employed, then appropriate compensation could be awared to all who were injured, whether they were injured on the roads or in factories, and whether or not it was anybody's fault, even if a person fell from a ladder in a factory through his own fault or fell from a ladder at home through his own fault. I am not all clear, on the terms of reference of the Commission that has just been announced, whether a man who falls off a ladder at home through his own fault would be covered. It is I think clear that a man who falls from a ladder in a factory through his own fault would be covered, because it would be…otherwise through the act or omission of another where compensation under the present law is recoverable only on proof of fault…Presumably that would cover a case where the act or omission was nobody's 973 fault at all, but I am not quite clear about that.
The next point about which I am not quite clear is the relation between the Royal Commission and the Law Commission. As I understand it, the Law Commission have already been considering, on the invitation of the noble and learned Lord the Lord Chancellor, the question of the recovery of compensation in respect of ante-natal injuries and are to report during 1973. It seems in a way odd that a body should be asked by the Government to report on that, that it should spend a long time on it and that when it has reported it should be told, "Now we will ask another body to say whether they think that you are right."
There is another point about which I am particularly concerned. I know, as the Lord Chancellor does, that the Law Commission have been considering for some time—and I think they are expected to report within the next two or three months—a matter which has troubled many of us for some time. It is whether our method of assessing the quantum of compensation payable is right; whether the amounts awarded are sufficient and whether we take sufficiently into account actuarial knowledge which exists and which might enable judges to make more accurate assessments. The particular question of quantum does not seem to be covered by the terms of reference. If that is so, I am very happy; because, as this subject has been referred to the Law Commission, it is under their consideration and they are about to report, it would again seem an unhappy thing if that subject also is to be added to the many other important questions which this Royal Commission are going to consider. Subject to that, we welcome this Statement.
§ LORD WADE
My Lords, I should like to join in thanking the noble and learned Lord the Lord Chancellor for repeating this Statement and I welcome the decision to appoint a Royal Commission. I certainly hope that it will be found possible for the Royal Commission to report within a reasonable period of time.
The need for clarification of the law has been highlighted by the tragic effects of the thalidomide drug. With regard to 974 the terms of reference, I note that the Commission will consider ante-natal injuries; and with regard to the subject being discussed by the Law Commission I note that the Royal Commission will have the benefit of the advice of the Law Commission. May I ask whether that implies that the Report of the Law Commission will be deferred until the Royal Commission have reached a decision, or shall we hear as soon as possible the views of the Law Commission?
My last point is a rather general one. I should like to know whether, to what extent and in what circumstances the Royal Commission will consider whether compensation should be payable by the community. In other words, should it be recoverable from the State, or are the terms of reference limited to the question as to the circumstances in which compensation should be recoverable from the party, directly or indirectly, causing the injury complained of?
§ 4.3 p.m.
§ THE LORD CHANCELLOR
My Lords, I should like to thank both the noble and learned Lord, Lord Gardiner, and the noble Lord, Lord Wade, for the welcome they have given to this Statement. I am glad that both of them thought that a Royal Commission was really an inescapable choice of method to undertake this wide-ranging inquiry.
I should not like to speculate about how long it will take for the Royal Commission to report, but both the noble and learned Lord, Lord Gardiner, and the noble Lord, Lord Wade, and probably the House in general will recognise the very wide range of cases and the complex set of issues which are covered by the inquiry. I do not conceal that I had a certain part in discussing this question in Government circles, and I have certainly been working on the theory that it will take some time for the Royal Commission to report. That is really the clue to the questions, or at any rate some of the questions, which have been raised by the noble and learned Lord, Lord Gardiner, and the noble Lord, Lord Wade, and which I will now proceed to answer in detail.
Of course I am familiar with the New Zealand work. As the noble and learned Lord is aware, there they have hit upon a particular scheme. So, in America 975 has the State of Massachusetts and certain other States. They are quite different schemes, based on different principles, although I think both up to a point rely upon no fault liability as the basis of compensation. That being so, obviously the Royal Commission will want to examine both these and other types of possible model, and indeed the status quo as a possible model. I should not like to comment upon these various possible models, but it will be precisely that sort of thing which will engage part of the attention of the noble and learned Lord, Lord Pearson—and may I say in passing that I was grateful to the noble and learned Lord, Lord Gardiner, for recognising his worth in this connection.
The noble and learned Lord, Lord Gardiner, then went on to ask me questions about the relations between the Royal Commission which we have just announced and the two inquiries set on foot by the Law Commission in relation to two separate matters, one ante-natal injuries and the other in relation to the quantum of damage. If I may refer back to what I said a moment ago, the clue to this is that both of these inquiries are at the moment going on and I do not want to interfere with them. On the other hand, when the Royal Commission come to report—which, as the noble and learned Lord suggested, may be in two or three years' time—though I have no particular means of estimating when that will be, it is much more likely than not to be after the Law Commission have come up with provisional answers, and obviously the Royal Commission will want to take into account anything which the Law Commission may have reported in the interim and anything which Parliament may have done in the interval.
It was for that reason—at least that was the principal reason—that I thought it proper to include ante-natal injuries in the express terms of reference for the Royal Commission. There was a subordinate reason which perhaps I had better mention. The word "injury" of course does not readily suggest an antenatal injury. In the state of the law at the moment it might well only refer to injury to a person in being and not an injury perhaps generated at the moment of conception, which might easily be called a congenital deformity or some- 976 thing of that kind. I wish to make it perfectly plain, although I think it would have been plain if I had not inserted those words, that ante-natal injury came within the scope of the whole inquiry. In view of the interest which the public have taken in recent cases, which I must not discuss, I thought it would be quite wrong not to make that plain.
As regards the quantum of damage again I assume that the Royal Commission will have to consider the construction of their own terms of reference, but obviously the Law Commission inquiry will go on irrespective of what is going on in the Royal Commission and one hopes they will have reported long before the Royal Commission report. It may be that Parliament will act ad interim or it may be that Parliament will defer action until receiving the Report of the Royal Commission. At any rate it will be desirable and, I think, necessary for the Royal Commission to take into account both what Parliament has done and anything which it is deliberately decided to defer.
I think that deals with the questions raised by the noble and learned Lord, Lord Gardiner. Therefore, by implication, I think I have answered the first of the two questions put to me by the noble Lord, Lord Wade. To the second of the two questions, as to whether it is within the terms of reference of the Royal Commission to consider a State scheme, the answer is clearly that it is within the terms of reference to do so but I should have thought that the Government's thinking at the moment is that prima facie compensation should derive from the person or persons promoting the activity which gives rise to the injury. Clearly, the New Zealand scheme, for example, includes an important element of State involvement (I forget exactly how much) and it will be within the terms of reference of the Royal Commission to consider that kind of thing, though personally at this moment and without desiring to pre-empt anything they may decide, I would not myself favour that particular solution. But at any rate I have answered the question raised by the noble Lord, Lord Wade.
§ LORD DAVIES OF LEEK
My Lords. I should like to ask the noble and learned Lord one question. Due to the fact that there are more accidents in the home 977 than there are on the roads I was not quite clear whether the gentleman climbing the ladder, cutting and pruning his own roses, will be included?
§ THE LORD CHANCELLOR
My Lords, there again it is perhaps not for me to construe the terms of reference legally; that is for the Royal Commission. But I must apologise to the noble and learned Lord, Lord Gardiner. It is sometimes difficult to pick up all the questions and I omitted to answer that one; but I will now proceed to do so. The noble and learned Lord is obviously quite right in thinking that accidents at work are expressly covered, but I should think that, prima facie, the purely accidental occurrence in the home not caused by the fault of any other person—for instance, the supplier of the ladder or the pruning hook—would not be within the terms of reference, though of course, as I say, in the end it is for the Royal Commission themselves to discuss their terms of reference.
§ LORD AIREDALE
My Lords, the terms of reference refer to the manufacture of goods and the use of goods, but I hope that distribution is also covered. I am thinking of an explosion of a gas main in the street. That does not come under the manufacture of gas, and although it could conceivably come under "use it is really distribution. I hope that distribution would be covered.
§ THE LORD CHANCELLOR
My Lords, when the noble Lord comes to read the terms of reference he will find that they include the supply of goods as well as the use or manufacture of goods. I would myself question whether gas was necessarily "goods", but I should have to consider that point at rather greater length. The point about gas and public utilities is of course that they raise different questions, because normally liability is excluded or defined by the Statute which gives rise to the public utility. However, the supply of goods and the supply of services certainly are included within the terms of reference of the Commission.
§ LORD SEGAL
My Lords, since specific mention has been made of the thalidomide cases, and we have been told that cases of ante-natal injury will also be included in the terms of reference, may 978 I ask the noble and learned Lord the Lord Chancellor whether the inquiry will be able to extend its scope to include brain damage cases, and also the very large group known as iatrogenic diseases?
§ THE LORD CHANCELLOR
My Lords, I take it from my knowledge of Greek that "iatrogenic" means that the disease is the fault of the doctor.
§ THE LORD CHANCELLOR
My Lords, this is how I interpret the word in English. Again it is for the Royal Commission themselves to determine their terms of reference, but I should have thought that all the spastic cases which could be due to negligence would be covered; and I should have thought that any iatrogenic case which was due actually to fault on the part of the doctor would be covered—though of course people die, or suffer injury, under surgery which is nobody's conceivable fault. These are just the sorts of inquiries and the sort of boundary which the Royal Commission will have to draw for themselves.
My Lords, this is a serious and not a comic question; but would the noble and learned Lord say whether the term "ante-natal injury" includes death, which is an injury for which the victim really cannot be compensated, though there may be people who can? It is a wide question, and clearly cannot be answered in a word.
§ THE LORD CHANCELLOR
My Lords, I should have thought that that is exactly the sort of question which either the Law Commission or the Royal Commission may discuss at rather greater length than I propose to do. Broadly speaking, as I understand the present situation, there has been no English case which has decided exactly what "antenatal" means. There have been Scottish and Australian authorities, and I should be surprised (though I do not know the answer) if there have not been American cases. I should suspect, and I think it is true of any cases that I have inspected, that where no child is born at all the only conceivable person who can bring an action for damages under the existing law is one of the parents. Obviously, 979 damage to a pregnant mother which results in the death of her unborn child may be a personal injury of hers, but there is no person at any stage who is apart from this capable of bringing an action. No doubt these are matters which will have to be probed.