§ 11.22 a.m.
§ Read 3a.
§ Viscount COLVILLE of CULROSS moved the following Amendment:
§ After Clause 3, insert the following new clause:
Special period of limitation 1939 c. 29
Notwithstanding anything in section 2A of the Limitation Act 1939, no action shall be brought by any person under this Act more than three years after that person ceased to be under a disability:
- (a) in subsection (1) the words " or 2B ", in subsection (3) the words " or as the case may be 2B " and subsections (2) and (6) were omitted; and
- (b) references to section 2A were references to this section."
§ The noble Viscount said: My Lords, I must first apologise to those concerned in this Bill, both noble Lords and their advisers, for my failure to move this Amendment on Committee. I am afraid that on that occasion I did not make sufficient speed from the Library to get to my place in time. May I assure the noble and learned Lord, Lord Stow Hill, that I have no intention whatsoever to delay the passage of this Bill.
§ What happened on Second Reading was that the noble Lord, Lord Platt, drew attention to the doctors' dilemma—if I may so describe it—in this Bill. There is the immense length of time that doctors might have to keep their records. This is a matter of the Limitation Acts. If there is one popular pastime above all that Parliament seems to enjoy, it is the alteration of the law on limitation. It happens about twice a decade so far as I can make out, and the last time an alteration was made was last year. The situation normally is that in the case of negligence, nuisance or breach of statutory duty an action can be brought three years from the time the action complained about took place or from the time when the person suffering some disability or damage from that action first became aware that there was a connection between the two. That may very well be a great deal more than three years. In addition to that, there is the further provision which has been in the law for some time where you are dealing with a minor. The time does not begin to run until the minor becomes 18 years of age, so the minimum period in the normal case is 21 years or longer if the person does not find out within that period that there is a connection between his accident and whatever it is that is now supposed to have caused it. Imagine how much more difficult it will be under this Bill, my Lords. Not only are we dealing with actions or omissions which injure a person during his life-time; we are dealing with actions or omissions which may injure him while he is still an embryo ; and, worse still, we are dealing with actions and omissions which may do damage to either of his parents in many cases years before he was conceived.
§ In all those circumstances there will still be a situation in which when the person is born he can still sue 21 years 946 from his birth, or, if he does not find out within that time, even longer. I think it was that that the noble Lord, Lord Platt, had in mind and he was worried about the length of time that doctors might have to keep their records. This is something which might be discussed with advantage once more, and I have put down the Amendment in order to raise it. I have confined the period to 21 years, unless the court thinks that, on the balance of advantage as between the two parties, the period should be extended.
§ I am not going to press the Amendment; it is simply a peg on which to hang the argument. I should like the noble and learned Lord, Lord Stow Hill, and perhaps the noble and learned Lord the Lord Chancellor, to tell those interested once more why it is that this Bill is not going to lay upon doctors and, indeed, others, an intolerable burden of trying to keep records or remember what happened decades previously in the case of an action subsequently brought under this Bill by somebody for damage incurred either before the person was conceived or born. I beg to move.
§ Lord PLATT
My Lords, in view of the fact that the noble Viscount has quoted me, and what was said on Second Reading, I should speak briefly to this Amendment. So far as it goes, I think it is an improvement and if this matter goes to a Division I will vote with the noble Viscount. As I tried to point out in an intervention on Second Reading, my concern is not purely to protect the medical profession; if it were, I would not be solely concerned with the length of time records are kept. If a doctor has a big enough house, he could keep them for ever. My concern was that a doctor will not know for a number of years whether somebody is going to bring an action against him. I hope my reasons for thinking that this Bill was a thoroughly bad one were made clear on Second Reading. Briefly, I think this Bill will lead to a great deal of disappointment and litigation about matters which are incapable of proof. I was glad to find that I was on the side of the noble and learned Lord, Lord Pearson, in thinking that this was the wrong way to go about this matter; but it is much too late to say anything about that.
§ Lord STOW HILL
My Lords, the noble Viscount has performed a useful service in calling attention to this aspect of the Bill: that is, the question of the application of the Statute on Limitation. I hope that when I have explained the reasons which led those who framed the Bill to frame it as they have on this aspect he will think my reasons are adequate and not press his Amendment.
May I start with a general observation. Parliament last year reconsidered the whole question of the Statute on Limitation in so far as both adults and infants were concerned. Parliament deliberately accepted, as part of a major measure, that the community should in effect be generous in the case of infants in fixing the time scales within which they must bring their actions. The noble Viscount indicated what they are. The infant has, in the first place, until 21 years from the date of his birth to bring his action. In addition to that, when that period of time expires, if he does not know that he has a cause of action or against whom his cause of action lies, he can bring his action when he finds out, and for three years after that. One starts out with the position that, in the public interest when this matter was reconsidered in the Limitation Act last year, it was thought right to be generous when dealing with infants in the time that the community allows them to assert their rights. That is the broad background against which, in my submission, this issue should he considered.
That being so, my Lords, there are a number of other observations which I would venture to offer to the House. In the case of post-conceptual claims, no real problem can really arise, I submit; you add another nine months, perhaps, to the period which I have indicated. But it is perfectly true that you may get the case of a pre-conceptual claim which goes back a long period of time. It may go back years. Can it be said that, because you get that situation, the Bill is wrongly framed in that it enables the infant to sue in respect of that pre-conceptual occurrence, in respect of which he can now sue under the terms of this Bill? I submit not, for a number of reasons. In the first place. the House will remember that the Law Commission has already expressed the view, arising out of the thalidomide case, that, in any event, the 948 existing law allows precisely that. Under the existing law, if the Law Commission is right, an infant—that is to say, an infant born before this Bill comes into force—has the right to sue for an antenatal injury in relation to a pre-conceptual incident which may have taken place years and years ago. I feel the noble Viscount will agree with me that it really is impossible to justify a situation, assuming the Law Commission is right in the opinion which it has expressed, in which an infant who sues having been born before this Bill comes into force has a full right to go back to the pre-conceptual incident in question, whereas if he is born after this Bill comes into force his rights are much less. I feel sure the noble Viscount will agree that it is difficult to justify that situation.
I go on to the next point, my Lords. There is nothing whatever in any existing legislation to prevent an infant suing by his next friend when he is quite young; so that in point of fact, when you get the pre-conceptual incident years before, there is nothing whatsoever to prevent the infant suing by his next friend when he is two, three or four years old. So the delay may not be long, anyhow. I say that in submitting to your Lordships that in point of fact the hardship which it is said may be occasioned will be very rare, and the problem really is—and I do not say this in any disparaging sense, certainly not disparaging of the noble Viscount's argument—a rather theoretic and academic one. It will very rarely take place, anyhow, because if there is a pre-conceptual incident which can be pointed to, the infant will sue by its next friend when it is quite young, and not too long, presumably, will elapse.
Then one looks at Clause 3 of the Bill. Clause 3 is the one which gives the right of action to infants whose ante-natal occurrence consists of exposure to ionising radiation. In my submission, it would be quite impossible to justify a situation in which, if an infant is injured after he is born, he has the full 30 years which the relevant legislation now allows him, whereas, if he is injured by an antenatal occurrence consisting of exposure to ionising radiation, he has a shorter period. I am sure the noble Viscount would agree that that would be a wholly anomalous situation which it would be impossible to justify.
949 I go further than that. Under the existing law—the law which has nothing whatever to do with congenital disabilities—you may get situations which are very much like it. You may get an infant who becomes conscious, after a period of years, that, owing to some wrong, he has developed a creeping, insidious illness which may not manifest itself for years and years, so that he does not know that he has a cause of action for years and years. You may also get this situation, which again has nothing whatever to do with congenital disabilities. It is arguable, but suppose, for example, that in year one a motorist runs into a wall negligently and damages its foundations, and in year twenty the infant plaintiff, then two years of age, is being pushed past that wall in its pram when, owing to the motorist's negligence, the wall collapses on him and injures him. The noble Viscount knows very well that there is no tort in negligence unless you have a negligent act followed by damage. There is a case which has just been decided in the Court of Appeal which gives some justification for thinking that it is the existing law that, in such a case, 21 years after the negligent act, the infant can sue. You would have to add the whole period which the existing laws of limitation, contained in the 1975 Act, allow; so that you would have, perhaps, 21 years plus another 10 years before he finds out that he has that cause of action, plus three years on top of that, plus 20 years elapsing between the negligent act and the incident—namely, the collapse of the wall—which caused the damage to the infant.
My Lords, I hope that the noble Viscount will feel that those are adequate reasons for choosing the framework which has been chosen. He is, if I may say so with respect, perfectly right in thinking that in the other place, in Committee, although the Solicitor-General explained the effect to the Committee of the existing laws relating to the bringing of actions and the Statute of Limitation, that was not specifically discussed. It was, broadly speaking, accepted as being, I hope I may say, not unreasonable when a discussion was taking place on the meaning of the word " disability " at the Committee stage. I hope that for all those reasons the noble Viscount will not feel it necessary to press his Amendment. After all, this Bill is a temporary measure, anyhow, 950 until the Royal Commission can consider the matter further; it is just to hold the position. As I say, I hope the noble Viscount will feel that it is not necessary to press his Amendment. I think he has already indicated his intention not to do so.
§ Lord DAVIES of LEEK
My Lords, I speak as a layman in this matter, but as one who has taken a great interest in the development of atomic physics and radioactive production in relation to power stations, et cetera, I think that in the future, particularly in view of the EEC's energy policy, we are going to face the building of more and more atomic power stations, and it is time mankind understood the teratological effects of radioactivity. Here I perceive two different approaches, one to the law of property and a different one to the law of life. When it is said that doctors would have to keep documents and that they would pile up, in the modern age of computerisation and of the development of hospitalisation and health centres, the keeping of statistics is not all that difficult, and the analysis in biochemistry of the results of radioactivity are easy to discover. Consequently, a specialist particularly interested in radioactivity once said in a letter printed in The Lancet—and I remember the rhyme that he wrote:The nuclear boffins, God bless 'em all, Have calculated the fall-out to a decimal; But my nephew and niece Have five legs apiece, And their intellect's infinitesimalMankind had better realise what it is messing about with so far as the congenital effects of radioactivity are concerned, and if one is going to limit by a number of years the right of the unborn to appeal for justice in a society which has willy-nilly developed a radioactive atmosphere, I believe mankind is taking a different point of view towards life from that which it is taking towards property. I may not understand the legal jargon and the splitting of hairs that takes place so far as lawyers are concerned, but I know what I know, and that is that the possibility of inherited teratological and congenital effects on the unborn exists, and we should therefore build up a framework by means of which they can be protected. Consequently, if there is any limitation placed upon the right of an unborn child, when it is born, to bring a case, through its elders or others, to the courts, like those concerned 951 in the thalidomide case, I would go into the Lobbies with my noble friend who moved this in the first place.
§ 11.40 a.m.
§ The Lord CHANCELLOR (Lord Elwyn-Jones)
My Lords, it is valuable that this problem has been ventilated in the House by the noble Viscount, Lord Colville of Culross. It has also been valuable to hear the masterly exposition of the law which has fallen from the lips of my noble friend Lord Stow Hill. I should like only to say that I agree with his conclusions and his opposition to the Amendment; but there is no doubt that the problem is a real one. There will be hard cases on the margin, where nevertheless the generous attitude of Parliament and the law in respect of limitation should continue to apply. I recognise that for doctors and others who have responsibility in regard to the unborn child, the problem of maintenance of records is very real.
But that problem will still exist with the Bill, even if the new clause as moved by the noble Viscount were to be there, because in the Bill there would still remain the discretionary power which is given to the court to extend the periods of limitation beyond those expressly provided for—and I notice by the nodding of his head that the noble Viscount agrees. So the basic difficulty would remain ; but of course there are also difficilties on the other side. There are difficulties for the plaintiff and those who advise him and who identify the insidious disease, which was the illustration given to us, as being attributable to negligence either because of a nuclear plant, or whatever it might be, that injured the mother and caused the deformity and the insidious disease which manifested itself very much later.
The difficulties of proof on the plaintiff's side are not inconsiderable, but I think it would be regrettable if the generosity which Parliament has shown generally in that class of case were not shown in cases of congenital disability. I think Parliament has been right to recognise that in the thalidomide type of case the most important interest is the protection and compensation of the child who has been damaged by the negligence of another. This Bill establishes that principle very clearly, and I think it would be wrong to 952 depart from the generous provisions of the law as it stands to provide for a special class of limitation in this case. Accordingly, therefore, I hope that your Lordships will feel disposed to reject the Amendment, and I venture to think that the noble Viscount himself may not be reluctant to do so.
Viscount COLVILLE of CULROSS
My Lords, I am very grateful to those who have taken part in this discussion. I think it was something which needed discussing and that when it comes to be read in the Official Report it will go some way towards allaying the fears that have arisen. I would say to the noble Lord, Lord Davies of Leek, that I was not so hard-hearted as to cut the time off, because there was still a discretion in the court for considering hardship which might arise either way. I am particularly grateful to the noble and learned Lord the Lord Chancellor and to the noble and learned Lord, Lord Stow Hill.
I do not need much persuading to withdraw this Amendment and I shall do so in a moment in order to give, I hope, sufficient time for the noble and learned Lord to go on his way to receive his distinguished honour from Her Majesty in which I am sure we should all wish to offer him congratulations and " God speed ". I beg leave to withdraw the Amendment:
§ Amendment, by leave, withdrawn.
§ Moved, That the Bill do now pass—(Lord Stow Hill).
§ On Question, Bill passed.