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Lord Carlisle of Bucklow: On the last occasion I rose to support the Minister on an amendment moved by the noble and learned Lord, Lord Archer. On this occasion, I make a brief intervention in support of the principle of the amendment moved by the noble Lord, Lord McIntosh.
The provision for serious injuries as working in practice is frankly unfair. I agree with the noble Lord entirely in that approach. As a result of the decision of the judiciary of your Lordships' House which held that the tariff was unlawful, we had to look again at all those awards which had been decided under the then tariff. I believe that the noble Lord, Lord Macaulay, will agree with me that one of the most common comments of ourselves and our colleagues has been that that was shown to be very unfair when one is dealing with someone who has multiple injuries.
Of course, if you have a broken nose and a scar on the nose, it might be said that that is one injury which can be approached in that way. If you have a broken jaw and you have lost a tooth, again those are related injuries. But let us say that you have an accident which causes you to be blind in one eye. That does not mean that there is no effect if you have also broken your leg or badly broken your ankle. When you have injuries which are totally distinct, it seemed to those of us on the board who looked at those cases to be unfair to limit the award for the second injury to 10 per cent. As the noble Lord, Lord McIntosh, demonstrated in the
Between now and Report I ask the Minister to look again at the tariff proposal in relation to multiple injuries. She may not go along with the idea that they should be removed entirely from the tariff but I believe that the percentages are unfair and deserve to be looked at again.
While I am on my feet, perhaps I may say to my noble and learned friend Lord Rodger that I was not suggesting necessarily that £100,000 could ever compensate a person for the loss of their eyes or for becoming paraplegic. The point that I was trying to make was that through the courts, society has accepted that there is a generally agreed figure for the pain and suffering element. The Government should not move too widely from that figure without at least reflecting on the consequences which that might have on the settlement of cases in the courts. I was not wishing to be hard on the paraplegic. I merely said that if other expenses were allowed on top, we should look again at the figure given for general damages.
Baroness Blatch: I am afraid that this amendmentlike a number of others we shall consider latereffectively rules itself out of court straightaway by talking in terms of assessment on the basis of common law damages. We have made it clearindeed, it is a central tenet of our tariff approachthat we want to break right away from the present system based on individual assessment. We are looking for a system which is simple, quick and transparent, and one under which costs are more predictable and controllable. Our enhanced tariff scheme provides just such a system. Against that rationale, there can really be no question of reverting to the common law method of assessment for any category of case.
Before addressing the point at issue on the amendment, perhaps the Committee will bear with me while I say a few words about the general principle involved. It has been argued by manyand it will no doubt continue to be arguedthat certain categories of case are not susceptible to a tariff-based approach but require assessment on an individual basis. We do not accept that view. I remind the Committee that the tariff was constructed extremely carefully on the basis of 20,000 awards made by the board. That extensive sampling exercise demonstrated clearly that it was quite feasible to group injuries into bands of comparable severityincluding complex or sensitive casesand that it was possible to assign a typical monetary value to that grouping (the median value). The exercise enabled us to devise a range of awards for all cases, including the difficult ones, depending on their relative seriousness.
As regards the figures given by the noble Lord, Lord McIntosh, he seemed to me to be comparing a common law award with a tariff and ignoring any loss of earnings payments or any after-care payments. Therefore, it was not an absolutely true comparison with what could be received by an applicant at the end of the day. I see that the noble Lord wishes to respond. I give way.
Lord McIntosh of Haringey: I am grateful to the Minister for giving way. I was comparing the damage element of the common law with the tariff; in other words, I was excluding extra payments, loss of earnings and so on from both sides of the equation. So I was comparing like with like.
Great care has been taken in the tariff to provide injury descriptions which can be readily applied. We therefore see no justification for departing from the straightforward tariff approach for particular classes of injury or type of case. That tariff approach is open, readily understood and provides certainty and consistency in the level of awards.
Victims will know where they stand. We think that that is most important. A return to subjective assessmentfor that is what the amendment and a number of those which follow amount toof the pain and suffering attributable to the injury would mean that cases would take longer to deal with, that there may be more appeals about quantum and that the costs of the scheme would be far less certain. What the scheme provides is a tariff payment plus an objective assessment of financial loss attributable to the injury. That is intended to deliver a fair, generous and consistent outcome across the whole range of cases.
As I have said before, and I shall no doubt have to say again, we are no longer aiming to provide finely-judged compensation on the same basis as hitherto. That is no longer appropriate, or affordable, for a scheme funded by the taxpayer which has to deal with over 70,000 claims a year. Many victims and their families think that their case is special and deserving of particular consideration. But we believe that our enhanced tariff scheme will provide for all types of case, without reintroducing delays.
Having made those more general remarks, I should now like to say something about the point at issue here. The draft scheme presently provides for serious multiple injuries to be assessed according to the formula of 100 per cent. for the first injury, 10 per cent. of the award for the second andwhere appropriate5 per cent. for the third.
The sampling exercise to which I referred a moment or two ago showed that in cases of multiple injury most of the award was made for the most serious injury, with very little added on for additional, lesser injuries. That approach is also recommended in the Judicial Studies Board guide to damages for personal injury. The tariff adopts the same approach, and the formula that we have adopted for assessing multiple injuries closely reflects board practice. We think that that is the most sensible way of dealing with such injuries, and can see no defensible basis for going down any other road.
In some circumstances I can see that our formula might be considered to leave the victim under compensated to some degree; for example, where he had lost both an arm and a leg and received only 10 per cent. of the award for the loss of the arm. But such cases are extremely rare. As I have sought to make clear at a number of points during consideration of the Bill, the
My noble friend posed the question of whether or not I would consider, think about, or continue to read what has been said during the course of the debate between now and the next stage of the Bill's proceedings. I can give my noble friend that assurance unequivocally. Indeed, we shall go on thinking about all such matters until the Bill passes its final stages in this Chamber.
Lord McIntosh of Haringey: The Minister's response has two parts. First, because we are discussing the first amendment which refers to a reversal to common law procedures, she makes the defence that she has made previously of the statistical procedure on which the tariff is based. As a statistician I am not opposed to the general principle on which the analysis was made. It was right to take a sample of casesa sample of 20,000 is a large number of casesand I was right to take the median rather than any other form of mean. However, I would still argue that the analysis of this proper sampling procedure has been inadequate.
If the analysis of each of the items in the tariff had taken account of the age of the victim, the sex of the victim, his or her occupation and the dominance and extent of multiple injuries, there are various ways in which it could have been made more sophisticated. We would have then obtained a more complex tariffthere is nothing wrong in itself with a complex tariffand a tariff which more closely approached reality. At the moment we have a tariff which, through its ignorance and rejection of further discrimination by age, sex, occupation and dominance, is extremely crude. The Minister defends this, as she has throughout the Committee proceedings, on the grounds of transparency and speed. I do not reject that analysis; I agree that speed and transparency are important. However, a complex tariff can also be made transparent and can also be made accessible to the layman and it can be applied more speedily. It is better than a crude tariff. The same is true as regards multiple injuries.
Secondly, I come to the specific point which the Minister makes. She says that there is a relatively small number of cases of multiple injuries. Indeed I said that in my opening speech. There were only 641 in the first year of the tariff scheme. The Minister says that most of the people who receive these injuries receive a large amount for the first injury and a smaller amount for the second injury. However, that is an even stronger reason why the amounts that exist for the second and third injuries should not be reduced to 10 per cent. and 5 per cent. respectively, because it confirms that the cost of a more equitable recognition of the pain and suffering
I would not have wished to put down an amendment which reverted to common law damages for multiple injuries if I could have avoided it. If I could think of a way of providing for multiple injuries within the tariff which was fairer than the 10 and 5 per cent. system, I would still prefer to opt for that. However, I do not have the resources to do that; the Minister and the Home Office do. They must acknowledge, as they have been urged to do by the noble Lord, Lord Carlisle, that the case for providing better treatment for those who have suffered multiple injuries is a sound one. Surely something could be done, if not by giving 100 per cent. awards for all injuries, then at least by providing something better than 10 per cent. or 5 per cent. In that way we can avoid what all of us want to avoid, which is a return to the common law scheme. It is because our amendment represents a return to the common law scheme and because I want to pursue the matter constructively with the Minister before we reach a later stage that I shall withdraw the amendment. I beg leave to withdraw the amendment.
Baroness Seear: Before the noble Lord does that, I should say that I wish to support his suggestion. Having obtained a sample of 20,000, which is a good start for an analysis, it should be possible at this stage to do a special analysis of the particular group of people who are affected in this way, as the noble Lord, Lord McIntosh, has suggested. The noble Lord probably has all the data and such an analysis could be carried out. It would be illuminating to see such an analysis. I do not know whether the noble Lord, Lord McIntosh, agrees with me but I believe that from a technical point of view it could be done and it would be useful.
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