Civil Liability Bill [HL] — House of Lords, 2018-05-10
Topic: Health
David John Maclean (Conservative, Centre-right): My Lords, as chairman of the Delegated Powers Committee, which published a report on this Bill, I would like to make a few comments. First, I have a purely personal comment. Colleagues may be interested to know that I have made a full recovery from the serious accident I had in the last few days—not that I recall having had a serious accident, but my mobile phone tells me that I did and that I should pursue a claim. I say to my noble friend the Minister that this racket is still happening again and again. I had thought, as a passionate supporter of the Government, that we had nailed this down and stopped the grabby racketeering lawyers pursuing these claims. I hope in future we will be able to put a stop to it Going back to the Bill and the amendments, the Delegated Powers Committee looked at this and said we were becoming rather familiar with skeletal Bills. By any standards, this Bill is skeletal. Then we went on to say, as the noble Lord, Lord Sharkey, so very kindly pointed out—the noble Earl, Lord Kinnoull, also paid tribute to our work—that: "In this Part ‘whiplash injury’ means an injury, or set of injuries, of soft tissue in the neck, back or shoulder", and then the description stops to say that the rest of the definition will be, "specified in regulations made by the Lord Chancellor" I am not revealing committee secrets but half of us on the committee thought that the parliamentary draftsman had been distracted—he was half way through writing the definition and stopped and forgot to complete it—because it seemed an elementary thing to complete I have not seen last night’s regulations—I shall look at them carefully—but I did a quick Google search last night on the definition of a whiplash injury. Even the NHS website states that: "Whiplash injury is a type of neck injury caused by sudden movement of the head forwards, backwards or sideways" Wikipedia has a much more detailed definition, which I assume from some of the spelling is an American one. There is a fascinating point in it: "Cadaver studies have shown that as an automobile occupant is hit from behind, the forces from the seat back compress the kyphosis of the thoracic spine, which provides an axial load on the lumbar spine and cervical spine. This forces the cervical spine to deform into an S-shape where the lower cervical spine is forced into a kyphosis while the upper cervical spine maintains its lordosis. As the injury progresses, the whole cervical spine is finally hyper-extended" That is not skeletal. It may be a bit too much fat on flesh on the bones but I quote it because I think it important that we have a technical medical definition, by physicians, relating to the distortion and flexing of the spine and not just a list of symptoms. If we merely make a list saying that people feel dizziness, nausea, headaches and so on, we could include everything. After a good night’s dinner one could feel those symptoms and not necessarily have been involved in an accident. If it is simply possible to get some definitions from Google and to look at the excellent definition from the noble Earl, Lord Kinnoull, and from my noble friend—who is not a lawyer—these definitions seem to me to be a very good starting point. If the Government’s definition in the regulations is even better, let us go with that. My committee was at an absolute loss to understand why it was not in the Bill. There is no justification for it not being there. Of course, there can be an order-making power for the Minister to tweak or amend it in due course as medical science changes. We said that there should be extensive consultation. If I go outside the Chamber right now and phone the Royal College of Physicians, within 10 minutes it will give me a pretty good definition. The doctors who deal with this issue are the experts, not the Lord Chancellor or the lawyers in the Ministry of Justice. We must let the doctors come up with the definition and put it in the Bill so that we have complete certainty in the future.