Leading Article: The disabled should not have to rely on vagaries of the law courts

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The Independent Culture
THE DECISION by the High Court to award record damages of pounds 1.3m to Gail Taylor is, of course, entirely justified. The sum recognises, as Judge Anthony Nicholl said, the fact that Mrs Taylor has had to devote her life to the care of her disabled son John, born after a failed sterilisation operation at Oswestry and District Hospital. However, and right as this outcome was, the case still raises some disturbing questions.

First, we are reminded once again of the unconscionably long time it takes for cases like this to be settled. Mrs Taylor's saga began in 1992, so some seven years - a sizeable proportion of John's childhood - has already passed. Another case this week - of a teenager who became quadraplegic after a car accident and received pounds 3.95m - also took seven years.

The large sums of money involved can easily distract us from the fact that not a penny of it is available during some of the crucial and most difficult years of a child's development. This is unacceptable, though such lengthy delays are an inevitable consequence of health authorities not wishing to admit liability, and the difficulty of weighing evidence in complicated, emotionally overwrought circumstances. Clinical reputations are at risk.

Even if compensation claims can be settled quickly, the law still provides an uncertain remedy as the awards vary enormously. But even if this were to be made consistent, we should still be left with the greatest offence against natural justice: why should a child who has been born or developed a disability simply as a result of nature, and not the result of negligence or accident, be given such a radically different lifestyle and care? Their needs, after all, and those of their carers, are identical.

This is not a new question. In 1978 the Pearson Commission said the system of tort was too costly, too cumbersome, too prone to delay and too capricious to be defensible. That commission proposed that, as with the criminal compensation system now widely accepted, there should be a "no-fault" system. This rational suggestion would separate the issue of financial support for disability from the establishment of fault and negligence (which remains necessary to highlight scandals such as the case of the Bristol heart surgeons).

It should be possible to provide for all disabled people on the basis of the nature of their disability rather than on the chance circumstances that placed them in that position. A politically difficult move, certainly, but one that would mark a courageous, compassionate and civilised society.

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