§ 11.30 a.m.
§ Lord STOW HILL
My Lords, I beg to move that this Bill be now read a second time. The Bill comes from another place where it was introduced as a Private Member's Bill by Mr. Ray Carter, whom I am sure we should all like to congratulate on recently becoming a member of the Government. If I may say so. Mr. Carter introduced, in a speech of most admirable clarity, what is a very complicated Bill; and, what is important, made it very clear that the Bill is one of limited scope and objective. It comes to this House from another place, where it had all-Party support as well as Government approval, and the Solicitor General was present to deal with the many legal difficulties that arose. After it had received its Second Reading, it was most exhaustively probed in Committee, when all proposed Amendments were withdrawn after discussion except for one Division, in which a proposed Amendment was defeated. It was again carefully considered on Report, when no Amendments were made except one to Clause 2, which was moved by the Solicitor General and accepted without a Division.
My Lords, public conscience was alerted and public anxiety directed to the situation of children born with deformities by the appalling tragedy of the thalidomide children, born with dreadful deformities because their mothers had taken the thalidomide drug, sold in this country by Distillers. Perhaps at the outset I ought to declare a financial interest, having for many years held shares in the Distillers Company. Possibly also it is relevant that, although I retired from active practice at the Bar in January 1964, 12 years ago, I had been acting professionally as counsel for the Distillers Company, or their underwriters, in relation to the thalidomide case.
A difficulty that arose in the thalidomide case was that there seemed to be some uncertainty as to what was the law with regard to a claim by a child born with a 357 deformity for damages where it could be proved on the child's behalf that the deformity was caused by some wrongful act affecting the parents' capability of bringing to birth a healthy child without that deformity. There was doubt whether in law the deformed child had any right to damages for the deformity from which it suffered as a result of that wrongful act committed before its birth. It was felt that it was absolutely essential that it should be clearly stated in a Statute what exactly the law is in this respect so far as births in the future are concerned. It is in order to achieve this, by clearly laying down what is the law, that the present Bill has been prepared.
It was with this end in view that the noble and learned Lord, Lord Hailsham, then Lord Chancellor, on 20th November 1972, invited the Law Commission, under the provisions of Section 3(1)(e) of the Law Commission Act 1965, to advise him what the nature and extent of civil liability for ante-natal injury should be. In response to that invitation the Law Commission produced a most valuable report dated 14th June 1974, published as Command Paper 5709 in August 1974. In this report they examined with great thoroughness the legal and other problems that would be involved in creating a legal right in a child born with a disability to sue for damages a person whose wrongful act, committed before the child's birth, could be proved to have adversely affected the child's parents so as to give rise to the child's disability.
To give effect to their findings they annexed, in a schedule to their report, a draft Bill, upon which the Bill at present before your Lordships is based, although there are some departures in the present Bill from that prepared by the Law Commission. Before they prepared their report, they, in January 1973, circulated a working paper inviting an expression of opinion by distinguished lawyers, including the Lord Chief Justice and the President of the Family Division, and a very wide range of medical opinion and of other organisations. Consultations and discussions took place orally between the Commission and many of those to whom the working paper was circulated, and extremely valuable advice was tendered to the Commission, none of it hostile to the general purpose underlying the preparation of legislation.
358 On the question of whether existing law provided a remedy, the Commission in paragraph 8 of their report (if I may quote their words) expressed it as their opinion,that it is highly probably that the Common Law would in appropriate circumstances provide a remedy for a plaintiff suffering from a pre-natal injury caused by another's fault ".The Bill does not apply to Scotland, because the Scottish Law Commission was of the opinion that existing Scottish law clearly does, as it now stands, provide an appropriate remedy; so there is no need to seek to alter or clarify the existing law of Scotland by Statute.
It is not easy to form a view as to the scale of the problem. In paragraph 19 of their report the Law Commission say:We were told by the Medical Defence Union that there were 1,000 handicapped children born in the United Kingdom every week.But this figure has been criticised as being too large; and whatever the figure should be, it is only in a comparatively small percentage of cases that the necessary connection between the child's disability and the ante-natal injury could be proved. But in paragraph 21 of the report of the Commission the Commission state that there are known to be about 1,500 drugs capable of injuring the foetus, the use of which in the treatment of pregnant women involves varying though usually slight degrees of risk. But apart from thalidomide, with its terrible effects, the drug stilboestrol if taken by pregnant women has been followed by the development of vaginal cancer in their adolescent daughters, and there are other dangerous drugs.
This Bill thus has a limited objective. It is to ensure that children born with a disability are to have a remedy in damages in cases when it can be affirmatively proved that their disability is attributable to a wrongful act committed before their birth, and to declare and adapt the existing general framework of our law so as certainly to produce that result. But before I invite attention to the actual provisions of the Bill designed to achieve this result I must refer to one other matter.
On December 19th, 1972, the then Prime Minister announced that a Royal Commission, under the chairmanship of the noble and learned Lord, Lord Pearson, 359 was to be established to conduct a wide-ranging inquiry into the question of civil liability for personal injury, including ante-natal injury. In a letter to The Times dated January 21st, 1976, the noble and learned Lord, Lord Pearson, acting in his capacity as chairman, raised objection to the introduction of the Bill then about to be introduced in another place on Second Reading. I confess to not having found it easy to understand exactly what is the basis of the objection. In his letter, the noble and learned Lord, Lord Pearson, pointed out—as I accept—that the Bill has a limited objective and probably will be of temporary application if the Royal Commission recommends changes in this branch of the law.
All this, the Promoters of the Bill accept, and, indeed, assert. The Bill in no sense pre-empts the scope of any recommendations that may be made by the Royal Commission. It is only intended to clarify and to make certain what the law is until changes, if any, are made as the result of the Royal Commission's findings. The Royal Commission's report, I understand, may be expected some time after the end of this year. Legislative changes to implement any of its recommendations may not be possible for months or even years after the report is completed. In particular, there is a general expectation that the Royal Commission will address itself to the question of whether in order to recover damages a person who suffers personal injury should have to establish that the injury was caused by somebody else's fault, or whether the injured person should be entitled to receive damages to compensate him for his personal injuries whether or not their infliction was occasioned by somebody else's fault. In other words, all that he would have to establish would be that he in fact had suffered the injuries, proof of which automatically entitled him to damages.
Personally I very greatly hope that the Royal Commission will come down in favour of a " no fault " right to compensation for injury, as it is called. I have always thought it utterly absurd that if, for example, an elderly person steps from the pavement in the path of an oncoming motor car and is run over, the question whether that person should recover substantial damages or nothing 360 should depend on whether or not, before stepping off the curb, he looked in the direction from which the car was coming; and that hours of the time of the court, judges, witnesses, counsel, solicitors and others should, day in, day out, be wasted in minute inquiries into questions of that sort, with the large expenditure involved which could much more sensibly be used for compensating the injured person.
I remember that at one time, it was, I should have thought, almost an even bet that if you entered a county court or a court of the Queen's Bench Division you would find that the court was trying this kind of fault issue in a personal injuries case or in a " running down " case, as cases involving injuries in which a motor car was involved were called. Perhaps I exaggerate, but, at any rate, much too much of the court's time was occupied in this way.
But if the Royal Commission, as I hope, recommends the " no fault " principle, how is it to be financed? Will some State insurance scheme have to be set up, or will it be operated through private insurance companies? It may take years before there gets on to the Statute Book legislation bringing any such scheme into operation. If there ever was any ground for the pre-emption argument raised by the noble and learned Lord, Lord Pearson, before the Bill received its unopposed Second Reading in another place, the argument is no longer maintainable now that the Bill is before your Lordships having, as I have described, passed through all its stages and having been most fully probed and examined in another place.
In a word, the Bill may be described as of temporary duration, and as limited in scope and designed to make sure that should, unhappily, there ever be another tragedy like the thalidomide case, the law clearly provides that the children who are the victims of that tragedy can obtain compensation for the disabilities they sustain. That was a major tragedy; but minor tragedies of that kind equally poignant can take place. Purely as an example, the case has been envisaged of a child born with disabilities because, long before birth, a hospital when giving a necessary and proper blood transfusion to the child's mother may have negligently used blood supplied by a syphilitic blood 361 donor. The child who in consequence suffers disabilities is given by the Bill the right to recover compensation.
That being its objective, the Bill's framework is as follows. It applies only in the case of children who are born alive after the Bill becomes law. Such children are given a right to compensation if they suffer from a disability caused by an occurrence which happens before their birth if the following characteristics apply to that occurrence. It must be an occurrence which constitutes a wrongful or tortious act committed by some person other than the child's mother, and which affects the capacity of either of the child's parents to have a normal healthy child, and which occurrence can be proved to have caused the child to suffer from a disability. The word " tort " is widely used to describe the wrongful invasion of another person's civil rights. For example, trespass, assault, negligent conduct causing damage to another person constitutes tort. There may also be breaches of a Statute designed to protect persons who would, or might, be injured by breach of a statutory provision which it creates. Whatever its form, in a given case there must be some occurrence constituting tortious behaviour on the part of some person towards one or both of the parents, affecting their capacity to produce normal healthy children.
In the case of the tort of negligence, the existing law provides that no tort is committed unless the negligent act results in damage caused to the person against whom the tort of negligence is committed. The Bill provides that in the case of negligence no such damage need have been caused and that all that needs to be shown is that the parents' capacity to produce a healthy child has been affected.
Ordinarily, the wrongdoer will be somebody outside the family circle—for example, the negligent hospital in the blood transfusion case which I envisaged —but, as the Bill is drawn, it could be anyone except the child's mother. It could be a brutal husband who assaults or injures the mother or a stranger who rapes the mother. These would be the rarer cases; but I hope the House will agree that it is right to exclude the mother. Theoretically, she could, by a wrongful act, affect the father's capacity to produce a healthy child. The Bill produced by 362 the Law Commission also excluded the mother from the category of potential wrongdoers. It was thought by those who prepared the Bill that the distress which would be occasioned if a child grew up believing that its disability was due to some wrongful ante-natal act committed by the mother against the child's father would greatly outweigh the advantage achieved by giving the child the right in law to recover compensation for its disability from the child's own mother. That is the basic framework on which the Bill is constructed, and it is contained in Clauses 1(1), (2) and (3).
I shall refer later to the question of the time within which, under our Statutes of Limitation, a child must bring its action; but this is somewhat complicated, although dealt with in Clause 1(3). It would be broadly true to state that the remaining provisions of the Bill deal with questions which arise as the result of the application of existing law to the basic framework which I have just described; and I shall shortly state how these provisions deal with those questions.
Clause 1(4) provides that an occurrence may be one which occurred either before or after the actual time of conception, but this, in the case of an occurrence taking place before conception, will not qualify as an occurrence giving the disabled child subsequently born a right to compensation if it could be established by those against whom the child makes its claim that, after that occurrence, the parents were aware that a risk was involved in the event of the child being conceived, except that the defence shall not be available when the father is the defendant and was aware of the risk but the mother was unaware of the risk.
This somewhat technical provision is in reality only an attempt to apply the well-known principle that damages cannot be obtained if it can be shown that the chain of causation between the act complained of and the damage in respect of which compensation is claimed has been broken by the intervention of some new happening—a "novus actus interveniens ", to use the Latin tag which is often employed—which can be pointed to as interrupting the flow of effect from cause, in the present context if, after the relevant occurrence, or tortious act, the parent or, if he is the defendant, the 363 father, were aware of the risk that would be involved if conception took place that would break the chain of causation. Apart from this, in so far as the child's right to compensation is concerned, it makes no difference whether the ante-natal occurrence is pre-conceptual or post-conceptual. It would be a mistaken view of the Bill to think that the child's right to compensation depends on the existence of, or damage to, a living foetus.
Clause 1(5) is designed to protect doctors from the risk of a multiplicity of actions by children, and provides that it will be an adequate defence if they have acted in accordance with the accepted medical opinion in treating or advising the child's parent. Clause 1(6) deals with the case where the parent has accepted some limitation of liability by a contract made by him or her of any liability to pay damages for injury caused to him or her, for example, in tickets issued for travel, admission to sports grounds and so on. As the child claims by virtue of the tort committed against the parent, the child will be bound by any exclusion clause in such a contract. This, again, is a branch of the law which in a sense may be said to be subject to review, as the Law Commission have recently published a report on so-called exemption clauses, recommending a number of changes. But in this temporary Bill it has been thought best to apply the existing law.
Clause 1(7) again deals with a practical question arising from the adaptation of existing law. Cases may arise in which the parent affected by the relevant antenatal occurrence may himself or herself have been in part responsible for the child being born disabled, because he or she was guilty of behaviour which was a contributory cause. In such a case subsection (7) provides that the damages recoverable by the child are to be reduced to such an extent as the court thinks just and equitable, having regard to the extent of the parent's responsibility.
Clause 2 deals with a special case in which a pregnant woman who knows, or ought reasonably to know, she is pregnant is driving a motor car. As T indicated, she can be under no liability under Clause 1, but Clause 2 contains an 364 exception to this general principle. She will in general be insured, and if she is not it may well be that the Motor Insurers Bureau would feel it right to treat her as insured. It was felt, as the Law Commission recommended, that she should be treated as being under the same duty to take care for the safety of her unborn child as she is to take care for the safety of other people. The Bill. as originally drafted, did not include the requirement that the mother should have been aware of her pregnancy, but on Report stage in another place the Solicitor-General moved an Amendment, which was accepted, that the mother should know, or ought reasonably to know, herself to be pregnant. Indeed, this was the only Amendment made to the Bill in all its stages through another place.
Without trespassing on the indelicate, it may not always be easy for a respectable lady to answer the question: " Did she on such a date know she was pregnant? " But it is to be hoped that in practice very rarely indeed will such a question be an issue to he decided before the courts and common sense will intervene. But on the general question whether, in these motor accident cases, a child affected by them should have a cause of action for damages even against its mother —which in effect means the insurers—there is, it is submitted, as a matter of humanity, a very strong case. It is submitted that any contrary argument should give way to the overriding consideration that the child who, through no fault of its own, suffers disability ought to be entitled to receive compensation.
Clause 3 provides that exposure, contrary to the prohibitions imposed by the Nuclear Installations Act 1965, of the child's parents to the effects of nuclear matter or ionising radiation, which affects the parents' capacity to produce a normal healthy child will give rise to a claim for compensation for disabilities sustained by the child of those parents as a result of that exposure. The 1965 Act imposes absolute liability not to cause such exposure, and a claim may be brought for breach of the prohibition within a period of 30 years from the exposure.
Clause 3 contains some other necessary adaptations to bring the provision in the 1965 Act within the general scheme of the Bill, and it is submitted that in order to 365 achieve the general objective of the Bill the extension of its provisions to disabilities suffered by children as the result of exposure of their parents to nuclear matter is clearly desirable. Clause 4 contains definitions which deal with some specific topics and I should refer to some of them. First, I think I should quote the definition contained in subsection (1), in wide terms, of the disability with which a child may be born. The definition is as follows:Any deformity disease or abnormality, including predisposition (whether or not susceptible of immediate prognosis) to physical or mental defect in the future ".It is submitted that clearly the definition must be in very wide terms because it is in the nature of things impossible to foresee what form the disability may take.
Subsection (3) provides that the child is to be treated as having sustained its disability and loss immediately after its birth. This is for rather technical reasons, but it produces the result that, under our existing Statute of Limitation 1975, the child may bring its claim up to the time when he or she reaches the age of 21 or when he or she first knew, or could reasonably have known, that he or she had suffered injury and by whose fault, whichever is the later. It may seem hard that a potential defendant may have a claim hanging over him for very many years. But in this respect the Bill merely follows our existing law, although where a pre-conceptual ante-natal injury is involved, the time may be considerably longer. As against this however the longer the time goes by before a claim is actually brought, the more difficult it will be to prove, as evidence will probably have disappeared.
In practice a claim by a child is conducted by its " next friend " or person appointed by the court to have charge of the conduct of the proceedings on the child's behalf. Ordinarily the next friend would be the child's father or mother, although somebody else is chosen if the father or mother, as the case may be, are defendants in the action. Any decision to settle the action by way of accepting a compromise has to be approved by the court under Order 80, Rule 10, of the Rules of the Supreme Court.
There are only two more topics that I think I should mention. One is that 366 dealt with in subsection (4); namely, compensation for loss of expectation of life. It is in our law a well-recognised head of damage that if A, by his wrongful act, either brings about B's instantaneous death or causes him injuries which will result in his expectation of life being shortened, A is in the case of B's instant death liable to pay damages to B's estate and, in other cases, to B himself. This may not seem easy to fit logically into the scheme of the present Bill where the ante-natal injury causes the child, though born alive, to die almost at once, though not so difficult when the injury complained of by the child is a shortening of its expectation of life.
The draftsmen of the Bill have in these circumstances adopted what is in effect a compromise solution. The Bill provides that damages for loss of expectation of life owing to ante-natal injury may be recoverable by the child, but only if he survives for a period of not less than 48 hours after the birth.
The Royal Commission may well wish to reconsider the whole topic of damages for loss of expectation of life. In the meantime, the Law Commission in their Report on Assessment of Damages (No. 56) have proposed the abolition of the right to recover damages for loss of expectation of life, and in its place have proposed the creation of a specific right to recover damages for bereavement. This again must await any amending legislation based on the findings of the Royal Commission. In the meantime, it is submitted that the solution contained in subsection (4) of Clause 4 of this Bill is most practical and sensible for this temporary measure.
The final topic I would mention is that dealt with in subsection (5): it is that the operation of the Bill is limited to one generation. It is submitted that this also is a sensible and necessary limitation of the scope of the Bill. I commend the Bill as a measure of justice to children who, through no fault of their own, have suffered injury—sometimes, as in the thalidomide case, very serious injury indeed. Whatever its failings, it, as it were, holds the legal position for them until the law is more exhaustively revised and improved. As such, I ask your Lordships' House to give the Bill a Second Reading.
My Lords, before the noble and learned Lord sits down, may I ask him to clarify one point. This may be obvious to a lawyer but I am not a lawyer. The child can sue after the passage of the Bill: but has the occurrence got to occur after the passage of the Bill?
§ Lord STOW HILL
No, my Lords. The occurrence need not occur after the passage of the Bill. That was a problem which was discussed exhaustively in another place and objections were taken on the ground that retrospectivity is undesirable in itself. The answer which I would respectfully offer to the House is this. I agree that retrospectivity is undesirable in circumstances in which it properly applies. If I adjust my tax affairs in accordance with the existing law as I know it and I produce a certain result on my tax liability, it is obviously unfair after I have done that in accordance with the existing law if perhaps years afterwards there is a retrospective change made in the law relating to that aspect of tax affairs which produces an entirely different result from that which I achieved by applying the existing law. That consideration does not apply in this case. If one considers the provisions of the Nuclear Installation Act 1965, and the long period of exposure, it will be practically unworkable if there is not some measure of retrospectivity. I am grateful to the noble Lord for making the point. It is one which has caused anxiety. But I submit that this is a question of balance and, on balance, the answer I have given should come down in favour of that degree of retrospectivity which the Bill includes. I beg to move this Bill be read a second time.
§ Moved, That the Bill be now read 2a —(Lord Stow Hill.)
§ 12.8 p.m.
§ The LORD CHANCELLOR (Lord Elwyn-Jones)
My Lords, I should like to begin by thanking my noble and learned friend Lord Stow Hill for the characteristically lucid and thorough way in which he has explained the provisions of this Bill. I am pleased to welcome the Bill both personally and on behalf of the Government. The law governing liability for ante-natal injury has long been obscure, and the necessity for clarifying it has in recent years become all too sadly apparent. 368 The courts in this country have never had an opportunity to dispel the uncertainty. There has never been a case which has really made that possible. Indeed, the very uncertainty in the state of the law may itself have been, and in the future may continue to be unless we clarify it, a factor in preventing suitable and worthy cases from coming before the courts.
Following the public attention which was, not surprisingly, given to the thalidomide tragedy in 1972, as my noble and learned friend said, my predecessor, the noble and learned Lord, Lord Hailsham, requested the Law Commission to undertake an urgent study of the difficult problems involved in this branch of the law. The Commission proceeded, as has been explained, to carry out very wide consultations with medical, insurance and legal experts of all kinds and only 18 months later, in June 1974, were able to produce their Report on Injuries to Unborn Children. I should like to pay tribute to the Law Commission for producing, in so short a time, so thorough and authoritative a Report, and also for annexing to it a draft Bill which is always one of the most valuable services that the Law Commission, in their reports, provide to Parliament.
The Bill now before the House, which very largely represents the proposals contained in the Law Commission's report, is, I believe, right both in its approach and in its scope. As my noble and learned friend has explained, it would enable a child who suffered a congenital injury as a result of another's fault to recover damages from the wrongdoer, subject to the usual defences available to a defendant in a tort action.
There is, plainly, a close relationship between this measure of law reform and the matters which are at present being considered by the Royal Commission on Civil Liability and Compensation for Personal Injury. I have given consideration to this earlier, as has the noble and learned Lord, Lord Pearson, who is the Chairman of that Royal Commission. I am very pleased to see that he now appears in the list of speakers today, and we look forward to hearing his views. The possible overlap between the work of the Commission and this Bill was fully discussed in another place. The Royal Commission has undertaken a 369 wide-ranging review of the whole area of personal injury compensation, of which congenital injury forms but a small, though an important, part. I look forward as I am sure does the whole House, to the Royal Commission's proposals in relation to this and other branches of the law, and would always advise the House to look with disapproval on any measure which would adversely or unjustifiably impede or pre-empt the Royal Commission's work. In my view, this Bill does not present any such problem. It is a limited proposal based on the principles of tort liability, whose purpose is not to create new rights and duties or a novel regime of liability, but simply to clarify the present obscurity of the law.
It may well prove to be only an interim measure, and may be overtaken when the Royal Commission's Report is implemented. None the less, in my view, we ought not to postpone carrying and giving effect to this Bill. We do not yet know what the Royal Commission will propose, nor do we know when it will report. In any event, art appreciable time is hound to elapse before full implementation of its report will be possible. In the meantime, it is highly probable that children will suffer congenital disabilities, some of them as a result of another's fault. It would be wrong that they should face the present uncertainty in the law, given the opportunity which this Bill now provides to make clear, as a matter of law, what their rights are.
I must add that this Bill is limited in its scope, as my noble and learned friend has explained. Unhappily, many thousands of children are born deformed or defective each year, and it would only add to the burden which those children and their parents and others responsible for them already bear, if we were to give the impression that this Bill provides an easy answer to all their problems; obviously, it does not. In only a limited number of cases will it be possible to establish liability and recover damages. As has been explained, in all tort actions causation and fault must he proved in the state of the law as it exists at present, and the origin of many types of congenital disabilities cannot readily be established. Many children are born disabled as a result not of anyone's fault, but of circumstances beyond human control. Such children will not benefit directly 370 in any way from this Bill, and false hopes should not be raised. The most we can say is that, in making clear what the law is, a few children may benefit directly and others may be benefited indirectly, in that the clarity which the Bill will bring in place of the present uncertainty will at least enable those who cannot claim under it to know where they stand and to make plans for the future. But even to benefit a few children, disabled by the tortious fault of another, is a wholly and worthy legislative object.
It is indeed a modest claim that we make for the Bill, but its very modesty serves to show that we need not wait for the Royal Commission. It may be that in the future there will be a regime of compensation for personal injury which Will benefit children w hose disabilities cannot be shown to arise from the fault of another. But such a scheme is far beyond the limited scope of this Bill which. as I have said, is intended to clarify the law in this area of personal injury liability. More wide-ranging and fundamental reforms—for example, the imposition of" nu fault liability "—arc relevant to all forms of personal injury compensation, and resolution of the problems to which that proposal gives rise must await the conclusion of the Royal Commission's deliberations and be decided upon in that wider context.
Finally—and I wish to address the House only briefly on the Second Reading of this Bill—I am sure that the House would wish me to thank my noble and learned friend Lord Stow Hill for taking up what I regard as this very useful law reform measure. I am very pleased that the primary responsibility for it rests in the hands of one whose widely reputed learning, thoroughness and expertise—and, not least, his humanity—has shone through his speech this morning. Those gifts will, I am sure, be of great benefit when we reach the Committee stage of the Bill. I accordingly have great pleasure in supporting the Second Reading of the Bill.
§ 12.18 p.m.
Viscount COLVILLE of CULROSS
My Lords, I shall have to ask your Lordships to wait for a moment before we listen to the noble and learned Lord, Lord Pearson, whose views we are all very anxious to hear, because despite the 371 two admirable speeches to which we have listened I still have a few things to say about this Bill, though perhaps not as many as in some circumstances might be necessary. The noble and learned Lord, Lord Stow Hill, has done such a thorough job in explaining it to us that none of that need be repeated, and I am very grateful to the noble and learned Lord the Lord Chancellor for giving his views about the relationship of this legislation to the Report of the Royal Commission, when it comes.
Any of your Lordships who happened to be listening to the radio this morning may have heard a rather remarkable boy. He was one of the victims of thalidomide, but he certainly was not complaining about it. When one listened to the enormous—indeed, staggering—range of activities that he appeared to enjoy, one was at once very heartened. But, upon reflection, it occurred to me, at any rate, that the adaptation of the equipment and everything that he uses in the course of his life must he very expensive, and I do not suppose that the family of the boy has a great deal of money. There is, therefore, a practical purpose behind this legislation and for that reason, if for none other, I find it very easy to welcome.
Both noble and learned Lords who preceded me have said that, as it stands now, the law on this subject is uncertain. Indeed, the noble and learned Lord the Lord Chancellor went on to say that it has been long obscure. It has always been obscure—except, apparently, in Scotland. Certainly South of the Border there has never been any decided case which deals with this matter. It is this fact more than anything else which persuades me that legislation is at this stage needed. In other countries there have been attempts by the courts in the course of litigation to specify what are people's rights. In Southern Ireland there has been legislation on the matter but in this country there has been no decided case. Perhaps of all the reasons which the Law Commission put forward in paragraph 110 of their report in support of the need to legislate now, this is the most important.
Not only is the law uncertain—and it would no doubt be very risky and expensive for any individual litigant to try to discover what his Common Law rights are 372 —but there is the corollary that upon the facts of any given case it is unlikely that one would get the answer to all the questions, because the facts simply would not cause all the questions to be asked, let alone answered. Those two points, very forcibly made by the Law Commission, seem to me most certainly to justify the introduction of legislation at this stage. In so recommending, the Law Commission have been very careful, so far as they can, to avoid conflicts.
There are a number of Law Commission reports with which provisions in this Bill potentially might conflict. There is a report by the Law Reform Committee and there is, of course, the forthcoming report of the Royal Commission. As the noble and learned Lord the Lord Chancellor has said, this Bill has been very carefully considered in another place and certainly the Law Commission themselves have taken full account of the possibility of a conflict with the noble and learned Lord, Lord Pearson, and his Committee. Paragraph 3 of their report deals with this possibility, and we know that the Government, when setting up both matters for consideration, had this in mind as well. I should very much like to hear what the noble and learned Lord has to say in a moment about this matter, because we should all be very concerned if he thought that there was some undesirable by-product from this legislation which would in some way curb what he and his committee might wish to report. Certainly, I should like to reserve judgment about anything that he says, because who better than the noble and learned Lord to tell us about these matters? At the moment, however, I am convinced by what is said by the Law Commission themselves, by what has been said in another place and by what the noble and learned Lord on the Woolsack has told us this morning.
There is one point about this. Bill which is very evident. I do not wish again to go into all the details, but my noble friend Lord Hawke found that there was no easy answer to a question which, as a layman, he validly wanted to put. The reason for this is that the Law Commission have produced an incredibly dense piece of drafting—and by " dense " I do not mean stupid; on the contrary, the drafting is immensely acute. The Law Corn-mission have had to stitch this provision 373 into the Common Law so that it will knit together with other parts which in themselves are not static but flexible.
They have also had to fit this provision into the law of contract, in such cases as the exemptions clauses, and they have had to deal with a number of different questions of policy which are very finely balanced. For myself, I find it difficult to decide about the merits of Clause 2, the sole exception to the case which is general in the Bill that the tort committed by a mother will not give rise to liability that can be enforced by the child. It may be that we are trading upon the good nature of the Motor Insurance Bureau but fortunately we are lucky in having that institution to back up the compulsory third party insurance under the Road Traffic Acts, and I suspect that on balance the answer is right.
There is also the point of retrospectivity that my noble friend Lord Hawke raised. While I agree with the answer given to him by the noble and learned Lord, Lord Stow Hill, I would suggest to the House that there may be a further point in this respect. Whenever the event which turns out to have caused the injury may have occurred, if the Bill is merely clarificatory of the existing law then we are not creating a new right: we are merely explaining what in future may be the details of the enforcement of an existing right. And if the injury has already occurred before the Bill comes on to the Statute Book it would not follow that without the Bill it would not have been a case where the child could have sued. Therefore I find that this is a good deal less reprehensible than almost all other retrospective legislation.
There is only one other point I want to mention, and it is perhaps both general and also rather technical. One of the enormous advantages for everybody of the Law Commission's procedure is that not only do they produce a draft Bill at the back of their report but that they also put beside it explanatory notes. For those who are going to have to interpret the law—and, as I say, this Bill is very closely and cunningly constructed—those explanatory notes will be of immense value to text writers, but there is one practical problem. As the noble and learned Lord the Lord Chancellor has told us, there have been minor amendments to the Law Commission's text. I do not 374 think that any of them are of great substance but some of them are sufficient to change the nuances in the legislation from what it was that was explained by way of the notes on the Law Commission's report. I know of no device whereby amended explanatory notes can be produced so that an up-to-date version will be available to those who wish to use this Bill—as it will be when it has passed through Parliament.
Without having considered the matter too carefully, I would simply make one suggestion. I would not for a moment wish to incur the wrath of the noble Lord. Lord Shepherd, by suggesting that there should be extra public expenditure, but when, for instance. the Bill comes to be printed in the loose-leaf Statutes it might be that on that occasion loose leaf amended notes could go with it. I simply put it to the noble and learned Lord the Lord Chancellor as a possible suggestion whereby we could get the maximum benefit from the work put in by the Law Commission. But that may not he possible.
With those comments, I would recommend from this side of the House that this Bill should indeed be given a Second Reading. We shall have to see whether there is anything left to deal with in Committee, because the Bill has already been very thoroughly discussed in another place.
§ 12.29 p.m.
§ Lord PEARSON
My Lords, as your Lordships have been informed, I have to declare an interest or a special position as the Chairman of the Royal Commission to which reference has been made: the Royal Commission on Civil Liability and Compensation for Personal Injury. I have to explain why the Royal Commission have had, and still have, some misgivings about this Bill in its effect on their work. Let me say at once that the explanations which have been given by my noble and learned friend Lord Stow Hill and by my noble and learned friend the Lord Chancellor as to the limited scope and possibly merely temporary duration of the Bill when it has become an Act, are of great assistance to the Royal Commission. I appreciate the great value to us of what has been said and I shall come back to that later.
375 I have to begin by explaining the reasons for the misgivings which we have felt and still feel. I am in rather a difficult position, having to steer between Scylla and Charybdis and various other dangerous rocks and whirlpools. On the one hand, I must not try to anticipate or to forecast what will be the ultimate findings and recommendations of the Royal Commission. Any attempt to present any kind of controversial argument on any point would lack the necessary foundations and therefore must be completely ruled out. On the other hand, I have to explain the attitude of the Royal Commission and why they have not welcomed this Bill. It is because this Bill, on the face of it, pre-empts and pre-judges an important issue which is expressly within the terms of reference of the Royal Commission and is intimately associated with a number of other questions which we have to consider. Eventually we have to consider them altogether.
The principle of this Bill is to recognise and affirm and regulate the application of the action of tort to congenital disabilities caused by pre-natal injuries. There is considerable doubt whether congenital disabilities are a suitable field for the operation of the law of tort. I am not seeking to anticipate any conclusion of the Royal Commission. We may say that they are suitable, or we may not. If we come to the conclusion that they are a suitable field for the action of tort, then of course no major difficulty will arise, although there might still be some questions of minor detail to be considered. But if we come to the conclusion that the action of tort is not a suitable means for providing compensation in such cases, and that something wider and radically different is required, then we shall be in the awkward situation of having to recommend either the total repeal or drastic modification of an Act of Parliament only recently passed.
Therefore I would suggest to your Lordships that plainly this Bill could be an obstacle to the work of the Royal Commission. In order to show that this is not merely an academic point, and in order to make plain what the attitude of the Royal Commission is, and has been, I will read a passage from a letter which I wrote to The Times in January last after careful consideration and full approval 376 by the Commission as a whole. I said this:Parliament should also be made aware of the special objections which can be and have been urged against relying on the operation of the tort action in the field of ante-natal injuries:First, according to the expert evidence which we have received it is only in the rarest of cases that even the physical cause of a congenital deformity can he ascertained, and even if that is ascertainable the plaintiff in an action of tort would still have to prove that the deformity was caused by fault, usually negligence, on the part of the defendant.Secondly, thus the Bill, so far from dealing comprehensively with a widespread and highly distressing social problem, could result in compensation for no more than a minute proportion of the children concerned. The Bill therefore would raise many false hopes, not least by its very title.Thirdly, there would still be delay and expense, especially in difficult and complicated actions.Fourthly, the accusations and counter-accusations in such cases could have an adverse effect on family relations and on relations between doctors and patients. For example, in an action against a drug company or a doctor, the defence might allege that the damage to the unborn child was caused by the mother's own action such as smoking or drug addiction.I hope it will be accepted that this Bill falls far short of providing a comprehensive solution to these problems. If it is passed, it will come into effect probably less than a year before the Royal Commission's report is presented, and that report may recommend a different system of compensation.The Royal Commission understand why this Bill is being introduced but feel it right to draw attention to the complexities of the problem.That is what was said in the letter. I do not wish to add anything to it, but I do wish to acknowledge now with warm appreciation that important assurances have been given. In short, they have been given first in another place and now in your Lordships' House. I understand the assurances to be to this effect, that the passing of this Bill will not be allowed to pre-judge or prejudice the consideration of the Commission's conclusions and recommendations when their report is made. I should refer also to paragraphs 5 and 6 of the Law Commission's report, on which this Bill is based. I will read one sentence. They say this:It is our view that any legislation based on our proposals neither can nor should pre-judge the much wider issues which the Royal Commission is considering.So my Lords, while we—the Royal Commission—do not like this Bill, we take comfort from the assurances that 377 have been given and we shall of course rely upon those assurances in forming our conclusions and making our eventual recommendation.
§ Lord BRADWELL
My Lords, before the noble and learned Lord sits down, I should like to ask one question. Would he consider that what the noble and learned Lord the Lord Chancellor called. " circumstances beyond human control ", would include the testing of nuclear devices, since a subject can now sue the Crown and the most expert geneticists have given it as their considered opinion that a calculable and definable number of babies are born blind or deformed as a result of these tests?
§ Lord PEARSON
My Lords, I can only assure the noble Lord that these very difficult problems are occupying the earliest attention of the Royal Commission, and we will certainly do our best to provide some more adequate and comprehensive remedy for what we fully appreciate are infinitely distressing cases—more comprehensive than would be provided by this Bill.
§ 12.38 p.m.
The COUNTESS of LOUDOUN
My Lords. I must confess to having had grave misgivings when I first read this Bill, hut having carefully gone through all the stages of its progress through another place I find that now many of my fears have been allayed.
This Bill will confer clear legal rights on children who are injured before birth; those whose disabilities can be shown to result from a pre-natal event caused by the fault of another. It will not assist those whose disabilities result from inherited characteristics or natural illness or pure accident. It will not assist those whose disabilities result from unidentifiable causes. So it is a modest Bill, and certainly it will have a limited scope. Only a small number of children will benefit from it directly, but the very fact that damages will be awarded to them will draw attention to the severity of the problems of all disabled children.
What are some of the arguments against this Bill? Some people object to it on the ground that litigation by families will cause distress. but the Bill compels no 378 one to sue; it merely gives the opportunity to those who wish to do so. It has also been claimed that the Bill, which will help a small minority of handicapped children, will jeopardise the long-term interests of the majority.
Here. I should like your Lordships to consider the thalidomide campaign and the financial benefits that stemmed from it. It was as a direct result of this campaign and the pressure it generated that the Rowntree Trust was set up, and £3 million was allocated to help all disabled children throughout Britain. This is still continuing, with more money being allocated all the time to help these children. In the three years since it was launched, this Trust has helped some 22,000 families at a cost of over £6 million: so many more than the original thalidomide victims have benefited.
My Lords, we are all waiting anxiously the report of the Pearson Royal Commission on Civil Liabilities. It may be some time before we receive this report and for the subsequent legislation to be enacted. Meanwhile, some children will have no legal redress for injuries. Surely, anything that extends the rights of disabled children is to be welcomed, however limited it may be. The system of no-fault liability, a very firm and more equitable system, is one which I favour, as did many of my friends interested in the question of disabled children. This system has been working very well for some time in New Zealand, and I very much hope that eventually we will be in a position to adopt it here; but this is very much in the future. In the meantime, the Bill before us, despite its limitations and drawbacks, may help a number of disabled children, small though that number may be. I do hope that your Lordships will give the Bill a Second Reading today.
§ 12.42 p.m.
§ Lord PLATT
My Lords, it may seem very rash of me to rise to speak on a subject which so far has been discussed, with the exception of the noble Countess, Lady Loudoun, who has just sat down, entirely by distinguished and learned lawyers, but in a way it is particularly for that reason that I felt that as a doctor perhaps I should get up and say something. To me, this Bill presents enormous 379 difficulties. It presents difficulties of proof as to whether the disability was or was not done by the supposed tort, and difficulties as to what is a tort in these circumstances. I was pleased to hear the words of the noble and learned Lord, Lord Pearson, who carefully did not come to any final conclusion but begged to doubt whether adjustments to the law of tort were a relevant way of dealing with the question of congenital deformities and disabilities.
My Lords, one difficulty which I think can be rapidly got out of the way, although it cannot be answered, is the question of the Statute of Limitations. Do I understand that a doctor who took a certain action, perhaps X-raying a pregnant woman at a very early stage of the pregnancy, must keep his records for 21 years in case some deformity or congenital disease develops in the child? Is he under possible threat of litigation for the whole of that time? I agree with anyone who says that this is a very difficult Bill to read. It seems to me that Clause 1(3) leaves this matter very obscure, but I thought that the noble and learned Lord, Lord Stow Hill, referred to a period of 21 years. However, that is just one of the difficulties.
As to what is tort and what is not, I am not a lawyer, and am not arguing this from the legal point of view, but I should like to give your Lordships one or two examples. An example which I know only too well is that of a woman who developed rubella, or German measles, at a very early stage of the pregnancy. She consulted a very distinguished obstetrician who advised that the chances of any disability were small, that the pregnancy should go on and should not be terminated. The child was in fact born deaf, with all the disabilities and sadnesses that follow such an incident. Was that doctor committing what I understand is called a tortious act when he gave that advice? Your Lordships may say that the answer is simple, but I do not think it is simple at all. I think it is a case which might well be fought in court. Having been fought, is it then going to have the repercussion of possibly influencing a doctor's advice because behind him he knows there is this Bill which may lead him into trouble if he does not give advice in accordance with what seems to be the recognised view? There is no end to this, because in bio- 380 logical matters, there is no beginning and there is no end. The consultation might have taken place a little further on in the pregnancy, and then the doctor's advice might have to be different in order that he could not be sued for giving wrong advice. What happens if a child is invited to a party, and the person giving the party fails to disclose that one of the children in the party is in quarantine for rubella, and the mother of the other child develops it, with the possible consequences? Is that a tortious act, or is it not?
Then there are all kinds of modern ways, really remarkable ways, of finding out from examination of the fluid which surrounds the unborn child, and by other means (X-rays and so on), the state of the unborn child—whether, for instance, it is a carrier of a known hereditary disease which occurs in that particular family. Perhaps it might be haemophilia. The sex of the child can be determined. All these are actions which in certain cases could be deleterious to the mother and which might be in occasional cases disastrous. None of the modern methods of investigation in medicine is entirely free from risk. Here again is a case that I can see being argued in the courts for a very long time and at very great expense.
My Lords, there is then the question of whether the disabilities were attributable to the supposed tort. I think all noble Lords have referred to the difficulties of proof in most of these cases. It seems to me that those who drafted the Bill and those who support the Bill—and, of course, I support the humane aspects which led to its drafting—have been over-influenced by the rather obvious and very tragic case of the thalidomide babies. But there are far more congenital disorders and disabilities which are due to chromosome mutations which can be induced by radiation, or may occur through what we call natural causes; in other words, causes which we do not know or understand. The chance of a certain mutation occurring in a chromosome may be X in 100,000 births. If radiation is being used, or something of that kind, it may be X + 10 in 100,000 births, but no one can possibly tell whether this particular case is one of the naturally occurring ones or one of the extra ones which occur when radiation is used in certain circumstances.
381 For all those reasons it seems to me that this Bill. with the best of intentions, is going to give rise to a very large number of difficulties.
There is one matter to which I should have referred, which is Clause 1(5), which is a sort of let-out clause for doctors, if I may put it in that way. The actual wording of it is:The defendant is not answerable … if in a professional capacity he took reasonable care having due regard to then received professional opinion applicable to the particular class of case.So. far from letting the doctors out of a difficult situation, I think that is adding to their difficulties enormously. Experimental medicine must go on. If unjustifiable experiments are being done on human persons. there is a remedy at law for anybody who is injured thereby. But I would remind your Lordships that every operation that is ever done has been done for a first time. It seems to me that these new developments of finding out about the unborn child would not have taken place if doctors looked at the Bill and read Clause 1(5):…having due regard to then received professional opinion applicable to the particular class of case.If you read it literally, no further advances in medicine can take place. I know that is not the intention and it would not be interpreted in that way, but nevertheless it does not seem to me to add clarification in this very difficult subject.
§ 12.52 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I had not intended to intervene, but may I just make two or three very short comments. First, I think that the noble Lord who has just spoken has perhaps overlooked the fact that the burden of proof in all these cases will be on the plaintiff. The difficulty of ascertaining liability and causation is one which inures to the advantage of a potential defendant, among others the medical attendant, and not to his disadvantage. The more difficult it is the less likely it is that the plaintiff should succeed. With the solitary exception of the application of the Statute of Limitations, which is a Committee point, I think he can reassure himself on most of the individual cases he has mentioned. In particular I am quite clear in my own mind that in the second 382 of the two cases he mentioned—namely, the case of a doctor who advises against a termination of pregnancy—there could be no possible liability, because the child who is born deaf as a result of an infection by the mother of rubella cannot under this Bill claim for not having been aborted before he was born. This, I think, is absolutely plain on the construction of the Bill.
But I intervened simply to clarify my own rather limited part in what I might call the conception of the Bill. f originally came across the thalidomide problem long before most other people; it occurred either in 1957 or 1958, when I was in touch with the Medical Research Council, and it was then I first heard of the thalidomide problems. I was then very much concerned about the legal possibilities in the case. I was persuaded by the then Secretary of the Medical Research Council that the children could probably not have recovered, partly because of the absence of any clear legal liability for ante-natal injuries, and partly because he persuaded me that in the then state of the medical art the injuries could not have been foreseen. However, it was apparent to me, from then onwards, that serious legal problems either could or most likely would occur from time to time. When the thalidomide actions began, and I found myself halfway through them as Lord Chancellor, I felt it was absolutely essential that the Law Commission should recommend legislation to deal with the whole problem of ante-natal injuries, due to the vast complexity of the problems involved. This was accentuated by the fact that there was current litigation in Scotland which resulted in a Scottish case deciding that under the law of Scotland there was a liability for ante-natal injury. It seemed to me to be intolerable that there should be one law in this respect for Scotland and one for England and Northern Ireland. This is what led me to refer the matter to the Law Commission.
At a somewhat later stage I became persuaded that this was not enough, partly because the thalidomide case developed in its various complexities, but partly also because an increasing amount of evidence began to emerge that certainly in Massachusetts and certainly in New Zealand a case existed for non-fault liability in personal injury cases 383 in general. It was even argued that it may well be the case—I am not seeking to pre-empt what the noble and learned Lord may ultimately decide—that without increasing expense to the insurance companies and without loss to the potential plaintiffs a more efficient system could be arrived at whereby those who suffer from accidents of one kind or another, if I may use the word in a generic sense, could get compensation almost as generous as that which they now get under the far more doubtful chances of litigation.
I therefore persuaded, or helped to persuade, my then right honourable friend the Prime Minister to set up the Pearson Commission, and I was, I think, the author of that idea. I made it very clear at the time, I think, in this House but certainly through my right honourable friend in another place, that, although there was a potential conflict between the two bodies, the Pearson Commission report was not to prejudice anything which might emerge from the Law Commission recommendations under the earlier reference. It seemed to me that this was necessary because the Law Commission recommendations were an interim step to take in the light of the existing law, whereas the Pearson Commission recommendations would be a far more widely ranging change in the law on liability for injuries over a much wider field and certainly not confined to antenatal injuries. It is not for me to judge between the two points of view which have been put forward, but certainly from the very start it has been made clear that Parliament would be free to legislate on the more limited field and on the interim measures without prejudice to the ultimate results of the Pearson Commission. I thought it right to lay that down as my own understanding of the matter, simply as a matter of history.
§ 12.59 p.m.
§ Lord STOW HILL
My Lords, it is customary for the mover of a Bill to reply shortly to the debate. I should like to begin my remarks by thanking your Lordships very sincerely for the way in which your Lordships have received this Bill. May I also associate myself with what my noble and learned friend the Lord Chancellor said in reference to the work of the Commission. Their work 384 was extremely thorough, really very brilliant, and undertaken in a very short time. I feel that 1 am at fault in not having said that with regard to their work when I was making my opening speech.
May I refer shortly to some of the things that have been said in the course of the debate. May I say to the noble and learned Lord, Lord Hailsham of Saint Marylebone. that I should have thought that he deserved very well indeed of us in having done what he has just described in having engineered the setting up of the Royal Commission, for reasons which I think I indicated in broad outline in my opening remarks.
May I say to the noble and learned Lord, Lord Pearson, that I certainly would think it quite out of the question that anything which is done as a result of this Bill, anything enacted by this temporary Bill, could conceivably preempt or prevent Parliament giving such effect as it thought appropriate to the recommendations which the Royal Commission may make. The noble and learned Lord asked, could I give, I think he put it, a personal assurance that Parliament would not do that. Of course I cannot do that, because I cannot govern the view of Parliament. It is for Parliament to decide what it does. No doubt in the ordinary way, when the Royal Commission has made its recommendations, they will be considered and carefully pondered on, and in due course it will be for the two Houses of Parliament to decide what. if any, action they decide to take to implement those recommendations. As I have said, I greatly hope that they will implement any recommendation that may be made in favour of no-fault liability. I will give to the noble and learned Lord the assurance that, so far as in me lies, so far as I can influence it, I certainly will do my best to see that any recommendation of the Royal Commission which it seems ought to be accepted will be in fact accepted and substituted for anything which is contained in the Bill which the House is at present considering. I hope that the noble and learned Lord will feel that that is, in the first place, all that I can assure him, and, secondly, that he will think that I have correctly stated the position, and that the work of the Royal Commission is adequately safeguarded in being left at the discretion and to the decision of Parliament as a whole.
385 May I turn to the noble Countess and to the noble Lord, Lord Platt, both of whom—neither of them lawyers—contributed observations of the greatest value to this debate. The noble Lord, Lord Platt, apologised for taking part in the debate. I hope that he will withdraw that apology. I am sure that we all welcome him as a participant in the debate because he could add a great deal which lawyers very often are not in a position to add. May I make some observations with regard to what he said. He said, " How are you going to prove fault'? " If it cannot be proved, as the noble and learned Lord, Lord Hailsham, just said, then the case will not he established on behalf of the infant: that is that. I hope that it will not he as difficult as all that to prove a case. I accept that opinion changes, arid that various features are present in different sets of circumstances which may make it difficult to prove. All I can say is, so much the worse for the plaintiff. But that applies in every case which comes by way of litigation before the courts.
The noble Lord said, " Isn't it very hard on a potential defendant, a doctor, that he might have to wait years under our existing Statute of Limitations before he knows whether he is going to he held liable in respect of some deformity'? " That is the case with regard to every other defendant who has to conform to our existing scheme of limitation of actions. When you are concerned with an infant you may have, under our existing legislation, doctor or no doctor, to submit to having a claim hanging over you for years and years and years: the period until the infant reaches the age of 21, or could first know that he had a cause of action against sonic particular defendant, whichever is the longer. So in that respect the doctors are in no worse a position than other citizens, although I can see that they are in perhaps a rather worse position in regard to some pre-conceptual injuries. The difference is not so very much. This was again carefully considered, and one had to come down to a decision one way or the other.
§ Lord PLATT
My Lords, perhaps I could intervene to say, in view of what the noble Lord has said and in view of what t he noble and learned Lord, Lord Hailsham, said, that I was not trying to make matters easier for the medical 386 profession. I pointed out certain ways in which I thought it could he made difficult. What I was concerned about was to point out the difficulties it was going to make for everybody: the plaintiff, the defendant, and the rest of us.
§ Lord STOW HILL
My Lords, I am sorry if the language I used conveyed a misleading impression. I simply meant that everybody has to put up with this, or nearly this; people are not always quite in the same position. I feel really that he is much better protected than he indicated in his view by the provisions of Clause 1(5). Suppose you take a doctor who has treated a particular patient, a mother or anybody else, and in applying the treatment he has used professional knowledge as existent at the time. The noble Lord read out the language:The defendant is not answerable to the child, for anything he did or omitted to do when responsible in a professional capacity for treating or advising the parent, if he took reasonable care having due regard to then received professional opinion applicable to the particular class of case …If the doctor treating the parent uses the accepted canons of treatment as understood at that time, then provided always that he does not act negligently and provided he uses " reasonable care ", as the subsection says, he is under no liability at all. I submit that that is a considerable guarantee, and that it adds greatly to the protection of the professional man, and not only the doctor.
The noble Countess was concerned with the possibility of this sort of thing causing distress to families. The Law Commission in particular had consultations and invited the opinions of judges, the President of the Family Court, and there were oral discussions. As a result of the discussions and deliberations which took place on the circular that they sent round, and of the meetings, they left out the mother as a possible defendant for that sort of reason. As I said in my opening speech, it was thought better that the child should not have compensation where the mother was to blame, rather than that the child should grow up thinking, " My disability is due to some fault of my mother. " That might have been the right or the wrong solution, but it was a solution which was reached, may I say, as a matter of a practical 387 approach to a desperately difficult problem, as I accept. I think that that is all I can usefully add in reply. and having said that—and I apologise for having inflicted on your Lordships such a long speech in opening the debate—may I hope that your Lordships will agree to give this Bill a Second Reading.
§ On Question. Bill read 2a. and committed to a Committee of the Whole House.