Insurance Industry: Whiplash

Lord Walton of Detchant Excerpts

Tuesday 1st March 2016 Lords Chamber

[Lord Faulks]

There is no question of the Government surrendering to the insurance industry, as the noble Lord puts it. The insurers already announced that they will reduce the premiums to insurance companies by £50. We will watch insurance companies very carefully to see whether they translate their promises into action. Of course, as all noble Lords will know, insurance is a highly competitive world. All of us will have been irritated by the invitations to compare the market. Ultimately, the market should prevail.

[Lord Walton of Detchant (CB)]

My Lords, the whiplash phenomenon is thought to occur usually when a vehicle is struck heavily from behind, with the result that the passenger or driver in the vehicle that is hit has a sharp flexion of the neck followed by a sharp hyperextension. If it happens that the individual in question already has disc degeneration in the neck, there is no doubt at all that this may on occasions result in actual damage to the spinal cord with significant physical results. However, in the great majority of so-called whiplash cases, no organic abnormality can be detected. Indeed, there is considerable evidence that some of the claims for whiplash injuries are spurious. Having said that, is it not time yet again for the Government and the medical profession experts in this field to come together to see if they can promulgate some objective means of assessing the significance of these claims?

Social Action, Responsibility and Heroism Bill

Lord Walton of Detchant Excerpts

Tuesday 18th November 2014 Lords Chamber

[Lord Beecham]

My Lords, I begin by congratulating the noble Lord, Lord Hunt, on his recent appointment, or on its announcement, as an honorary bencher of an inn of court—I am not quite sure which one. He is to be complimented on that award, whichever one it is. Having said that, I cannot extend that degree of praise to the noble Lord’s amendment. I respectfully adopt much of what the noble Lord, Lord Pannick, has said in that regard.

The amendments seem to elevate insurance companies to the pantheon of heroes—and there may be a degree of heroism involved in that. Alternatively, it characterises them as pillars of social action and responsibility. That is not a view generally taken of insurance companies, for pretty good reasons. We now have a SARAH Bill; the noble Lord seems to want a RIP Bill—a “reduce insurance premiums Bill”. While many of us would want to see insurance premiums being reduced, there may be better ways of achieving that, one of which might be to look at the profits that the insurance companies make.

In any event, as the noble Lord, Lord Pannick, has already demonstrated, there are a number of queries about the provision. One point that he may not have made is that it is open to the NHS when it offers treatment to recover that from the other driver or his insurers. I am not sure what the Bill adds to that provision. While I entirely agree with the noble Lord, Lord Hunt, that it is entirely necessary to deal with the abuses of the present system, this amendment will achieve very little in that respect. The criticisms made by the noble Lord, Lord Pannick, seem to me overwhelmingly persuasive. In particular, the amendments do not lend any substance to an already thin Bill, and I agree with the noble Lord that they are basically out of scope.

I congratulate the noble Lord, Lord Hunt, on his ingenuity in trying to achieve the objectives that he sets out—and he is, of course, entitled to achieve those objectives—but surely this is not the Bill in which to do that. I hope that, when he has heard what the Minister has to say, he will not press the amendment either today or at a later stage, because we will certainly not support it from these Benches.

[Lord Walton of Detchant (CB)]

My Lords, I had no intention of speaking on this matter when I came to listen to the debate this afternoon but, as a neurologist—a doctor concerned with damage to the nervous system—I have over the years seen a considerable number of patients who were referred to me for an opinion either by a firm of solicitors or by an insurance company. They sought evidence as to whether there was a case to be made out suggesting that the so-called syndrome resulting from whiplash—the sudden flexing and extension of head and neck following a car accident—represented a genuine disability.

I have great sympathy with what the noble Lord, Lord Hunt, had to say as there is clear evidence in some cases that a whiplash has caused significant damage to the spinal cord or to the ligaments of the neck. This evidence can be identified by a number of medical methods. However, there is also clear evidence that a very large number of individuals referred with that type of injury are not suffering from a significant disability. As the noble Lord said, the “crash for cash” issue has arisen in a considerable number of cases over the last year or two, where it is perfectly clear that the symptoms are feigned and are not generally physically realistic. These attempts to obtain compensation are scams. I am persuaded by what my noble friend Lord Pannick and the noble Lord, Lord Beecham, have said. Frankly, I do not believe that this significant issue is properly dealt with by the Bill. Therefore, despite my sympathy with what the noble Lord, Lord Hunt, said, I feel that I cannot support the amendment.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I am extremely grateful to my noble friend Lord Hunt for bringing these amendments before the Committee and for his explanation of some of the problems that have beset our legal system and our society more generally. They are problems of which the Government are extremely aware and on which they have taken, and are taking, various steps to try to improve the situation. For example, the compensation culture, such as it is, was certainly fed by the cost incentives identified by Sir Rupert Jackson in his report. The reforms have made the costs of litigation much more controlled and your Lordships approved Part 2 of the LASPO Bill, which has resulted in a much more moderate personal injury claims litigation scene.

Noble Lords will be well aware of the dishonesty that sometimes besets personal injury claims. The Government are bringing forward provisions in the Criminal Justice and Courts Bill whereby, if a claimant is fundamentally dishonest, even if some element of the claim is genuine, he or she will not be able to recover any damages at all. We are also acutely aware of the problems with claims management, referral fees and the like. I am glad to say that claims management firms are reducing in number very considerably as they find this a less profitable field in which to plough their furrow. They are now much better regulated and fines of a considerable order are imposed on them if they act in a way which contravenes the law, so all these measures are going in the right direction.

Furthermore, the Government are setting up a regime to deal with whiplash claims. The noble Lord, Lord Walton, identified the difficulty of diagnosis in whiplash cases, which I think is well acknowledged in the medical profession. Although some people undoubtedly genuinely suffer the consequences of whiplash injuries, these injuries are not easily detectable objectively through scans or the like. Thus there is the temptation for claimants to bring claims, often egged on by third parties. It is often easier for insurance companies to pay out sums of money, even though they know that these claims may well be false, because the cost of fighting them is prohibitive.

All of this is a most unattractive landscape. My noble friend Lord Hunt is quite right to bring all those issues to the attention of the Committee. Before I move on to the amendments I should also say that it was as a result of my noble friend’s contribution to the Compensation Act 2006—to which he referred—regarding the provision on apologies not being an admission of liability that has helpfully altered the conduct of some litigation. Indeed, I can declare an interest, having relied on that section in one case.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Walton of Detchant Excerpts

Wednesday 14th March 2012 Lords Chamber

[Lord Walton of Detchant]

My Lords, I support the amendments tabled by my noble friend Lord Alton. I do so as a doctor. I was brought up in a mining village in Durham County where as a youth I saw some of the ravages of industrial injury and the effects of pneumoconiosis on those who worked in the mines. Later, when I moved to industrial Tyneside, I had considerable acquaintance with industrial injuries of all kinds and industrial diseases caused by a variety of different agents. At an earlier stage of this Bill, I commented that I was asked not infrequently to make reports on people who had suffered neurological damage as a result of these agents. The noble Lord, Lord Beecham, responded by saying that when instructing me to give such reports he had been grateful for their nature and extent and also for the modest fees. Had I known that he took that view the fees might have not been quite so modest.

There is no doubt, as the noble Lord, Lord Thomas, has said, that industrial injuries of all kinds are prevalent in our society. Is there anything special about mesothelioma? There is indeed. It is a disease caused by exposure to asbestos. The cause is known. The clinical course is known. In this condition, the result of particles lodging in the lungs means that the pleura or membrane which covers the lungs becomes progressively thickened, causing compression of the lungs and respiratory failure. Unlike many other diseases, such as pneumoconiosis, this disease is inevitably fatal. It is a very special condition. It deserves special legal attention and for that reason I strongly support these amendments which I believe should be accepted by your Lordships’ House.

[Baroness Butler-Sloss]

My Lords, I apologise for not being present at the beginning of this debate. My name is on the letter and I want to underline my support for it. As a judge, I was involved with a number of these extremely sad cases, particularly at the Court of Appeal. The letter has been very helpful in setting out what is needed. I apologise to the noble Lords, Lord Alton and Lord Avebury, for not having heard most of what they said, but I have a shrewd idea that it was said extremely well.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Walton of Detchant Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord Howarth of Newport]

My Lords, as everyone who has spoken has said, it would self-evidently be a false economy and prejudicial to justice if the Government were not willing to spend the money that they genuinely need to spend in ensuring that the expert evidence required is available to the courts. I ask my noble friend Lord Beecham, who moved the amendment, and the Minister—if, as he surely must, he agrees with the thrust of the amendment at least—what their views are on the appropriate methodology under the amendment. Does my noble friend consider that there should be some sort of standing body independent of the Ministry of Justice that would have the task of keeping this issue under continuous review and to report from time to time? I would have thought that it would be a continuing necessity for the Lord Chancellor to have the benefit of such advice so that he can be sure that the taxpayer is not being asked to spend more than is genuinely necessary under this head, but equally to be sure that sufficient resources are being provided. How does my noble friend or the Minister envisage that this function should be carried out? Perhaps they could say something about the practicalities of ensuring that that takes place, as that would be helpful.

[Lord Walton of Detchant]

My Lords, I had not intended to speak on this issue, except to give brief support to the amendment that has been tabled by the noble Lord, Lord Beecham, which he expounded so very clearly. My own personal experience of giving expert witness in neurological cases over many years, not for a long time but many years ago, has led me to give warm support to this proposal. It is fair to say that we heard comments a moment ago about expert witnesses in the field of paediatric neurology. This is an extremely difficult and sensitive area, particularly in cases of alleged child abuse when views have been taken by different experts on very good scientific evidence who have come to totally opposing opinions about the nature of the problem.

On the other hand, looking back on personal experiences, I have to say that the mechanism that I was familiar with many years ago has not been explored sufficiently. When I was involved in giving expert evidence in cases of head injury in miners, I remember receiving letters jointly signed by the then National Coal Board and the National Union of Mineworkers, saying that they would accept my report as being binding on both parties. That kind of agreement in advance of court hearings in cases of alleged negligence or industrial injury could be used very much more readily.

[Lord Woolf]

My Lords, may I say a few words in support of this proposal? Expert evidence is an area in which the courts have had considerable difficulties in the past. However, following on from what the noble Lord, Lord Faulks, said, it is right to acknowledge that great progress has been made over recent years in the way in which expert evidence is used in the courts, but the amount of knowledge that is available for expert reports in connection with litigation is limited. I suggest no more than that a review of the sort suggested in the amendment is well needed.

Crime: Murder

Lord Walton of Detchant Excerpts

Monday 24th January 2011 Lords Chamber

[Lord McNally]

My Lords, over the past few months when these matters have been discussed, a number of views have been given—I have given some views myself—but the fact is that the collective view of the Government is that the time is not right to take forward such a substantial reform of our criminal law.

[Lord Walton of Detchant]

My Lords—

[Lord Hamilton of Epsom]

My Lords—

[Baroness Anelay of St Johns]

My Lords, there is considerable time. I am aware that the noble Lord, Lord Walton of Detchant, has been magnanimous in giving way twice. Perhaps we can hear him first and then from my noble friend.

[Lord Walton of Detchant]

Is the Minister aware that the House of Lords Select Committee on Medical Ethics, which I was privileged to chair, reported in 1993 that in its opinion the mandatory life sentence for murder should be abolished to allow flexibility in sentencing? The Home Office reported to that committee 23 cases in which a positive act by a family member had resulted in the death of a loved one suffering from terminal cancer. In every case, a charge of murder was considered. However, because the conviction of the individual would have given rise to a mandatory life sentence, the charge in all but one case was amended to attempted murder, as it was recognised that no jury would be likely to convict. Was that not therefore a case in which the law was being manipulated?

[Lord McNally]

My Lords, I do not try to mislead the House in any way in acknowledging that some of these issues have been before successive Governments for a very long time. On some of the issues, such as when the plea is on grounds of a mercy killing or a related defence, successive Governments have taken the view that this is a matter for Parliament rather than the Government of the day. Within their broad decision not to attempt a major reform of the law at the moment, the Government are trying to look at the guidance so that it may be simplified and to trust the judgment of judges in these matters.

Coroners: Terminally Ill Patients

Lord Walton of Detchant Excerpts

Wednesday 3rd November 2010 Lords Chamber

[Lord McNally]

I understand that my noble friend in the Department of Health will be establishing the post of medical examiner. Medical examiners will be able to give this advice.

[Lord Walton of Detchant]

Does the Minister accept that very rarely at the time of a coroner’s post-mortem is permission sought for the retention of tissue samples and slides after the post-mortem? Such archive material is invaluable for research into human genetics and into the management of human disease. Will the Minister ensure that coroners are advised to seek such permission when coroners’ post-mortems are undertaken or at least consider amending the Human Tissue Act to make such retention of material obligatory?

[Lord McNally]

My Lords, as I said in my initial reply, my department is looking at comprehensive guidance to coroners. I note what the noble Lord has suggested, and I will make sure that that is considered as part of the guidance.

Law Reform: Murder

Lord Walton of Detchant Excerpts

Monday 12th July 2010 Lords Chamber

[Lord McNally]

My Lords, I would not presume to give my own judgment on that, but I suspect that the noble and learned Lord is right that there are few precedents for that very broad sweep of our law. He is also right to say that the Law Commission's report puts forward a variety of alternatives which would give a degree of flexibility to the judiciary when dealing with this matter. I know that the Lord Chancellor is sympathetic to the line taken by the Law Commission. It is a matter of consulting and then finding time to bring forward proposals on the second part of the commission's report. As the noble and learned Lord knows, the previous Administration brought forward partial proposals, and we are now looking at the matter with a sense of urgency.

[Lord Walton of Detchant]

My Lords, the Select Committee of your Lordships’ House on Medical Ethics, which I was privileged to chair, strongly recommended that the mandatory life sentence for murder should be abolished and that judges should be given some degree of flexibility, because we had reported to us 23 cases where family members had ended the life of a loved one suffering from a painful terminal illness. In every case, a charge of murder was originally proposed, but in all but one of them, the charge was amended either to attempted murder or to manslaughter because it was felt that no jury would be likely to convict. Is it not time, therefore, for the position to be revised?

[Lord McNally]

My Lords, the short answer is yes. Such strong recommendations from a Select Committee carry weight, but we must be careful to ensure that in addressing the issue of the mandatory sentence for murder, we do not slip into other issues which have caused problems, such as mercy killing and euthanasia, which I think need to be considered separately as a matter of law.