§ 2.57 p.m.
§ Lord Allen of Abbeydale rose to call attention to the inconsistencies in the existing provisions for compensating those suffering personal injury; and to move for Papers.
§ The noble Lord said: My Lords, I beg leave to move the Motion standing in my name. I should like to thank all those who are taking part in the debate and to say that I fear that the list of speakers has been sadly depleted by illness. I make no apology for again going over some familiar ground this afternoon. These are issues of great concern to some of the distressed, inarticulate, and unorganised members of our society; and anyway, my Lords, I am not all that keen on giving up too readily.
§ Out of a wide range of possible topics I think I shall have time today to touch on only three. I begin by saying that I am conscious of the constraints on public expenditure and the social security system, and appreciate that it is out of the question to think of removing all the inconsistencies and anomalies which exist. It is at most a question of moving the boundary lines and making them a little more sensible, and there is certainly plenty of scope for that.
§ I am not a lawyer and shall probably be told that I have got things a bit wrong, but I think it is reasonably safe to begin by saying that the general rule is that an injured person can look for damages only when he can establish that the injury was caused by the negligent act of another person. But there are exceptions. In a number of instances the law puts a strict liability on the defendant, by which I mean that he does not escape liability simply by proving that he was not negligent. I have in mind injury arising from nuclear installations, the underground storage of gas, and from things dropped on you from a civil aircraft.
§ The first question I wish to raise today is whether this doctrine of strict liability should be extended to vaccine damage, where it is, indeed, very hard to establish that there has been negligence. The basic argument is that since it is society which asks for vaccinations to be carried out in the interests of the community, the community should shoulder responsibility when things go wrong, as unfortunately they occasionally do.
§ As chairman of MENCAP I am only too well aware of the devastating effect, including expense, which brain damage to a child can have on a family. I saw with some interest not long ago that the High Court have approved damages of no less than £280,000 to a brain-damaged nine-year-old boy following an operation, where in his case negligence had been established.
§ The Royal Commission on Civil Liability and Compensation for Personal Injury, the Pearson Commission, in its report now seven long years ago recommended that strict liability should indeed be extended to vaccine damage. However, while the Labour Government were brooding over this and 659 associated recommendations, they introduced a Bill which became the Vaccine Damage Payments Act 1979, following public disquiet during an epidemic over a number of vaccinations which had gone wrong. This measure provided for a payment of £10,000 for serious disability which could be shown, on a balance of probability, to have resulted from vaccinations. This sum was not indexed and the whole discussion on the Bill was on the basis that this was a temporary measure pending a long-term solution.
§ I have been tempted to follow what seems to have become the fashion and quote some of the statements made by Conservative spokesmen from the Opposition Benches who welcomed the Bill as a temporary first step. Suffice it to say that when they came into power things evidently looked rather different. They often do, my Lords! I heard with some concern the statement made by the noble Lord, Lord Glenarthur, on 7th March last year (at col. 350 of Hansard) that the Government were satisfied that the Act operated fairly and that they had no plans to review or extend it, even though he conceded that the equivalent of £10,000 was already £16,000. I do not know what it is now. I know even less what it will be in, say, 10 years' time. Nor was this the only serious criticism of the Act. It seems so astonishing that the Government should regard this stop gap measure as a permanent unamendable feature of the landscape that I must ask whether Lord Glenarthur's pronouncement is really the Government's last word?
§ I still hanker after going for strict liability. I have even contemplated introducing a Bill for this purpose. I cannot help contrasting the Government's attitude over vaccine damage with their attitude on criminal injuries. The Criminal Injuries Compensation Board makes awards based on the court's tort procedure on a substantial scale: £32 million in 1983–1984 and by now it is over £200 million since the scheme began. We have been assured by the Government that these payments are justified on the basis that compensation should be paid at public expense as an expression of public sympathy to the victims of violent crime. One wonders whether compensation is not even more justified for victims of vaccine damage who have suffered directly as a result of action encouraged by the Government themselves and the cost of which, incidentally, would be very much less than that handed out by the Criminal Injuries Board. As the months go by we may see interesting decisions from the English or Scottish courts or even from the European Court of Human Rights, but I think I had better leave it at that for today.
§ Consideration of strict liability naturally takes me on to my second point relating to the draft EEC directive on product liability, by which I mean the liability to pay compensation for injury caused by a defective product. This draft directive has been kicking around since 1976. There is the problem, which I know the West Germans feel keenly, on whether liaiblity should be subject to financial limits. But the main sticking point has been the insistence of our Government that there should be a special defence of development risks or, to use the jargon, that there should be a "state of the art" defence. Putting it starkly, this means that if there were another 660 thalidomide tragedy—and notwithstanding all that is now being done to test new drugs, such a possibility cannot be ruled out—there would be no prospect of succeeding in any action against a drug company if the company could show that it had acted in the light of the best information available at the time.
§ It is argued that the absence of such a defence would stifle initiative and impose unwelcome insurance costs on the industry. However, it is argued the other way that it is wrong that the individual citizen should carry the whole burden, and it is urged that he ought to be able to look for safety in the products that he purchases. The conclusion that the state of the art defence should therefore not be allowed has been reached by, among others, the two Law Commissions, the Royal Commission, a 1977 Council of Europe Convention, the French Government, as I understand it; and the West German Parliament has already enacted legislation removing this defence in the case of pharmaceuticals. It is quite a formidable list.
§ May I ask whether the Government after all these years see any prospect at all of achieving a worthwhile directive or, in the end, is there likely to be a settlement (if there is a settlement at all) for a weak document which will allow all parties to do whatever they see fit? In that event do the Government have any plans for strengthening our domestic law, perhaps by developing the ideas floated in the White Paper of last July about the safety of goods? I think something needs to be done.
§ Now for my third and last point. The Pearson Commission finding that tort and social security had grown up side by side as though they had very little to do with each other, made it one of its principal recommendations that social security benefits should be set off in full against tort awards. There have been some indications that the Government are not unsympathetic. The noble and learned Lord on the Woolsack I think pretty well agreed on an earlier occasion that it would not be a bad idea to pension off that rather odd compromise enshrined in an Act of 1948 which obliges the courts to deduct one half of certain social security benefits paid over a period of five years. The Criminal Injuries Compensation Board for its part is under instructions to make full deductions. I recall that in 1981 a White Paper about industrial injury schemes included suggestions for ending duplication between social security and tort payments and foreshadowed a Bill to be passed into law by 1984. Alas! we have seen no sign of that Bill or, indeed, of any other in this context. Could not the Government take the plunge and introduce this sensible reform? It would avoid over-compensation, which certainly exists at the moment, and it would not mean putting any burden on public funds. I should have thought that it might well have appealed to the Government.
§ There is much else in the Pearson Report which has never even been fully debated, let alone implemented; but I think that I must content myself with my eye on the clock in making those three points, which, as I say, are drawn out of many. Before I sit down, there is just one problem of Government organisation underlying these issues which I should like to mention. That is the problem of organising matters in Whitehall so as to cope with issues which straddle the boundaries of a 661 number of departments and where no single department is obviously in the lead. It was interesting that, when the Pearson Commission was set up, quite unlike any other body of inquiry of which I have had experience—and I have had experience of quite a few—we were not presented with any initial evidence, factual or otherwise, from any Government department but we had to go out ourselves and ask for it. I cannot pursue this point today but it is important and it is one which arises rather vividly in this context.
§ I would conclude by saying merely this. This Government are often accused of lacking compassion, although no one would ever dream of levelling such a criticism against the noble and learned Lord who is to reply to this debate. I would say to him that the topics we are discussing today provide admirable opportunities for the Government to show that their critics have got it wrong. I beg to move for Papers.
§ 3.12 p.m.
My Lords, not for the first time, I am deeply grateful to the noble Lord, Lord Allen of Abbeydale, for giving us an opportunity to debate a matter of the utmost importance. Perhaps I could not really say "a matter of great urgency" since it is a matter which has been with us for very many years and is one about which we have done nothing for very many years. Since most of the things that I shall say in this short debate are things which I have said before on a number of occasions in your Lordships' House, I think that I can safely undertake to occupy rather less than my allotted 14 minutes. The noble Lord, Lord Allen of Abbeydale, having been a member of the Pearson Commission, has a very wide interest in and a very deep knowledge of all these different matters relating to the whole field of compensation for those suffering from personal injury. All that I would say on the general question is that we are often so fulsome in the praise that we give to the late Lord Pearson that it sometimes seems to me that that praise would ring a little more sincerely were we actually to implement the many very wise recommendations contained in the report.
I intend to focus my remarks on a long-standing injustice, one already referred to by the noble Lord: the injustice done to those who undoubtedly have suffered vaccine damage as a result of vaccination in the course of the nation's public health campaign. On that matter, it really is time that something was done. On the last occasion on which we debated this matter—and I think that the noble Lord has already referred to it; it was on 7th March 1984—the noble Lord, Lord Henderson of Brompton, made an admirable speech in which he pointed very clearly to the sources of the difficulties. He said that either the Act is faulty, in which case it needs amending, or the policies of those in charge who apply the Act are erroneous, in which case they need changing; or there is something badly wrong with the administrative structure which applies the Act, in which case that needs looking at as well. All those things remain to be looked at and I do not think that a great deal has been done since we last discussed the matter.
I should like very briefly to say why I consider it so very important that we set things right so far as 662 concerns the injustice done to those who have suffered vaccine damage. Of course, it is obvious that it is right to remedy any injustice and it is right so far as the people are concerned and their families are concerned that we should put things in order and see that justice is done. But I believe that it is particularly important not just for those people but for us all, for the whole community.
Techniques of immunisation and vaccination throughout very many years have revolutionised modern medicine and have probably changed the whole outlook so far as health is concerned for the whole of the world's population. It began many years ago, fundamentally, I think, with the work of Jenner and vaccination against smallpox. We all know the changes which have resulted since then. We do not have to go back very many years to a time when anybody who was not pockmarked was good-looking, so prevalent was the very savage, disabling and defacing disease of smallpox. It has now virtually disappeared from the whole world. There may be one or two cases in Pakistan. I am not sure. But it has virtually disappeared. Why?—as a result of vaccination; similarly, diphtheria, from which a great many children died. In the year before diphtheria immunisation became general, there were 70,000 cases of that very serious disease in Britain; within a year of the general introduction of immunisation that number was down to double figures, within another year it was down to single figures and, then briefly, it was down to no cases at all.
I do not need to go into the other diseases and what happened in relation to poliomyelitis, to measles (we hope) and to many other conditions, save to say that immunisation throughout the ages has always been accompanied by risks. Constantly there has been the dilemma of balancing the risk in the immunisation process against the risk of later contracting the particular disease and then suffering from it. From time to time the balance of advantage has changed, as has happened with vaccination against smallpox. We now know that vaccination against smallpox is a greater risk than the risk of actually contracting smallpox. Therefore, vaccination is no longer generally recommended and it is no longer compulsory.
Perhaps as a side issue I may mention to those who are interested in compulsion and other such matters that the percentage of people actually vaccinated during the days when vaccination against smallpox was compulsory was never so high as later when vaccination against smallpox became voluntary—which I think is an interesting point from which we can all learn. My point here is that inevitably there are risks and inevitably, as time goes on, we pioneer and develop safer vaccines of one kind or another so that the risk is gradually eliminated. We also pioneer and develop methods of dealing with the disease so that the vaccination or immunisation perhaps ceases to be necessary, and so on.
But that progress has got to go on in all these fields. If it does not go on, we are constantly faced with the danger that if immunisation and vaccination as a process once becomes a source of alarm to the general public, we then do something very dangerous indeed. We undermine public confidence in a public health measure which is of immense importance to us all. I 663 am sure that noble Lords do not need me to remind them that once you talk about the dangers of vaccination or immunisation or of a particular vaccine, the ordinary mother or father or family member does not distinguish greatly between this vaccine or the other vaccine. If they got the idea, as they did, and rightly, that there were certain dangers in the pertussis vaccine, then mothers tended to think that vaccines were dangerous. They then did not take their children at all to be immunised. Therefore, we gradually got on to the slippery slope in which the number of children immunised against various serious diseases was sometimes sinking to a dangerously low level.
Perhaps it is better that we should be debating this matter now rather than last March, because, if my recollection is correct, at that time we were in the midst of a major epidemic of whooping cough which had arisen partly or perhaps largely as a result of the decline in the numbers immunised against pertussis. It was then important to take crucial decisions to decide what to recommend to parents. And of course in the past it has always been the general medical view that whooping cough should be regarded as a very serious disease in babies but not very serious in children who are older. Therefore our general advice was that since there are dangers in the vaccine, while certainly all babies should have it, because they are then protected against a disease which could be very dangerous indeed, older children who have not contracted the disease should not necessarily have the vaccine. During that epidemic the then Secretary of State set an example and changed the rules marginally and applied vaccination against whooping cough to older children. Why, my Lords?—not for the protection of those children themselves, but to make sure that those children did not themselves contract whooping cough and then infect younger children when they went home.
It seems to me that it can always be argued that if a public health measure is carried out for the benefit of the individual and the risks are properly explained, that individual of course must take some of the responsibility if anything goes wrong, for he has entered into the thing knowingly. But if people are persuaded to be immunised, not for their own benefit but for the benefit of the community as a whole, I think the community clearly has a responsibility to make absolutely sure that if something goes wrong, there is proper and wholly adequate compensation. Your Lordships have already been told by the noble Lord, and by others on many occasions, that compensation for vaccine-damaged children has not been adequate and certainly cannot be regarded as proper compensation for what has been really very grievous damage.
So where do we go now? On the last occasion we debated this subject I said that the most urgent thing was to pioneer and develop a new and safer vaccine. I understand some progress has been made in that direction. Frankly, I doubt whether I would be justified in asking the noble and learned Lord who sits on the Woolsack, and who is the fount of all wisdom, to tell me about all new developments with regard to the pioneering of new vaccines. But since he is to reply 664 to the debate, I hope that the question that I am putting will register with him and he will see to it that the answers, sooner or later, are elucidated, because—
§ Lord Elwyn-Jones
I am grateful to the noble Lord for giving way, my Lords. Was not the noble and learned Lord once a Minister of Science?
§ The Lord Chancellor
The noble and learned Lord will have 20 minutes to answer this debate, and it is concerned with the inconsistencies in compensation. I was Minister of Science; I probably do know part of the answer, but I am not going to give it today.
My Lords, I do not know whether I should regard that as injury time so far as my 14 minutes are concerned; but let us proceed.
Another matter has occurred since our last debate. A commissioned inquiry was conducted into pertussis vaccination on behalf of the Department of Health and Social Security, and at their expense, by Professor Stewart of Glasgow. That inquiry report went to the department and I was told later by Ministers that on the whole they rejected its findings and they sought the advice of other advisory bodies which existed within the department. They had examined Professor Stewart's findings and they had not agreed with them. Professor Stewart was kind enough to let me see his findings and the principal one about which I was concerned was this. He considered, from his very detailed inquiry, that the risks of pertussis immunisation were now greater than the risks of pertussis. Therefore, his suggestion was that this matter should be looked at again in the light of that inquiry.
I should like to know whether the answer I received from the Ministers at that time was final, whether their minds remain open, or whether they are still looking at those findings. I should like to know also whether they are looking at those findings in relation to the possible development of a new vaccine, because if we do have a new vaccine which is safer, it is time we said so loud and clear. If we allow fear and suspicion of vaccines to exist generally throughout the population, one thing will follow as surely as night follows day: the incidence of immunisation in general will decline and it will become more and more difficult for doctors to maintain it.
There is one final aspect of this matter that I should like to mention. We are now in western society perhaps in the presence of a lot of possibly new diseases. They may not actually be new, they may be very old, but they are new to us and they include perhaps AIDS and Legionnaire's disease. These are not very new but relatively recently recognised. And as new diseases develop, so those in charge of research immediately undertake work to see what can be done to pioneer and develop a vaccine. As soon as that is done, one of the problems will be: is the vaccine safer than the disease? Very often they find that there are difficulties. What I am saying is that we shall be in this situation again in relation to other diseases as new vaccines come along, as I hope they will, so that all infective diseases in the end can be finally got rid of. But if we are in the position of developing new diseases with new vaccines, we must do all that we possibly can 665 to restore public faith in the vaccines we now have. One does not restore public faith in a vaccine if people who have had that vaccine on Government advice and on the whole for the benefit of public health suffer very grievously and then receive totally inadequate compensation and are treated unjustly. To allow parents, children, handicapped children and their friends and relations to continue to have a sense of grievance and injustice about vaccination really is very dangerous and could have implications for the future extending far beyond whooping cough itself.
§ 3.26 p.m.
§ Lord Campbell of Alloway
My Lords, I am sure that all noble Lords will be grateful to the noble Lord, Lord Allen of Abbeydale, for tabling this Motion, for his evident concern for humanity, and for the close reasoning with which he opened this short debate. Also, it is a privilege to follow the noble Lord, Lord Winstanley, who can draw on his medical expertise to put the whole question of immunisation in perspective: the balance of risk, the importance of not undermining public confidence, the dangers of the slippery slope, the distinction between personal benefit and benefit for the community, and the importance of fair compensation in order to maintain public confidence or even to restore it.
In the time available I wish to deal with only one aspect of the disparity of compensation; that is in regard to personal injury to children who are brain damaged by vaccine—the subject opened by the noble Lord, Lord Allen of Abbeydale. I am advised that I must take particular care not to refer to the merits of any particular case which has gone through the courts, or is in the process of adjudication or which will come up for adjudication in due course either here or before the Commission. This is in view of the interest which I am advised I have to declare in relation to my professional activities at the Bar in connection with such cases.
However, I am advised that it is open to me to deal with questions of principle. The first question—and I shall steer clear of any decided case—is that since the end of the war it has been known that the pertussis vaccine carries with it the intrinsic propensity to cause brain damage. Secondly, even now it is in an experimental stage, and since the last debate on this subject—as, indeed, was then prophesied by the noble Lord, Lord Winstanley—an improved and safer vaccine is reported to have been found.
Thirdly, the DHSS and the local health authorities encourage the use of such vaccines in the general interest of the public good, without informing parents of the nature of the risk, albeit statistically small, of that propensity to cause permanent brain damage. If brain damage ensues as the result of a first injection in the case of a normally healthy baby, there can be no cause of action against the doctor or the health authority in negligence. This could arise only if on subsequent injections there were contra-indications and the court were to hold that, by reason of such contra-indications, any further administration of the vaccine was negligent.
At common law, the measure of compensation is determined by the degree of disability occasioned by 666 such negligent administration of vaccine on the facts of each particular case. In a serious case of 80 per cent. disability with permanent brain damage, an award today—awards have been rising recently—would be of the order of £250,000 to £300,000. But it is always an uphill task to get home in a medical negligence case, for reasons which are all too obvious to your Lordships and require no further elaboration.
The obstacles in any proceedings against the DHSS are formidable, as your Lordships' Appellate Committee decided about 12 years ago that there could be no cause of action against a department of state unless its officials were acting outside the ambit of their statutory powers or, if acting within them, were not acting bona fide. So it was that in 1979 it was decided that vaccine-damaged children should be treated as a special category, and rightly so. The Act of 1979 recognised this special category, and, as the noble and earned Lord, Lord Elwyn-Jones, said on the last occasion—and it is so comforting to know that in due course he will speak in this debate—that Act was intended only as a temporary measure (without his information certainly I would not have realised that, and perhaps some others of your Lordships might not have known it, either) particularly as regards the fixed compensation of £10,000, the value of which—I am not very good at figures—is of the order of £4,000.
This regime under the Act of 1979 obtains today. It is open to the most serious criticism, apart from the inadequacy of the fixed compensation. Why? In order to qualify for compensation, there has to be an 80 per cent. disability—no less, or nothing. This is arbitrary, it is discriminatory, it is unjust, and it is totally unfair. There is the question of causation, which, if challenged by the Secretary of State, is remitted to a vaccine damage tribunal; and, as is shown by the reported decisions in the law reports, which are open to public inspection, these vaccine damage tribunals do not discharge their functions in a manner which can command the appropriate degree of public confidence.
The disparity between £10,000 and £300,000 for the same injury, on the assumption that causation is established, speaks for itself as a manifest injustice, especially when a person who suffers injuries and qualifies for compensation under the criminal injuries scheme will receive not exactly the limit but more or less near to the limit of civil compensation for the same disability, which would be of the order of £250,000 to £300,000. This point was made by the noble Lord, Lord Allen of Abbeydale, and it is a telling point.
So what should be done? Surely it is time that this whole scheme under the Act of 1979 was abandoned and that such claims for compensation on the basis of causation, irrespective of fault—and I pray in aid paragraph 1409 of the Pearson Report—were resolved by the courts in accordance with the ordinary principles of common law. In this regard, at all events, acknowledging that vaccine damage is still a special case—following paragraph 1398 of Pearson—there should be a statutory derogation from the ultra vires and bad faith principles of the common law, which inhibits proceedings against the DHSS.
Following paragraph 1409 of Pearson, where causation is established on the balance of probabilities in a civil court the department should be obliged to 667 pay true compensation according to the common law, as it is on the recommendation of the department that such vaccine is administered in the general public interest to its full knowledge of the individual risk involved, albeit statistically small. This is the point made not only in the reasoning in Pearson but with very, much more authority than I can command by the noble Lord, Lord Winstanley.
So it is for those reasons that I support everything that the noble Lord, Lord Allen of Abbeydale, has said, and I stand by what I have said as reported in Hansard in the previous debates on this subject. Of course, one understands all too well the constraints which must beset my noble and learned friend the Lord Chancellor, and the hope is that he will also understand why some of us persist, and are committed to persist, in what we believe to be necessary in the cause of seeking a fairer treatment of the situation. There are many who have been brain-damaged by injections given at a time when the vaccine was far less safe that it is today and when parents received no warning of such risks. These people, with the terrifying burden which they carry, must not be forgotten, and the award of £10,000 compensation, in the circumstances of the family bringing up a brain-damaged child who is now perhaps 20, is really ludicrous.
In conclusion, surely one day the Government will take this problem on board and do something constructive and fair to resolve it, so doing away with this arbitrary, discriminatory and wholly unsatisfactory statutory regime which beggars the concept of compensation. The hope is, as I happen to be a Conservative, that it will be a Conservative Government which will do something about it.
§ 3.40 p.m.
§ Lord Denning
My Lords, while it is very proper for your Lordships to consider vaccine damage, that is only one item—and I am afraid a small item—in the vast subject of compensation for personal injuries which is before the House today. There is no subject about which the judges, the lawyers and the insurance companies are more concerned. It represents 80 per cent. or more of the litigation—and far more cases are settled—quite apart from all the individuals, hundreds of thousands of them, who suffer personal injuries all the time.
The discussion today should be, and is, on the law relating to personal injuries. It is riddled with inconsis-tencies and injustices at the moment. That was why, in 1973, a Conservative Government appointed Lord Pearson and his most experienced and able colleagues to this Royal Commission. They sat for five years. They took evidence, not only in England but all over the world, on the big problems that arise for all of us, and after five years they produced a virtually unanimous report. There were 189 recommendations, and I think that on only nine was there any dissent—and they were minor ones. That was in 1978. It was a Labour Government which then received the report. It has been shelved. I once said—I said it in a little book—that it was scurvy treatment by an ungrateful Government or Governments of those great and able men who served on that Royal Commission and brought forth such a good report.
668 I cannot go into all the individual cases. My noble friend Lord Allen of Abbeydale has mentioned two or three, but there are many more. I would just emphasise his point about vaccine damage by saying that in paragraph 1413 the Royal Commission said:We recommend that the Government or the local authority concerned should be strictly liable in tort for severe damage suffered by anyone, adult or child, as a result of vaccination which has been recommended in the interests of the community".Surely that is right. If it is "recommended in the interests of the community" and damage occurs, the community should pay for it. That is one point of principle which is in the recommendations.
But apart from that, wider questions are involved. My noble friend Lord Allen mentioned the question of social security benefits. Just think, my Lords: when a man is injured in an accident at work, on the road or wherever it may be, of course he gets social security benefit. It may be industrial insurance benefit, unemployment benefit, sickness benefit and the like. That is a form of compensation for his accident. When he brings an action against the wrongdoer—it may be the other driver, his employer or whatever—he gets compensation for his loss of wages. That is all totted up by the judge, and he gets the full amount—but here is the anomaly. Although he gets full compensation, by a compromise introduced by Lord Monckton in about 1948, you do not take into account the whole of the benefit he has been getting, you take only half. So he gets an added bonus: he not only gets all his lost wages, he gets his social security benefits as well.
One of the first recommendations of Lord Pearson's Commission was on a matter of strategic policy. They said:One of our earliest strategic conclusions was that the duplication of compensation should be ended and that the relevant social security benefits should be fully offset against tort awards".So they say that benefits ought to be offset; that Lord Monckton's fifty-fifty should be put aside. What a simple amendment of the law that would be!—but nothing has been done about it. That is what they recommended. That is one point I would raise.
My next point concerns those people who suffer what is called a living death. We have had cases in the courts about it. Medical science has expanded infinitely in our time. We have had two cases in our courts, and I was involved in both of them. A lady doctor aged 35 went into a hospital for a minor gynaecological operation, and something went wrong with the anaesthetic. They did not administer it properly, or whatever it may have been. She had a cardiac arrest and could not breathe. Her heart stopped beating for 25 minutes. She was pulled round, but with what result? Her body can live for the other 37 years of her expected life, but her brain has gone completely—no feeling, no thought. By medical treatment she is kept there like a cabbage, or whatever, for the rest of her 37 years.
What should the compensation be? In that particular case she had no relatives and no dependants. She was given the full amount of all the cost of nursing and attendance—everything like that, as much as anyone could buy for the rest of her days. But in addition—here is the illogicality—she also received compensation for loss of the income which she would have earned if she had stayed alive and capable for her 669 other 35 years. So she got the loss of her income and also the cost of all those nursing expenses—a complete overlap.
The second case involved a little child of 21 months. The child was in hospital with whooping cough, or something quite trivial. Another cardiac arrest occurred. The little child can live infinitely as a thing, but with no mind. Medical science can keep it alive, but with no mind, feeling or the like. What is to be the compensation? Infinite compensation, of course, for all the cost of nursing and attendance; and the cost of the earnings which that child would have made over the rest of its life. What guesswork!
In the Court of Appeal we ventured to point that out. The case came to the House of Lords, and there was a unanimous judgment. I should like to read what the noble and learned Lord, Lord Scarman, himself said. He asked: Is the law sound? It is not sound. In the case of Lim v. Camden, which is reported in 1980 Appeal Cases (Lim being the name of the lady doctor), he said:The question arises whether the state of the law which gives rise to such complications is sound. Lord Denning in the Court of Appeal declared that a reappraisal of the law is needed".and here are the important words:I agree. But I part company with him in ways and means. The Master of the Rolls thinks it can be done by the judges, whereas I suggest to your Lordships that such a reappraisal calls for social, financial, economic and administrative decisions to be taken by the legislature".The noble and learned Lord asks for the perplexities to be solved by the legislature. There the noble and learned Lord, Lord Scarman, acknowledges that the law is unsound, and he acknowledges that there should be a reappraisal of it. But he says that it is not to be done by the judges; it is to be done by the legislature. But he calls for the reform of the law. That was in 1980. Here we are, with nothing done about the Royal Commission's report. I could go on, but as time is short I should like to mention only two more matters.
The living death cases (if I may put it that way) are a problem for everybody. But there is also the question of "no fault liability", which was considered by Lord Pearson's Commission. It arises most significantly in road traffic cases. In a court of law, in order to get compensation you have to prove negligence by somebody. Let us take the case of the little child who runs into the road and who is run down by a motor car. No witness sees the accident and the other little children do not see it or cannot know. The child or its parents bring an action for damages. There is no proof of negligence against the driver; no one saw him driving too fast. That is only one instance. One could take dozens of cases in our courts, where a person has been injured in a road accident but has not the evidence forthcoming to prove liability.
Lord Pearson's commission said that in such cases we should have no fault liability and that it should not be on the individual to prove negligence. The commission said that if people were injured in a road accident in that kind of way, there should be no fault liability. The commission went on to say quite a nice thing: that this could be easily paid for by a penny a gallon on petrol. That was the commission's recommendation. Nothing was done about it.
670 The other point that always interests me is when judges have to assess damages in any of the types of cases I have mentioned—such as that of the lady who lived for 37 years—they have to assess the damages as at this moment in time, not knowing whether the injured party will live for 37 years, for five years, or for five days. The judges have to estimate ahead. They are sure to be wrong. They cannot get it right. They will either give far too much or, maybe, too little. They have to estimate the future earnings of the individual concerned for 30 or 40 years ahead. They have to anticipate whether the individual will get better or will get worse 30 or 40 years ahead. That is an impossible task for the judges. They just do their best.
Lord Pearson's commission suggested that there should be periodic payments. One could say that so much is to be paid in the first three years and then the case should be reviewed. If the person is better, then the payment can be stopped—but if the individual is worse off, then he or she will get more. Also, it does not always do any good for individuals to receive huge lump sums; one does not know how they are going to spend that money, but that point has been gone into. Lord Pearson's commission said it would be infinitely better to have something in the nature of periodic payments. But the commission pointed out the snag—that the insurance companies would be dead against such an arrangement. They want to get rid of their liabilities and do not want them to continue into the future. But that is quite an intelligible point of view.
I have outstripped my time. I would only add that Lord Pearson's Royal Commission was well staffed and well considered, and the problems it examined then are just the same today. They are with us still. The social and other aspects involved remain just the same as they were at the time of the commission. The commission reported in 1978. In 1982 there was a chance, as my noble and learned friend the Lord Chancellor knows, with the Administration of Justice Bill, which contained some sections which cleared up two or three little points. But there was nothing in that Bill to tackle the great problems which Lord Pearson's commission examined and about which they made recommendations.
I would not suggest that there be another Royal Commission because we have had quite enough as it is. But I suggest that the Law Commission could be instructed to draft a Bill putting into effect the recommendations of the Pearson Commission. Would that not be a step forward? At all events, I thank my noble and learned friend—who was such a distinguished member of that commission—for bringing this subject before us today.
§ 3.54 p.m.
§ Viscount Hanworth
My Lords, in 1978 I read the report of Lord Pearson's Royal Commission on this subject and I prepared a speech. However, in the event I was unable to deliver it. Unfortunately I cannot trace my notes and, without sufficient time, I have been able only to glance at the report again.
I believe that no one who has looked into this subject can dispute that the law is most unfair. That is one of the points which the noble and learned Lord, Lord Denning, has just been making. In the industrial 671 field a worker can get compensation for injury even when he is to a great extent to blame. The injured passenger in a private car gets nothing unless the driver of the car can be proved to have been negligent. A consumer injured by a manufacturer's product has to prove that the manufacturer has been negligent. In most cases that is extremely difficult, to say the least.
In England much the same applies to negligence in medical and surgical treatment, where the authorities close ranks and simply deny necessary information to make a civil case. Not so in America, where a wrong diagnosis or treatment is so often classed as negligence. The result is that doctors' fees are loaded by perhaps 30 per cent. or so to cover insurance against possible damages—and such damages are very great indeed.
There is also another anomaly. Those with legal aid can sue but those in a slightly higher income bracket dare not do so, and the prohibition against champerty prevents a solicitor taking on a case free on the basis of some share in the damages if the action is successful. I am not so sure that in this limited field there is anything very wrong in a solicitor doing just that.
Having come to the conclusion that in many cases compensation is a legally authorised lottery, inevitably one thinks about no fault compensation. This means that when a consumer is injured by, for example, a manufacturer's product, the manufacturer has to pay compensation whether or not he is to blame. Superficially this seems a possible solution but it is not very sensible if applied universally to all categories of injury.
In the first place, the manufacturer has to take out an insurance against damages and this is reflected in the selling price of the goods. In effect therefore consumers would be indirectly paying for accident insurance. However, this is only insurance of limited scope because it does not cover more than a small proportion of accidents in the home. Most such accidents are not attributable directly to manufactured goods; for example, an accident with boiling water. Outside the home, a major cause of injury is car crashes, and sometimes no other car is involved. In that case, there is no possibility of suing for negligence. A further disadvantage of no fault compensation is the legal or investigative work involved in each claim.
If we do not accept some form of universal accident insurance which would be irrespective of legal liability, I believe that our existing law needs change. It should not be necessary to prove negligence on the part of a manufacturer; only that the product was potentially unsatisfactory from a safety point of view, having regard to what is normally acceptable.
I believe also that if we are to extend liability of this kind, it would be sensible and right to reduce the damages which can be awarded to claimants. I say this because it is no use being starry-eyed about the law and justice when manifestly it is for the injured just a lottery—to say nothing about the delays involved. All insurance policies place a limit on claims, and as I have explained, indirect insurance is involved.
Many countries abroad have gained experience with modified systems of compensation, and we should learn from their experience. Their experiences at the time the Royal Commission reported are given at 672 length in one volume, and they make very interesting reading. I am sure we are all agreed that the Commission did an absolutely first class job and their Report should be our bible in making much needed changes. But once again little or nothing has been done since they reported in 1978.
In the time available, I do not feel that I can go through the various different classes of injury and deal with them adequately. However, all this is in the recommendations of that report. I do not feel it useful to go through it all today. I have tried to emphasise that something ought to be done, and that the present situation is wholly unsatisfactory.
§ 4 p.m.
§ Baroness Faithfull
My Lords, I rise to support the noble Lord, Lord Allen of Abbeydale, who has made a compassionate, realistic plea on behalf of those who have suffered permanent disability, damage or death as a result of vaccination. Perhaps I may also support the noble and learned Lord, Lord Denning, who called for the implementation of the recommendations of the Royal Commission on Civil Liability and Compensation for Personal Injury—the Pearson Report—which, as I understand it, called for a no-fault scheme to compensate children damaged by vaccination.
If I may, I shall concentrate on the position with regard to children. I shall take first the financial position. If 100 per cent. disability is proved—and very often it is not proved—an attendance allowance is made to the family of £28 per week up to the age of 16 for the severely disabled person. After the age of 16 a disabled non-contributory invalidity pension of £20 per week is paid, together with £60 a week supplementary benefit. The lump sum of £10,000 which in real terms is now probably £4,000 to £6,000, would bring in an income of about £1,250 a year when invested. That means that a mother would get £1,446 a year.
We find that the parents of children damaged in this way do not seek to have their children cared for by other people. There is a strange feeling of guilt, which is sad, but which is there, and this feeling of guilt is answered by caring for the children themselves, which means that the mother cannot go out to work.
I am on the Council of Dr. Barnardo's. As may be well known to your Lordships' House, the image of Barnardo's has changed. Destitute and homeless children are the minority; the majority of the children cared for by Barnardo's are physically and mentally impaired and handicapped.
Perhaps we may just look at the cost of caring for a child in a home of 18 severely handicapped children. This particular home is in Salford where, as I say, there are 18 children. The cost is £13,325 per year. In Liverpool we have a group of bungalows, three children to each bungalow, and the cost is £16,193 a year, £300 a week. Another home for 15 children in the Midlands costs £16,000 a year. We know that residential accommodation is far more expensive than caring for children in their own homes. I give these figures only to show the inconsistency and the complete disparity in terms of what a mother receives when she is looking after her handicapped child full time as compared with the case of a child in either voluntary or public care.
673 Over the age of 16 a young person can get a disabled non-contributory pension of £20 a week, and £60 supplementary, benefit. But there are problems. What happens to such children when the parents die? In this country there are many organisations which care for adults, but the amount of money spent on caring for them is out of all proportion to what they receive from both the state and the interest on the compensation sum. Likewise, some children, regrettably so, are cared for in hospitals. I need hardly tell your Lordships what is the cost of keeping in hospital a child who is mentally handicapped and severely damaged by vaccine.
I wish to take up the point made by the noble Lord, Lord Allen of Abbeydale, about the responsibility of several Government departments. I wish also to make the point that very often, in considering expenditure, one looks only at one area. In fact, to the community and to the state these children are a vast expense throughout their lives, whether they are in statutory or in voluntary care. If we were to look at the overall figure from all the departments, we should be ashamed of what we pay a family to care for such children.
I also wish to refer to the position of the parents. While motoring to the House on Tuesday I heard on Radio 4 a phone-in programme, from 9.00 to 9.30, concerning the care of children; and what did I hear the two doctors say? They enjoined all parents to have their children vaccinated. The programme made it quite clear that it was in the interests of the children—and the noble Lord, Lord Winstanley, mentioned the interests of the small brothers and sisters of these children—that they should be vaccinated. When, after a child has been vaccinated according to the diktat and advice of doctors and the state, a parent finds that the amount of money allotted to look after the child is far less than what he would receive if placed in public care or in the care of a voluntary organisation, that parent is, naturally, upset. In any case, it seems to me that the terrible sorrow of a healthy child suffering severe brain damage after being vaccinated is bad enough, and as a society we have the duty, the right, and perhaps the privilege, to see that those parents are well compensated, not only when the child is young, but also when it is adult.
§ 4.10 p.m.
§ Lord Airedale
My Lords, I think that the debate so far has shown that the great trouble that we are now facing is that the law on this topic to date has been a piecemeal approach and we need something very much more comprehensive. Surely what we need in a sophisticated society is an extension of national insurance to provide fair compensation for everybody who suffers physical injury through no fault of their own, however it is caused; perhaps leaving aside for the present the question of what to do about people who bring disaster upon themselves.
Surely a society which contributes enthusiastically every week to football pools for the benefit of a few lucky winners ought to be much more enthusiastic about a fund to compensate unlucky losers. Of course, one can do this without eliminating the law of tort because where the injury is found to be the fault of some other person then the fund should be entitled to 674 recover damages. The noble Lord, Lord Allen, referred to the Criminal Injuries Compensation Board. I suppose a man arriving from Mars might say that it is curious that we do not have a Civil Injuries Compensation Board because although the injury may be sustained in more dramatic circumstances in the one case than in the other, the long-term effect upon the victim is likely to be very much the same in either case.
When it comes to strict liability for defective products, which the noble Lord, Lord Allen, reminded us has been kicking around at the Council of Ministers since 1976, I do not think that the reason is far to seek. Surely the fact is, and one has to face it, that strict liability without proof of fault is not justice or fairness. It may be rough justice to say that a vast corporation should compensate one individual irrespective of the question of fault because the amount involved may not even be shown in the annual accounts, but it is rough justice all the same. Where do you stop? Let us take the fairly typical case of a carpenter who makes a step ladder which collapses and injures someone, not because of a carpentry fault but because a metal hinge suffers metal fatigue which could not be easily spotted because it had been painted over.
Nobody would say that it is right that the carpenter should pay compensation. Someone presumably has to find the manufacturer of the hinge. First, the carpenter has to try to remember who the ironmonger was who supplied him with the hinge, and then the supplier has to try to remember which firm in Birmingham supplied him. The chances of bringing a case like that home to the manufacturer of the defective product are very remote indeed.
So even if we ever do get strict liability for defective products, the number of loopholes and the people who are going to fall through the net and not be successfully sued will be enormous. I do not think that strict liability for defective products, even if we ever get it, is going to make a serious impact in solving this most difficult problem.
§ 4.14 p.m.
§ Baroness Lane-Fox
My Lords, may I crave the forgiveness of the House, and in particular the noble Lord, Lord Allen of Abbeydale, for not being in my place at the beginning of the debate. My absence was due to a long standing duty to take the chair at a meeting and then I was caught in a traffic jam in Regent Street. I apologise for any apparent discourtesy which of course would be inexcusable.
In this debate, so rightly initiated by the noble Lord, Lord Allen, I doubt whether many other speakers have followed the not very popular line that I propose to take. Your Lordships may recall in the two debates in December 1982 and March 1984 I stated my belief that if the claims by particular categories of disability for higher pensions and allowances were pressed it would be a retrograde step in the progress of the campaign for a national disability allowance. I still hold that belief.
The campaign to get a fairer system of allowance for severely disabled people—an allowance based on the extent of handicap and not on the cause of disablement—was started by the Disablement Income Group (DIG for short) about 20 years ago. Today 675 there can be no organisation working to help disabled people which does not support that campaign. There are, too, numbers of distinguished and learned people with whom this theory has found favour. No such allowance has been made to date, but important background events have occurred. It is most encouraging to find that the Office of Population and Censuses has a comprehensive two-year survey in operation which is expected to be finished by the end of next year, or soon after. This information will follow up the findings of the Amelia Harris report of about 15 years ago. Having had the privilege of seeing the inquiry form used in the survey, I am most impressed by its construction and I sincerely believe that it will help to extract that measurement of the extent of handicap from both physical and social causes without which it is totally impossible to create a scale for any such allowance.
Alas, the survey must take two years but having waited for so long for any Government to undertake it, everything possible should now be done to help it to achieve maximum results; that is, to reveal the full story of these people's difficulties, some of whom find it very hard to explain their own situation. I am more hopeful than ever before in the whole duration of the campaign that the picture that will be revealed by the survey will be the most important tier in the showcase we have laboured to build. For this reason it is imperative that, in the meantime, no move is made to jeopardise its future. Today there are very wide differences between what is paid to those extensively disabled, as other noble Lords have described, through illness or condition, or from private accidents such as in the home, compared with those who were industrially disabled or the victims of road and other accidents.
Nobody can pretend that any amount of ingenuity can do much to retrieve the enormous opportunities that are offered by life and that can be lost through a disastrous calamity. However, cash has the power to provide helpers, homes and hope; and for lay well-wishers wanting to help and provide something along the way it is the only way to try to compensate. If preference is given to one type of disability over another one creates yet another less than logical class society.
There have been many disabled people with the good fortune to be eligible for high awards to start them off on very useful careers. Others made the most of whatever came their way, like the late stage and television actor Michael Flanders. He told me that after being felled by a severe attack of polio at the end of the war it was his war gratuity that made it possible for him to go to Oxford, where he met up with Donald Swann, and to compose an unforgettable stage image that turned him into a high taxpayer. He could, he said, so easily have been someone depending on social security.
That gratuity was a sort of life raft. Many of us, for instance, who were clobbered by polio at the age of 12 or thereabouts had no such life raft or grant to help us back to life and to help us show our paces. Some of us had parents prepared to make huge sacrifices and who did not necessarily feel guilty in any way, may I explain to my noble friend Lady Faithfull? They made 676 huge sacrifices in caring for us, unpaid. But the less lucky ones among us ended up in residential establishments for life, at great expense to the nation.
Where there is reference to vaccine-damage victims of course our hearts are torn. But those of us who have suffered these foul diseases which can be prevented realise what good fortune so many hundreds of thousands of children have had to be saved from our fate or, worse still, from being killed by such diseases. They have been saved by vaccination.
I am told that the rate of vaccination in the United Kingdom is falling and is already alarmingly low for polio. The threat of an epidemic is there. How could anyone increase that threat. Of course they could do so by sending out frightening accounts of the sad cases of vaccine damage. I know that that would not be the wish of anyone taking part in this debate, but it is important that that should not act as a deterrent to this terribly important preventive measure of vaccination. I beg of everyone not to put the clock back now.
At this late stage let me admit that in an oblique way I have an interest in this matter—an interest which is almost an embarrassment. Certainly it is not my wish to obstruct any payment of funds to disabled people and their keepers. It is probably only those of us from among that number who understand the real struggle of financial survival for severely disabled people. I say that even in the knowledge of eligibility to invalidity allowance, attendance allowance, mobility allowance and other small additions and with the realisation that mostly these have been new and merciful payments over the past 15 years.
I have with me the memory of the introduction of the attendance allowance as the first measure placed on the statute book by the 1970 Conservative Government, with Sir Keith Joseph as Secretary of State for Social Services, and not forgetting the work which was contributed towards it by the noble Lord, Lord Ennals, in the earlier stages. That moment was wonderful and is marked indelibly on my memory. It seemed that for the first time someone outside the family was giving us a hand and somehow we were being included at last.
I may have appeared to have waxed unbearably sentimental, but I wanted to make it very much known how worth while it is to fix fair allowances that will not favour one variety of case more than another. We should urge that the very most be made of the survey and expect to achieve a code of practice without fear or favour, despite the knowledge that within restricted resources we cannot hope for vast expenditure now. Nevertheless, we should be jolly sure of making a weighty and important claim for the earliest attention to prevent unfairness in the future and to help others who are now left out. I believe that this is a case where a bird in the hand is not worth two in the bush, for those birds in the bush find it hard to perch on the branch without the prospects and hope of future help. With luck, the survey will alert the Government to their plight. Thank you, my Lords.
§ 4.25 p.m.
§ Lord Edmund-Davies
My Lords, I seek to make an extremely short contribution to this most important debate which has in large measure, and understandably, been confined to the extremely important 677 topic of damages for vaccine injury. The topic that I have in mind is of far wider importance. In intervening I naturally apologise to your Lordships' House for not having put down my name to speak, but I had every reason to think that I should be away from London today. Having made that apology, I can assure your Lordships that my contribution will be in inverse ratio in brevity to its importance.
It is a topic which was touched upon by the noble and learned Lord, Lord Denning. It is the topic of the quantification of damages—damages in cases where there has been the committal of a civil wrong (a tort) and proceedings are instituted in respect of such damage, and also in cases of strict liability, which is a topic that the Royal Commission deliberated upon for a long time and on which it made very clear recommendations.
The problem is this. In the civil courts a judge has to deal with a case of personal injury. Liability is established, or fault may not have to be established because it is a case of strict liability. The problem that arises is, how much? Under our common law the judge has to peer into the future. He can have positive evidence as to the financial loss to date. He can have detailed evidence about the nature of the injuries—the pain and suffering and matters of that kind—but the plaintiff has riot recovered. His injuries may last for a very long time. How long, and how intense and grievous are the injuries?
Sometimes the problem is virtually insoluble. It involves peering into the future, and the glass can be very dark indeed. I confess that at times I have found myself on the bench confronted by that task, saying to myself, "Really, what are you doing more than making an intelligent guess?" The guess—estimation is perhaps a better word, and more acceptable to the judiciary—has to be made at the time the case is being disposed of.
An example which comes easily and readily to my mind of the sort of problem is this. There is, we are told, a threat of impending, supervening epilepsy. The evidence of the expert medical witnesses may vary a great deal, some saying that there is a probability, others that there is a remote possibility, and with many shades of opinion in between those two extremes. The judge has to come down in favour of one side or the other. I repeat that the problem can be one involving acute anxiety, leaving the judge at the end of the day, having made his award, far from satisfied that what he has done is likely to be borne out by the events as they happen in the future.
That is very bad. The Royal Commission thought so, and it made some recommendations involving the making of an interim award in relation to those matters which had been established but enabling the plaintiff to come back in the future if events occurred which his legal and medical advisers thought merited a return to the court for further consideration. That is not a new matter in this country. The Criminal Injuries Compensation Board, whose practice I have seen as an observer at its sittings, does precisely what the Pearson Report recommended. It has the capacity to make an interim award. To take again the case of suspected supervening epilepsy, a nominal award can 678 be made in relation to that as it presents itself at the time of the hearing but leaving it open to the injured plaintiff, injured as a result of a criminal assault, to come back to the court in the future if the glass has darkened and his injury, his epilepsy, has supervened.
Many arguments were advanced, chiefly from the insurance side, against making interim awards in the civil courts. The state has taken on the liability in respect of criminal injuries and has enabled interim awards to be made. This is a matter, I respectfully suggest, that calls for earnest consideration. It is a signal example of inconsistency in the existing provisions. I warmly support the speech of the noble Lord, Lord Allen of Abbeydale.
§ 4.32 p.m.
§ Lord Elwyn-Jones
My Lords, this has been an important and moving debate. We have touched upon the sufferings and handicaps of those in our society who have been afflicted mostly through no fault of their own. We have looked at and seen the variety of misfortune that can arise. We have to face conflict as to how the matter should be dealt with. The message that has emerged most strongly to my mind is that what our society and our country really lacks is a coherent policy towards disabled people.
§ Lord Elwyn-Jones
My Lords, I shall gladly do so. What the country and our society really lacks is a coherent policy towards disabled people. I had thought that the noble and learned Lord would perhaps be familiar with those words because they were his very own, stated at the end of a debate on this kind of subject a year or two ago. I hope that I shall not be deemed impertinent if I ask the noble and learned Lord what steps are being taken to achieve a coherent policy towards disabled people. There are those throughout our society who have been awaiting it a long time. I do not blame any one particular Administration for having given an inadequate answer.
The debate was opened by the noble Lord, Lord Allen of Abbeydale, who once again showed his compassion, added to, in his case, by his chairmanship of MENCAP. It is a reaction with which I am also, if I may say so, familiar, as president of the Mental Health Foundation. Injury to the mind and to the brain caused by vaccine damage has been one of its most tragic features. When we discussed that particular issue during the debate in December 1982, I think it was, initiated by the noble Lord, Lord Campbell of Alloway, a speech was made by the noble Baroness, Lady Faithfull, who has always been greatly involved in this field, especially where children are concerned. The debate arose at a time when there was need to inspire confidence about vaccination. The noble Baroness quoted from a study produced by the Association of Parents of Vaccine Damaged Children, suggesting three ways in which an improvement could be made: first, by promoting vaccines that are safe and can be shown to be safe (that was the theme on which the noble Lord, Lord Winstanley, spoke, and I apologise to him for my brief intervention); secondly, 679 by educating parents about vaccination; and, thirdly, by accepting responsibility in cases where damage results from vaccination.
On the first matter, I wonder whether the noble and learned Lord has any comfort, or reassuring information, for us as to progress on the safety of vaccines. I do not expect, of course, a scientific discourse on the matter. I detected from the speech of the noble Lord, Lord Winstanley, that he was rather more reassured about the state of the matter today than he was in December 1982. On the second desirability—that is, educating parents about vaccination—I must pay tribute to the fact that the Government embarked on a substantial propaganda campaign in this field during which people in surgeries and other places were made aware of the importance of vaccination and its value for the protection of their children. I hope that the publicity effort still continues.
The third matter is the acceptance of responsibility in cases where damage results from vaccination. The scheme introduced by the Labour Government in 1978 took place during a recurring phase of, I think it was, a whooping cough epidemic. It was at the end of 1978. We were running into serious economic troubles because the recession had hit us as it had hit other countries. Our resources were limited. I am not wanting to make a political point, though this was introduced in one or two places by the noble Lord, Lord Campbell of Alloway. At any rate, the Labour Government were the first Government to move in this field, introducing the 1978–1979 scheme, inadequate as it clearly is.
It was introduced in the face of the immediate epidemic as a first aid method of helping families immediately and directly affected. Whatever criticism may be made of the scheme, at the very least the 750 families, which each received £10,000 grant, gained some benefit from what was done at that time. I agree entirely, however, with what has been stated by more than one speaker. The 1978–1979 package was no more than a first aid measure. It is essential now that it should be reviewed.
I am dismayed to hear what has apparently been said—that nothing is immediately planned, or has been done, to improve that situation and, indeed, that it has deteriorated, as the noble Lord, Lord Campbell of Alloway, indicated, because what was £10,000 then has a purchasing value of £4,000 now. Apart from the criticisms that he has made about the scheme, it was arbitrary and it was sudden and quick. But it was the best that we could do in the circumstances. I cannot say more in defence of it than that. At least we did attempt something.
We are anxious to know from the noble and learned Lord the Lord Chancellor what changes, if any, are to be made in this field; in the field of liability, answerability and the quantum of damages that should follow from these disasters. On the question of whether the machinery for determining the issue should be the courts or tribunals, I confess that my own inclination has been to prefer tribunals. I was dismayed to hear of the fierce language of criticism that has apparently been addressed by one branch of the judiciary to the work of tribunals. After all, the tribunal that we have in mind will be presided over by 680 a legally qualified chairman, supported by two medical experts of consultant status. With great respect to the judiciary, I should have been inclined to think that that was about as good a tribunal as any for dealing with this medico-legal matter. However, be that as it may.
We greatly hope that changes will emerge from the Government. One cannot put personal responsibility in this field on to the individual Minister on the Woolsack, because his own personal compassion is well known. Therefore, we clearly ask: what improvements are now contemplated and how soon will they be brought forward to deal with this tragic situation?
The other matter which has been touched upon is the issue of product liability; that is to say, the liability to pay compensation or damages for injury caused by a defective product, at whatever stage of its production. At present, as the cases have shown, there is an anomaly under the Sale of Goods Act 1979 whereby the seller of a product is strictly liable only to the buyer. Curiously enough, most European Community countries have the same anomaly but some—for example, France—have recognised this, and strict liability applies nationally. In fact 21 countries which agreed the European Convention on Product Liability have come to the conclusion that strict liability should be applied to manufacturers.
Therefore, it is disappointing to find that that does not appear to have been, or does not appear as yet to be, the approach of the Government. In 1980 the then Minister for Consumer Affairs—I think it was Mrs. Sally Oppenheim—announced that the Government supported the concept of strict liability as laid down in the European Economic Community products liability directive, but that that directive did not strike a balance between the interests of consumers and manufacturers. She said that the Government would accept the strict liability in the directive, provided that there was a "state of the art" defence for manufacturers. The manufacturer provided with that defence would be able to claim that he was not responsible for the defect in the product if the fault concerned was not detectable and could not have been foreseen or prevented. That is, in my submission, an inadequate response to the needs of the situation.
If the Government refuse to support the products liability directive or if that directive continues to be bogged down, as it has been, for years, should we not bring in our own legislation to correct the anomaly in our present law and change it to help the victims particularly of defective drugs and other products from which our citizens and children may suffer harm? If I may say so, that is what the Pearson Committee recommended a long time ago. It proposed that the law should be changed to enable compensation to be more easily obtained by the victims of defective products.
§ Lord Avebury
My Lords, I should like to ask the noble and learned Lord a question. From listening to his speech I am wondering whether there is any analogy here with the position under the Health and Safety at Work Act. As I understand it, under Section 4 a manufacturer has to take all steps that are reasonably practicable to ensure that his product is 681 safe not only for the workers who are producing it but also for third parties who may indirectly come into contact with it. If we could apply the same responsibility as regards products, would that be one answer to the problem?
§ Lord Elwyn-Jones
My Lords, that is an ingenious and—in so far as I can say anything immediately while I am thinking on my feet—helpful suggestion. However, it certainly does not touch directly the question about which I was speaking; namely, product liability, though it is worth noting that it has been done in that important field, and it could be extended elsewhere.
I am looking at the clock. My time has come—not finally, I trust—to finish my speech. As I have said, the debate has been compassionate, but I hope that it need not be tragic.
§ 4.45 p.m.
§ The Lord Chancellor
My Lords, I fear that I have been given an impossible task. The noble Lord, Lord Allen of Abbeydale, has raised the whole question of compensation—and I limit myself to that matter by which I understand him to mean financial compensation—for various misfortunes which can overtake a man, a woman or a child during the course of his mortal life. It would take me more than the 15 minutes or so that I have available to answer even one of the speeches which has been delivered, including that of the noble and learned Lord who has just preceded me.
I think that I can give one answer to one of the questions which was raised by my noble and learned friend Lord Edmund-Davies from the Cross-Benches. It is my intention to introduce provisional damages. That requires the commencement date for Section 6 of the Administration of Justice Act 1982 and rules of court following it. I had the papers before me this morning. I would have signed them had I not had to go to the Abbey service and had I not noticed in them that there was a division between the judges on a relatively important point. However, I should be surprised if provisional damages are not the law during this year. I hope that they will be so by July, but that is not a promise.
I should like to begin by trying to make my own speech about this subject. I start from a slightly different angle from that of any other speaker. The kinds of ways in which you can make financial provision for the various misfortunes which can happen to a human being in life are almost infinite, and their personal circumstances are equally various.
We have at present—and I am aware that I am grossly over-simplifying, but what else can I do?—two broad systems of paying compensation. The first system is based on need and requirement, and it is a vast jungle of various allowances, mainly under the aegis of the DHSS. Those allowances are infinitely various and infinitely complicated.
The second system is what I shall loosely call "tort damages", though of course the Criminal Injuries Compensation Board uses them, too. Those damages are based on totally different methods of computation 682 in which the origin or cause of the damage, the relationship of the parties to the incident which caused it, and the extent to which the victim has played his own part in bringing about the misfortune, enter into the computations, some of which—but only some of which—were adumbrated by the noble and learned Lord, Lord Denning, when he entered upon the extraordinarily difficult problem of whether you ought to pay damages to a person who is quite unaware, owing to the extreme state of his paraplegia or whatever, that he is suffering anything at all, and whether you ought to include in those damages the money which he would have earned had he remained in perfect health. This is the sort of question which arises on the second scheme.
There is of course this further difference between the two systems. The second scheme broadly yields higher damages but with less certainty of getting anything than the former. Obviously a question arises as to what the relations ought to be between those two systems. In fact that was one of the questions raised by the noble Lord, Lord Allen of Abbeydale, in relation to a specific recommendation of the Pearson Commission.
The position is now that under the Law Reform (Personal Injuries) Act of 1948 half social security benefits are set off against tort damages. That was introduced then, and I challenged it at the time. It was defended by Sir Hartley Shawcross, as he then was, on the basis that it was a typically British compromise. There then followed the Law Commission, which said that social security benefits ought not to be taken into account at all, on the analogy of pensions, and the Pearson Report, which said that they ought to be set off completely because the whole theory of damage is that you cannot have double counting in favour of the plaintiff.
It happens that my view is the last view; identical, that is, with the Pearson Commission, and contrary to both the Law Commission and the existing status quo. I cannot give a date when, or even a promise that, that view will be given effect to by my colleagues or by Parliament, but that is my stand upon that.
When it comes to this problem I have given up all hope of removing inconsistencies. I shall in a few moments explain why some of the suggestions which have been made during the course of the debate would not so much diminish them as increase them. Take, for instance, the problem of vaccine damage, to which I shall revert in a different connection in a moment. If you judge by way of need a brain-damaged person who has had polio, or has suffered from some other accident—nobody's fault because a million accidents take place in the home—which creates an equal degree of disability, he needs just as much, or just as little, as somebody who has suffered brain damage as a result of a polio or whooping cough injection.
Yet it is now suggested that in place of the admittedly illogical scheme of the Vaccine Damage Payments Act of 1979 we should go over to tort damages entirely based on strict liability, whether it be the state, which I think most speakers referred to, the manufacturer of the vaccine or somebody else who should meet the damages. If this suggestion were adopted, the contrast between persons suffering the same damage, and subject to the same requirements, 683 would be enhanced and not diminished. I have, however, given up all hope of consistency.
The noble and learned Lord reminded me that I had used the epithet of "coherence". I have not quite given that up. I think a coherent policy is probably too ambitious an aim at the present time, but I suggest that we ought to apply a little coherent thought to what is inherently an extremely difficult problem. Some of the difficulties were adumbrated by the noble Lord, Lord Allen of Abbeydale, himself and by the noble Lord, Lord Airedale, when they were talking about product liability.
There are two questions which hold up an international agreement on this point. There is already a convention in existence between the 21 member states of the Council of Europe; there is also a series of meetings, of which I think the next will be later this month, in the organs of the Community on this very subject. But the two related questions which have held up decision are, first, what is called development risks, or sometimes state of the art defence, and secondly, statutory limits to a claim.
The Germans favour statutory limits and have them, I think, as part of their domestic law. That creates a great deal of injustice and great inconsistency. There is also state of the art defence. I am not going to argue the case at length, I am only going to say that there is, as the noble Lord, Lord Airedale, pointed out in relation to an ingenious case which he raised himself, an inherent injustice about asking people to pay for what they could not possibly have foreseen.
Of course, if you keep a dangerous animal on your premises you are subject to strict liability, but that is because keeping a dangerous animal on your premises, or doing something which can be called analogous to it, is a risk which you ought to have known about. Everybody of course knows that all new products may carry a risk which one does not foresee, but there is something inherently wrong about asking people to pay tort damages for something that nobody could have foreseen at the time.
What is more, it is unlikely to do humanity any good. Taking the case of pharmaceuticals, for instance, a great deal more good has been done by developing pharmaceuticals—although I am no advocate of some of the companies—than has harm. If they know that they are going to be liable for the unforeseeable they can neither insure—because you cannot insure against the unforeseeable, as any underwriter will tell you—nor will they be prepared to lay out money on research and development. That would not reduce the inconsistencies and would not, I think, advance humanity or its cause.
What is true is that we are seeking, through the Economic Community, to develop a directive which would take account of the two disputed items. Of course a great number of international conventions have applied statutory limits of one sort or another, so it must not be thought that I am inherently against them, but it is the case, as was pointed out by the noble and learned Lord, Lord Fraser of Tullybelton, some years ago, that the European Convention of 21 nations got it wrong, and probably the Germans have originated a device which would do more harm than good in the opinion of a great number of people. It is, 684 however, possible that in the next 14 days or so something more hopeful may happen.
I now turn back—staring, I am afraid, at the clock—to the question of vaccine damage. I must reiterate what I said earlier in my speech: that to do what was passionately argued for by the noble Lord from the Liberal Benches, and by my noble friend Lord Campbell of Alloway, would create a greater inconsistency than it would remove. I do not say that it is wrong for that reason. I do say, however, that I challenge at least two of the assumptions upon which the speeches were made, and particularly that of the noble Lord, Lord Winstanley. However, I may now be doing him an injustice and, if so, I apologise in advance.
I spoke about this, it will be remembered, in December 1982. I was then anecdotal, which I am not going to be today, because I had had rather a poignant personal experience, which I then related, concerning the polio injection which was then under discussion.
Whether it is whooping cough or polio, the same two questions arise. The first is that it is said that we encourage the vaccination for the sake of society knowingly exposing the child to risk of brain damage of a permanent kind. I challenge that. If that was what we were doing we should be guilty, as I said in December 1982, of a great moral wrong. We have no right to sacrifice an innocent child incapable of deciding for itself for the sake of other children, but that is not what is being done. What is being done is what I did in the incident that I related. I ascertained from the medical authorities that, in relation to the polio injection, the chances of an unvaccinated child suffering permanent damage would be very much greater than if it were vaccinated. In other words, vaccination was done for the sake of the child.
In relation to whooping cough, which I spoke about in December 1982, I evaluated the chances then—subject to any improvements which have been made since, I fancy they are not out of scale now—that the chances of permanent damage or death from not being vaccinated were then 1:6,000 and if vaccinated in a course of three injections the chances of damage were 1:100,000. In other words, we encourage the parents of a child to have it vaccinated because the chances of damage are very much less and we do it in the interests of the child itself. To say for that reason that the child who belongs to the class of 1:6,000 and is unvaccinated owing to the imprudence of his parents should be given a lower and less satisfactory compensation than the child who had prudent parents and had it vaccinated but subjected it to a risk of only 1:100,000 would be creating an anomaly and an injustice which no one could seriously justify.
I do not think this is an easy problem. I must end on that note without answering many of the fundamental questions. The truth is that we shall have to live both with the tort system and with the system of state compensation allowances, such as mobility and disability allowances, for a long time to come. There will be numerous inconsistencies long after I have passed from the scene.
Throughout this debate I have been painfully conscious of the shades of my old and admired senior, Colin Pearson, whom I invited into my room in 1973 685 and who modestly, humbly and with great public spirit undertook the burden of this vast task which I persuaded him to accept and which yielded an admirable report—with much of which I do not agree—of over 1,000 pages. Were he present here today, I frankly concede that he would have to say that not everything he would have liked has been done. I do not think that, in the light of wisdom of another, and, I hope, better world, his shade would be quite so reproachful as that sentence might have implied.
The problem is much more complex than has been acknowledged. I should have told him that, in the field for which we are wholly responsible—that is, the first system of monetary compensation—we have improved the relevant part of the scheme to a large extent over the last six years. I make no party point for or against this present Administration. In real terms, not in cash terms, the benefits under the first system have increased by 35 per cent., against which one has to set off the increased numbers of persons in the population. I shall not do that sum. There is a real advance amounting to not less than £150 million in the annual expenditure in real terms on the first system.
We have not abolished inconsistency. We have never had a coherent policy. My recollection of the legal complexities goes back to the Workmen's Compensation Act 1925. We are improving a little in coherent thought about what is a difficult, complex and an agonising subject.
§ Lord Campbell of Alloway
My Lords, before my noble and learned friend the Lord Chancellor sits down, may I ask him a short question on a point over which we are at issue? Does he agree that paragraph 1398 of the Pearson Report supports the assertion for which I contend—that the inoculations are given (I quote) "to protect the community"? That is not my idea, but an assertion which has a respectable basis.
§ The Lord Chancellor
My Lords, I should never have thought that it was not respectable even if my noble friend had been the only person to advance it, but I said that others, almost every other speaker except myself, had made that assumption. It is the assumption I challenge, not its respectability.
§ Lord Allen of Abbeydale
My Lords, this is not the occasion for another speech, but there are one or two points I should like to make. I begin by saying that I was particularly glad that the noble Lord, Lord Winstanley, referred to the helpful speech of the noble Lord, Lord Henderson of Brompton, on an earlier occasion, because I know that the noble Lord, Lord Henderson, particularly regrets not being able to contribute today. I was also very pleased that my noble and learned friends Lord Denning and Lord Edmund-Davies referred to some of the other important recommendations of the Pearson Commission; for example, in relation to assessment of damages, periodic payments and road traffic, all of which we could debate for a long time. I am pleased that the noble and learned Lord, Lord Edmund-Davies, scored a hit, as I understand it.
686 I am grateful to the noble Baroness, Lady Lane-Fox, for apologising for her late arrival. She had already told me that it was inevitable, but I was anxious that she should have an opportunity to put her point of view, which she did so eloquently, and which I am sure we were all pleased to hear and have on the record.
Having listened to the noble and learned Lord the Lord Chancellor, I should like to say how grateful I am that he thought it appropriate himself to answer this debate. I began by saying that I had no ambition to remove all inconsistencies; it was a question of moving the boundary lines. The underlining theme of the Pearson Report was the fact that tort and social security had grown up without any regard to one another, and how they could be fitted together and how extraordinarily difficult it was to do that.
The noble and learned Lord referred to the Council of Europe Convention on Product Liability, but as that rules out the state of the art defence I have always understood that on our view so far we would not be able to ratify that convention. Although I listened carefully, I do not think he said anything about the question we raised on sticking at an unindexed £10,000. Perhaps he will think about that in the light of the points which have been made.
All that remains for me to say is that the one thing the debate has established beyond peradventure is that this is difficult territory. I am very grateful for the views which have been expressed. I think the problems are very formidable and speak for themselves. I am afraid that in sitting down I cannot give an undertaking that I will never again return to these issues. I beg leave to withdraw my Motion for Papers.
Motion for Papers, by leave, withdrawn.