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Lord Skelmersdale: I said that my noble friend Lord Hunt of Wirral was an expert in this area and he has most certainly just proved that. However, it occurs to me that the words,


he seeks to insert seem eminently sensible. I hope that the Minister will agree.

Lord Warner: It is with some trepidation that I rise to respond to the amendment, in particular at this time of night. I am sorry I went anywhere near the Oxford English Dictionary and I promise to do better in future.

The definition of "accident" may not cover all the incidents which give rise to injuries. The amendments could have the effect of limiting the types of injury which would attract NHS cost recovery. This could limit the effectiveness of the scheme. The health and safety inspectors might draw attention to

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shortcomings in particular health and safety issues and no action would be taken. So there was a foreseeable set of circumstances which led to an injury which was not totally unforeseen.

I understand the case law referred to by the noble Lord, but the issues are not quite as straightforward as he suggests. However, I have what I hope he will take as a constructive suggestion, not only on this amendment but on a number of his other amendments. These are very detailed and complex issues in some cases—as the noble Lord said, there is case law on some of them which needs to be explored—and I wonder whether he will accept an invitation to a meeting. I can certainly bring along my lawyers, complete with their reference documents, and departmental officials, and perhaps we can thrash out some of the detailed issues outside the Committee, well before Report stage. I would then write to him confirming the outcome and he would perhaps achieve more satisfaction in that way. The offer is made in a constructive spirit.

Lord Hunt of Wirral: I was not saying the issue was straightforward; I was saying the opposite. I readily accept the Minister's generous offer. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 411 not moved.]

Lord Skelmersdale moved Amendment No. 412:


    Page 65, line 4, at end insert "or an ex gratia payment"

The noble Lord said: The Minister has referred to cases where compensation is not paid on the basis of liability. None the less, although it is fairly rare, ex gratia payments are made on occasion where liability is not accepted. Why have the Government excluded them from the scheme—or is the word "voluntarily" on line 7 of the page supposed to include ex gratia payments? I beg to move.

Lord Warner: The Government agree entirely that ex gratia payments should not attract NHS costs where there is no liability or alleged liability for the injury caused, but there is no need for this to be specified on the face of the Bill as the amendment would do.

Clause 146(3) defines a compensation payment as one made by someone who is, or is alleged to be, liable for the injury caused. Dare I say it again? I have checked the definition of "ex gratia" in the dictionary. It states:


    "given as a favour or gratuitously where no legal obligation exists".

If a person who is not liable or alleged to be liable for the injury makes a payment gratuitously, that payment cannot meet the definition of a compensation payment and therefore cannot attract NHS charges under the scheme. That is the explanation.

Lord Skelmersdale: It seems I have produced a gratuitous amendment. I am grateful for the Minister's

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explanation that it is not necessary to make express provision for ex gratia payments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 413 not moved.]

Lord Skelmersdale moved Amendment No. 414:


    Page 65, line 12, leave out subsection (6).

The noble Lord said: This is unashamedly a probing amendment. Subsection (6) of the clause qualifies subsection (5) in a rather confusing manner—a matter to which my noble friend Lord Hunt has just referred. Subsection (5) states, in effect, that diseases—asbestosis was cited in another place—do not count. That is absolutely crystal clear.

However, subsection (6) goes on to say, "Hang on a minute. Diseases do count in particular circumstances". If an injury for which compensation is due results subsequently in a disease, it does count. An example might be a head injury where the physical damage is repaired but the patient goes on to get meningitis, which can continue for years and years. That would count as continuing treatment for the head injury and would be subject to continuing NHS charges up to the cap, which, we are told, is likely to be 33,000. We await one of these dreaded orders to tell us how much it will actually be under the new scheme.

Surely to goodness it is not beyond the wit of the draftsmen to ally these two subsections to make the Bill easier to read for the likes of my noble friend and his colleagues in and on the fringes of the industry. At the very least, the Minister should consider Amendment No. 415, which would move up the words "attributable to the injury", precised—always a good thing in legislation, pace my noble friend Lord Renton—from further down the page. I beg to move.

12.45 a.m.

Lord Warner: As the noble Lord said, subsections (5) and (6) were inserted into the Bill by the Government in another place in response to concerns expressed by the Opposition as the need to make it explicit on the face of the Bill that compensation payments in respect of diseases, particularly industrial diseases, should not be included in the NHS costs recovery scheme.

These two subsections make it clear that what you might call freestanding diseases are not included in the scheme, but that diseases directly attributable to an injury are. So, for example, a compensation payment made in respect of an industrial disease such as asbestosis would not attract NHS charges under this scheme. However, a compensation payment made to someone who suffers tetanus as a result of a badly broken leg would attract charges, not just for the treatment of the broken leg but also for the treatment of the tetanus. That is the distinction that we are making here.

This seemed a fair and responsible distinction to make. The disease would not have occurred if the injury had not happened, so it is reasonable that the compensator should be held responsible for the cost of treating it.

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Amendment No. 414 would, in effect, remove this distinction so that no disease, not even those directly resulting from an injury, could be included within the scope of the scheme. This seems manifestly unfair and defeats the underpinning principle of the scheme.

I was not entirely clear what Amendment No. 415 was intended to achieve. Subsection (6) is already worded so as to make it clear that only disease consequent upon an injury is included, so it does not need to be specifically reiterated, as set out in the amendment. It seems to me that these amendments are entirely unnecessary.

Lord Skelmersdale: I cannot have explained myself very well, can I? I am suggesting that the Minister should go back to the draftsmen and reconsider subsections (5) and (6) because I should have thought they could be encapsulated into a single subsection. That was the sole and total purpose of my amendment. They clearly were not meant to be included in the Bill. I am sure that, on reflection, the noble Lord will appreciate it.

Again, there is no point in having an argument at this time of night. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 415 not moved.]

Lord Skelmersdale moved Amendment No. 416:


    Page 65, line 19, after second "treatment" insert "carried out within 12 months of the injury for which compensation has been paid"

The noble Lord said: Treatment of injuries, perhaps multiple fractures, or certainly a broken back, can go on for years, sometimes for the rest of a patient's life. Under this clause, as the Minister has so far explained it to us, treatment charges would continue, subject only to the cap.

Let us consider an insured horse rider who has a bad fall, suffers a broken back and becomes a paraplegic. After a period, he or she will go home and, almost invariably, suffer pressure sores, for example. I wonder if the noble Lord has ever seen a bad pressure sore, where the flesh is so eaten away that it has to be cut out, sometimes right down to the bone, over significantly wide areas of the body. Treatment for these would indeed be consequent on injury. It really is not right that an insurance company should be liable for a person's lifetime. Therefore, we have put down this amendment to restrict to 12 months the length of time for which payment is due. I beg to move.

Lord Warner: I do not feel strong enough to trade gruesome experiences at this time of night with the noble Lord.

Clause 149(5)(a) allows for the regulations setting the amounts to be paid under the scheme to include setting a maximum sum payable. That reflects existing powers in the Road Traffic (NHS Charges) Act 1999. The Government have used those powers to set a cap on costs under the road traffic scheme, currently

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standing at 33,000. That represents roughly 60 days' in-patient treatment using the current daily tariff for such payments under the scheme.

The Government intend to make the same arrangements under the expanded scheme, so that compensators will always know the maximum amount they might have to pay in any particular case. In the vast majority of cases, the liability will be much lower than the cap, because the injured person will not be in hospital for very long, or indeed may not be hospitalised at all.

Noble Lords will appreciate from this that the amendment would, in the more serious cases requiring long-term hospitalisation, make liability much greater not only than is currently the case but also than is currently the Government's intention. That may not be the noble Lord's intention, but it would be the effect of the amendment. We are trying to give certainty to compensators under the scheme.


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