Meeting of the Parliament 18 December 2018
Although the number of people who are directly affected by the bill is small, the bill is nonetheless crucial. We should always remember whose interests are at the very heart of the bill: the people who have suffered an accident at work, a birth that did not go to plan, or negligence or lack of care by an individual or organisation, which mean that they live with the tragedy of no longer being who they were meant to be or leading the life that they had worked for or, indeed, had dreamed of.
The minister has helpfully put the legislation into the context of a wider programme of reform that abides by the principles of clarity, transparency and fairness. I will return later to the importance of principles.
In the time that I have, I will focus principally on periodical payment orders, because the committee heard substantial evidence about the risks that victims of personal injury bear with compensation, particularly if it is received in a lump sum. No matter how good the legislation, calculating an award for damages, particularly for future loss, is not an exact science and never will be, so the risk of undercompensation can be minimised but never removed.
We have to remember that damages are not surplus funds; they are meant to replace loss of earnings and meet future care costs. Professor Wass advised the committee about inflation-busting care costs, the unpredictability of life expectancy and the costs of specialised accommodation. All of those point to the advantages of a periodical payment order.
The bill will give the courts for the first time the power to impose, without the consent of either party, PPOs. Crucially, courts will only be able to do that where the continuity of payments is secure. However, in his evidence, Patrick McGuire from Thompsons Solicitors expressed concern about the potential for a victim to be forced to accept a PPO and how disempowering that could be for someone who has already suffered a catastrophic injury and endured a lengthy court process.
The committee recommended that the Government lodge amendments to give more weight to the views of the injured person and suggested a statutory presumption. In her transparent and clear response to the committee, the minister said that she did not want to undermine the ability of courts to make the best decision and that courts would inevitably weigh up the views of both pursuer and defender. Far be it from me to be disrespectful to our learned friends of the judiciary, but let us also not be deferential, because we know that little in life is inevitable.
That brings me back to principles: if we cannot have a presumption—and I am not convinced that we cannot—we should at least put some robust principles in the legislation relating to the views and voice of the injured person. There is precedent for that in the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003, among other legislation. Under such provisions, the court or tribunal, after weighing up all the evidence and hearing all the views, could take decisions to infringe people’s liberty, although it would do so under a clear obligation to listen to the views of those impacted and to demonstrate a wide range of principles.
Let us not add to the feelings of powerlessness and of not being listened to that are all too frequent in the lives of those with significant disabilities, illness or injury. The minister went some way towards recognising that when she acknowledged that PPOs would not be for everyone, given that some people would need a clean break from those who had been responsible for their injury. I am glad that she gave a commitment in Parliament to continue to consider that issue.
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