Civil Liability Bill [HL]

Lord Hodgson of Astley Abbotts Excerpts

Committee: 1st sitting (Hansard): House of Lords
Thursday 10th May 2018 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, Amendment 2 in this group, which is in my name, tackles the same issue. The noble Earl, Lord Kinnoull, has laid out the background and reasons why this House and the country should be concerned about whiplash—false whiplash—and what are rather inelegantly called “cash for crash” events. I do not propose to weary the House by running over those issues again, which we discussed quite a lot at Second Reading.

Amendment 2 addresses the point made by the Delegated Powers and Regulatory Reform Committee about the lack of a definition in the Bill and does so in a slightly wider way than Amendment 1, moved by the noble Earl. It proposes a definition in proposed new subsection (1) but, at the same time, proposed new subsection (2) recognises the need for flexibility, in the sense that medical technology and medical sciences are always changing and there will need to be some flexibility in keeping the law up to date with those developments. Amendment 2 therefore aims to create an overarching definition, clarifying what is included within a soft tissue injury, but then provides room for flexibility, so that new ways of describing these injuries do not result in them falling outside the definition. At the same time, it allows the definition to be changed to reflect improvements in diagnosis and prognosis of these subjective injuries.

I should say that I was somewhat concerned that, having got a definition of whiplash in the Bill, a definition gap might have been left by not defining soft tissue. But the insurance industry tells me that this term is well understood and does not need a detailed definition here; the noble Earl referred to that. What I understand is called the pre-action protocol for low-value personal injury claims—I am reading this carefully because I am not entirely familiar with it myself—uses the term to define the scope of powers and has been in force since 1 October 2014, apparently so far without challenge or the need for a judicial ruling on its meaning. I hope that this amendment will be a useful contribution to the debate on this important topic.

[Lord Sharkey (LD)]

My Lords, Amendment 3 in this group is in my name and those of my noble friend Lord Marks and the noble Baroness, Lady Berridge, for whose support I am very grateful. Following the two preceding and eloquent speeches, I can be very brief. The point of the amendment is simply to put a definition of whiplash in the Bill. There are rival definitions in various other amendments, and there is now also a government definition contained in the draft SI published yesterday. At first glance, this government definition seems to provide a sound basis for discussion, but it is in the wrong place. It should be in the Bill.

As the noble Earl, Lord Kinnoull, has already said, our Delegated Powers Committee said clearly in its 22nd report that,

“it would be an inappropriate delegation of power for ‘whiplash injury’, a concept central to a full understanding of the Bill, to be defined in regulations made by Ministers rather than being defined on the face of the Bill”.

At Second Reading, many noble Lords strongly agreed with this conclusion and it is disappointing, now that they have a draft definition, not to see the Government bringing forward an amendment to put this in the Bill.

In his Second Reading reply and in his subsequent letter to us of 30 April, the Minister did not respond substantively to criticisms of using secondary legislation to define whiplash. He merely noted that he did not entirely agree with the DPRRC recommendations and that noble Lords were anxious about the definition of whiplash.

In fact, the Government had already set out elsewhere in correspondence with the Delegated Powers Committee their case for using secondary legislation. The DPRRC helpfully summarised this by saying that, first, whiplash must be defined accurately; secondly, there must be extensive consultation; and thirdly, the definition must remain accurate. The Delegated Powers Committee agreed with these propositions but said,

“it does not follow from them that the definition of ‘whiplash injury’ should be contained in regulations rather than the Bill. Neither the Lord Chancellor nor the Ministry of Justice is best placed to make this determination”.

We agree with the conclusions of the Delegated Powers Committee and invite the Minister to explain why the Government have rejected them and are still pursuing the statutory instrument route.

As to the Government’s definition itself, as I have said, it seems to provide a sound basis for discussion but we have not had enough time to make a proper assessment and to canvass the opinion of other stakeholders. We will want to return to this issue on Report.

--- Later in debate ---

[Lord Berkeley (Lab)]

My Lords, I return to the issue of employee exemption, which several noble Lords have mentioned in this debate. I have a lot of sympathy with it. In my Amendment 23, I shall be seeking some kind of exemption for vulnerable road users. My worry in these amendments is the definition of who is driving in the course of their employment. My understanding is that under the Health and Safety at Work etc. Act, you are covered if you are driving to work in your car and you are employed. The car does not have to be owned by your employer; it can be hired or your own. You are at work and, therefore, covered by the Health and Safety at Work etc. Act. I assume it is the same for Uber drivers, truck drivers and anyone in between.

It is difficult to accept an exemption that would cover all those things, whether you are self-employed or employed by a company or by somebody else. It would be fine if one could find a definition, but there are so many loopholes nowadays in driving and road safety law. I have had many discussions with Ministers over the years about whether road safety and driving legislation should be led by the rules of the Health and Safety at Work etc. Act. In other words, you are at work all the time. That applies to drivers’ hours, driving safety and everything else. I worry about the definition of driving when in the course of employment, and I have a lot of sympathy with anyone trying to find a definition.

[Lord Hodgson of Astley Abbotts]

My Lords, I intervene briefly, having put my name to the noble Earl’s amendments. I am not sure that the noble Lord, Lord Trevethin and Oaksey, quite followed the idea behind this, which is that psychological injuries are specifically identified at various places in this clause but minor injuries are not. The purpose of the amendments is therefore to remove psychological injuries as a specific category and reinsert them further down, through Amendment 22, with minor injuries, so that we sweep up everything concerned with a whiplash unless it is a serious injury, such as a fracture of a leg, which is clearly a different issue. However, the issue is picked up by the reinsertion by Amendment 22 of the words “minor injuries”, such as a bruised knee.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions to the Bill in Committee. I begin with Amendment 4, moved by the noble Lord, Lord Beecham, which would limit the definition of whiplash to soft tissue injuries of the neck. There is then a further amendment that would require the definition of whiplash to be set by the Chief Medical Officer of the Department of Health. The amendment to remove the back and shoulder from this definition would significantly reduce the number of claims subject to measures in the Bill, namely the tariff and the ban on settling claims without medical evidence. It would also encourage claims displacement into other areas to avoid them being subject to the tariff. That would be a serious issue.

The definition in the Bill has been adapted from that in the Prisons and Courts Bill following feedback from stakeholders that the definition in the latter Bill was not broad enough to capture the intended claims. The current definition, with the draft regulations that have now been produced, is intended to achieve that objective.

The amendment requiring the definition of whiplash to be set by the Chief Medical Officer of the Department of Health would provide an independent person who has responsibility for advising the Government on medical issues, but the definition of whiplash injury needs to reconcile the current legal understanding with an accurate medical definition that covers both injuries and their symptoms. This is why the Government have developed the definition of a whiplash injury with input not only from medical experts, but from other expert stakeholders, including claimant and defendant solicitors.

Amendments 8, 9 and 10 restrict the scope of the tariff provisions by reducing the injury duration of affected claims to 12 months from two years. As the noble Lord, Lord Faulks, observed, this would reduce the number of claims captured by these reforms, but have the negative effect of encouraging claims displacement or claims inflation. Having an injury duration of up to two years will ensure that genuinely injured claimants seek timely treatment for their injuries, as well as enabling the Government to reduce and control the level of compensation in whiplash claims and consequently—as is one of the objectives—reduce insurance premiums for consumers.

The noble Earl, Lord Kinnoull, spoke to Amendments 15 to 20 and 22, which would widen the types of injuries affected by both the tariff of damages and the ban on settling claims without medical evidence. It would remove the term “psychological” from the clause, so that the measures in the Bill would apply to all minor injuries related to road traffic accidents, regardless of whether they are psychological or physical in nature. Consequently, this would apply the single-figure tariff to all those injuries, irrespective of number and type, by reference to the duration of the whiplash injury alone. This would result in the reduction of damages for a substantial number of personal injury claims outside the scope of our proposed reforms. The proposed reforms are intended to reduce the number and cost of particular claims—“an industry”, some people have referred to; “a racket”, others have mentioned. We are committed to addressing the issues that arise with whiplash injury.

I understand the point made about the bruised knee. I respond to the noble Lord, Lord Trevethin and Oaksey, on the potential for discrepancies between awards made under the tariff for the whiplash injury itself and awards made for other minor injuries.

Clause 2(8) makes provision for the fact that the court will take into account other minor injuries and will make an award that is not related to the tariff itself. That is my understanding of the words in parentheses: that, in the context of the whiplash injury, regard will be had to the limits imposed by the tariff and the regulations but that, with respect to the other injuries, there will be no such limitation. That is why we do not consider it appropriate to delete the term “psychological” and extend these provisions to all minor injuries. Including minor psychological claims within the original tariff, as the noble Lord, Lord Trevethin and Oaksey, indicated, was done in order to meet the way in which claims develop in this area. Indeed, it is in line with the Judicial College guidelines for personal injury compensation, which indicate that minor psychological injuries such as travel anxiety are not in themselves separate injuries attracting compensation; they have to be linked to physical injury itself.

Turning to Amendment 21, moved by the noble Baroness, Lady Primarolo, if one considers Clause 2(6), persons who are unable to locate treatment for either their physical or psychological injuries are in fact only required to take appropriate steps to seek such treatment. There is no requirement for them to undertake it if it is not available for any number of practical reasons. I would therefore suggest that this amendment is unnecessary in the circumstances.