HL Deb 01 December 1987 vol 490 cc929-31

2.55 p.m.

Lord Denning

My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

The Question was as follows:

To ask Her Majesty's Government whether they will take steps to encourage reappraisal of the law on compensation for irreversible brain damage.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, the Government are always ready to consider any suggestion for reappraisal or reform which may be put forward.

Lord Denning

My Lords, I thank my noble and learned friend for that most disappointing Answer. But is he aware that, in awarding a sum of over £1 million in damages, Mr. Justice Hirst stressed the crying need for a review of that branch of the law which judges frequently urge but which only Parliament can undertake? Perhaps I may add one word—

Noble Lords


Lord Denning

—one question. I shall get it right in the end. Will my noble and learned friend consider implementing the report of the Pearson Royal Commission in favour of periodic payments in place of a large lump sum, or at least refer the matter to the Civil Service Review?

The Lord Chancellor

My Lords, I am sorry that my noble and learned friend is disappointed with our very open approach to the Question. I am aware of what was said by Mr. Justice Hirst and I am also aware of the difficulties which exist in that area of the law. The reform which was introduced by way of a provisional award of damages is a step in the direction that the noble and learned Lord wishes us to take. The Pearson Report has been considered. The subject is large; I am not sure whether the noble and learned Lord wishes me to go into the detail of the report this afternoon.

Viscount Hanworth

My Lords, does the noble and learned Lord agree that as things stand the law on negligence as applied to this sort of case is simply a lottery? There are many people who either cannot afford to sue or who suffer equally and who get no recompense at all. Would he think it fair, and some amelioration, that some proportion of the huge damages awarded should be put towards helping those who suffer equally and who cannot prove negligence?

The Lord Chancellor

My Lords, I cannot agree that the present situation is properly equated to a lottery; it is generally based on fault, which is a matter of principle. It is possible to think of other bases for compensation. However, every basis has its own difficulties.

Lord Winstanley

My Lords, irrespective of the validity of the Question asked by the noble and learned Lord, Lord Denning, is it not a fact that irreversible brain damage is so high a price to pay for compensation of whatever magnitude that it is inconceivable that anyone would willingly seek enrichment via that route? Does it not follow that the most urgent matter is not a reduction of damages but to limit the number of cases occurring? Can we not make a start by expediting the introduction of the new wholly safe acellular whooping cough vaccine so as to eliminate cases of irreversible brain damage arising from that source? As the noble and learned Lord will know, a case concerning such damage is currently before the courts.

The Lord Chancellor

My Lords, it is clear that all noble Lords agree that if irreversible brain damage can be prevented, that is better than any system for awarding compensation following such damage.

Lord Kilmarnock

My Lords, will the noble and learned Lord agree that the Government's recent White Paper on primary care raises that question by recommending a further extension of immunisation and vaccination, which is bound to give rise to some errors along the way? Does that not give good grounds for seriously reconsidering the whole question of no-fault compensation?

The Lord Chancellor

My Lords, the question of no-fault compensation has been the subject of a number of considerations. It is presently the subject of consideration by the Department of Health and Social Security in conjunction with the British Medical Association. I understand that the association has requested discussions with the department about a possible pilot scheme. However, I am not certain that it would be right to link that matter with the White Paper on primary health care.