Time for compromise and understanding

Yesterday I chaired a conference entitled ‘Whiplash: The Evidence’. It was hosted by the Association of Personal Injury Lawyers (APIL), of which I am a Fellow, and took place at the Grange City Hotel, near the Tower of London.

The Tower is well-known for having a bloodthirsty history, but I was surprised to learn that the Grange City Hotel has also hosted amateur boxing events. Perhaps some of the bouts even happened in the same room set aside for APIL yesterday – a strange thought.

But then again, perhaps a sense of conflict lurking in the margins was appropriate, for when it comes to the ongoing debate about whiplash it seems that polarised views have been taken and battle engaged. Or, to use a boxing metaphor, the two sides have not only laced up their gloves but have climbed through the ropes and now find themselves bloodied but still standing in the mid-point of a particularly savage fight.

My hope, after yesterday’s conference, is that the hostilities cease. The two sides – insurers and government on one side, with claimant solicitors and medical experts on the other – need to forge a dialogue and start working together to resolve the problems of a system that has become dysfunctional. Nothing is ever gained by rushing through reform; change needs to be holistic and sensibly considered. It is not too late for this to happen even in an area as controversial as whiplash.

In the hope that compromise between the two combatants can be found I suggested yesterday that solicitors should hold their hands up and acknowledge that there are problems in our profession. That there are problems is, after all, no secret. Some solicitors have forgotten the standards they should adhere to, others think more of their profits than their clients. We need to commit to the Benson principles – about which I have written here before – and agree to robust regulation by a regulator which enforces professional standards and has the tools and inclination to punish those who transgress. A robust regulator will help to stamp out the various other maladies which dog our profession – cold calling, advertising which incites litigation, and conflicts of interest.

If the legal profession is prepared to hold out an olive branch, I hope it will be reciprocated by the insurance industry – and prove to be a prompt for a united approach to reform in this sector. This, of course, would entail the insurance industry accepting that it needs to put its house in order, too. Many practices need to change, not least calling injured parties and convincing them to settle (with no medical assessment and no legal representation), then chalking up the resulting under-settled cases as ‘whiplash’ claims. We then need to ensure that the drive to ‘reform’ is slowed down and properly managed. At present, the bandwagon is pushing for the introduction of insurer-driven changes to the RTA portal and small claims court by April 2013. This is clearly wrong.

Reforms that I would like to see the insurers accept can be succinctly summarised. No personal injury claim should ever be settled without supporting medical evidence – or legal representation. If this were agreed I have a strong suspicion that the ‘whiplash epidemic’ would soon start to abate. Next, we need to upskill our understanding of whiplash as an injury. There needs to be consistency across all cases, informed by the necessary biopsychosocial model. There also needs to be better data sharing. Insurers need to share IFB data with claimant representatives. By sharing this information we can identify patterns of claiming and ensure improved fraud prevention.

Add to this a commitment by insurers to pass on costs to motor policy purchasers via a simple percentage mechanism where claims costs reduction equate to reduced premiums and we will have a system with less fraud, less costs and increased fairness.

Isn’t that worth striving for?

I hope so. Here’s to less by way of pugilism by the opposing sides and more consensus, understanding and compromise.

Whiplash reform: slanted to the insurance industry’s benefit

I was delighted to see that The Lawyer published my blog from last week, in which I criticised the bandwagon to dismiss whiplash. Delighted, yes, but despite some welcome extra publicity I do not feel that it is right to leave this issue alone.

The fact is that the government’s drive to ‘reform’ the way that whiplash claims are dealt with will leave anyone who has suffered a genuine injury feeling guilty if they make a claim, or, worse, unable even to make a claim in the first place. But what is even more worrying is the way in which the statements like that of Jack Straw, writing in The Times last week, are uncritically accepted.

Do a google search of ‘whiplash reforms’ and the newspaper headlines that come up are almost all slanted in favour of insurers, as if to accept, without any analysis, Straw’s statement in his Times piece: “Everyone I’ve met in the whiplash industry knows that they’ve been rumbled; that the game is nearly up.” The Labour MP for Blackburn wrote of his pleasure at “ministers’ determination tackle this issue”, in terms that were as pejorative as they were wrong. Whiplash claims apparently depend on “very flaky medical evidence submitted by practitioners with a vested interest”. It is supposedly “too easy to establish liability in whiplash claims”. All in all, they amount to “scandal” which only Parliament can put right. No surprise, then, that Mr Straw cites a book whose very title shows that it is likely to be biased rather than objective: Whiplash and Other Useful Injuries, by Andrew Malleson.

But talk to informed claimant solicitors, GPs and medico-legal experts who deal regularly with whiplash caused injury and you will find a very different view. For those of us at the coalface – for those of us who deal with the reality of the person whose neck has suffered real trauma in a road accident, through no fault of their own – whiplash is a real and debilitating condition. What surprises me, in newspaper coverage of the issue, is the way that journalists seem to accept that whiplash is inevitably ‘bogus’. Why is this? And do the journalists promoting  this line not understand that in doing so they are championing big business rather than the man in the street?

It is all very well for the likes of Jack Straw and other opponents of whiplash to say that it is driving up the cost of motor insurance premiums. But does anyone really think that insurers will suddenly drop the cost of those premiums if and when the government makes it all but impossible to bring a claim for low velocity whiplash incidents?

An oft-ignored fact gives the lie to this: since the introduction of the road traffic accident portal in 2010, insurance premiums have, according to the insurers analysis, been increasing above the rate of inflation. This is despite some  estimate  £500m in legal costs being  saved by the insurance industry since the establishment of the portal. That being the case, how can we seriously believe that insurers will pass on costs savings to motorists as a consequence of so-called ‘reforms’ to whiplash claims?

Past experience tells us its not guaranteed. The real scandal is not that people make claims for whiplash but that so few people (and certainly, no one in government) are prepared to peel away the layers in this debate and confront the truth: reforms to whiplash are geared to insurers’ benefit.

The whiplash bandwagon is careening out of control

Once again the whiplash bandwagon has rolled into town – and once again plenty of people have hopped aboard. As Transport Secretary Justice Greening and Justice Secretary Kenneth Clarke are expected to announce whiplash claims reforms today, at what is the second summit of motor insurers in Whitehall (the first was held on 14 February, with no less a host than David Cameron), the great, the good and the not-especially-well-informed have sought to make their views on whiplash known.

Speaking before the summit, Justice Minister Jonathan Djanogly told the Radio 4’s Today programme: “I think that people do suffer from neck injuries and that it’s important to have a compensation system that allows valid claims to go through. But I do think, when we hear that there is an average of 2.7 whiplash claims for every accident in this country, that the system is being misused.”

Mr Djanogly went on to articulate the government’s view: that all claims for whiplash should go before independent panels of doctors. “At the moment they are normally referred to the claims managers’ panels of doctors,” he said. “We also think we need to have tougher guidelines over doctors’ diagnosis of whiplash in the first place.”

The AA was quick to wade into the debate. It declared that reform of the injury claim system “cannot come soon enough”. Simon Douglas, director of AA Insurance, said: "I hope that today's Government announcement will see a tight timescale applied to reform of the civil litigation which, at present, encourages people to make a claim regardless of how serious their injury is or even if they have not suffered injury at all."

While Douglas also called for a clamp down on cold-call claims management and personal injury firms (and, into the bargain, noted that the present system was “dysfunctional”) the essential thrust of his comments was to echo the government’s oft-enunciated, always unthinking line about “compensation culture”. Clarke himself happily took up the baton, to declaim that: “It is scandalous that we have a system where it is cheaper for insurers to settle a spurious whiplash claim out of court than defend it, creating rocketing insurance premiums for honest drivers.”

In fact, what is truly scandalous is the absence of any will on behalf of the government to entertain a serious debate about whiplash. The received wisdom is to assume that whiplash is fabricated, that anyone making a claim for compensation is inevitably a fraudster. This is a grave slur on the majority of people who are unfortunate enough to suffer whiplash in a motor accident. It could be scotched if the government were to invite solicitors who represent whiplash victims to attend today’s summit, and others like it, but instead the government seeks only to discuss the matter with those who have a vested interest in annulling, as much as possible, the chance of anyone bringing a claim.

More to the point, there are those on the government’s badly piloted bandwagon who contend that whiplash claims should be barred where the impact occurs below a certain velocity. This again is wrong. Although the person experiencing whiplash in such circumstances – for example, when stationary in traffic and ‘rear-ended’ by another vehicle – may not have overt signs of injury, the possibility of soft tissue damage to the overstretched ligaments of the neck has been well documented. So, too, is there an increasing array of cutting edge medical analysis to the effect that the psychological effect of such an accident may be sufficient to create the symptoms of whiplash.

But from a lawyer’s perspective, there is a fundamental issue of basic negligence law. At law school we learn of the ‘eggshell skull principle’. This means that a person committing a wrong must take his or her victim as they’re found. If, then, a victim is extra vulnerable – perhaps because of a pre-existing medical condition, such as an operation to the cervical spine which sees fusion of miscreant discs – then the wrongdoer has to account for harm that might not ordinarily have been foreseen. 

The government’s endeavours to introduce a velocity threshold would do away with the eggshell skull principle – itself a legal doctrine that has held water for over a century. The idea is emblematic of the wrong-headed approach currently being taken to the issue of whiplash, and it is yet more evident when we stop and remember that the current system already allows for the appointment of independent medical experts to assess the veracity of whiplash claims.

The whiplash bandwagon is in danger of being driven so badly that accident victims have little or no chance of redress. That may be good news for the insurance industry – and the many government ministers who have a financial stake in it – but it’s a poor return for the man in the street.

A serious case of nerves ahead of Chelsea’s biggest game of the season so far

I confess to trepidation as I write this blog. However, please forgive me for a further confession: my nerves aren’t to do with the law.

Instead, they’re tied up in the fate of Chelsea FC, the club I’ve supported since I was a boy. I wrote a few weeks ago about Fernando Torres and his loss of confidence, a strange condition because while he continued to play well in other areas of the pitch when it came to a chance in front of goal he seemed to be suffering some kind of curse. Today I’m writing about a bigger subject than even the enigmatic Torres: the remainder of Chelsea’s season.

To lapse into football cliché, it’s all to play for. The sacking of Andre Villas-Boas in early March may have seemed harsh but it has resulted in a significant upswing in Chelsea’s fortunes. Roberto Di Matteo – who played for Chelsea 119 times between 1996 and 2002, netting 15 goals – has come in and done an excellent job, taking what the press had taken to describing as a misfiring team of ageing pros to an FA Cup final against Liverpool and a Champions League semi-final against Barcelona. Currently lying sixth in the Premier League, Chelsea also have a chance of a top four finish by the end of the domestic season.

But tonight’s semi-final second leg against Barcelona is what’s got me on edge. Chelsea go into the game in the ascendancy, after last week’s 1-0 home win. It would be amazing if we could return from the daunting Nou Camp with an overall victory against a team which contains the likes of Messi, Iniesta and Xavi, but aside from the mountain of a task ahead I can’t help but be worried by two things.

One, Di Matteo says that Chelsea will go into the game with the intention of scoring. This sounds admirable, but I hope the team doesn’t abandon its solid defensive principles in the process. I would have thought that a counter-attacking game was the best option at the Nou Camp.

Two, Torres has raised his head above the parapet and boldly stated that Chelsea can win. Granted, he cites Chelsea’s battling qualities as essential in this mission, but is the public confidence of a player who has generally been so cursed with hesitancy this season a good thing? Or is it tempting fate?

Time will tell. Happily, shortly after my last piece on footballing matters Torres ended his goal drought by scoring two goals in the 5-2 FA Cup quarter-final win over Leicester City. In truth, he wasn’t hugely impressive on Saturday’s in the 0-0 draw with Arsenal. Perhaps, then, the very act of writing will have an influence on tonight’s game?

I doubt it. Football fans the world over are prone to superstition, but cometh the hour, cometh solely Di Matteo, his team, the Nou Camp and the not inconsiderable task of prevailing over the best side in world football by far. I’ll be watching – nervously. 

Principles lost? The loss of professionalism in the personal injury system

In 1992 Lord Benson stated there were nine key principles of professionalism to which lawyers should adhere. Two, in particular, should be second nature to lawyers: the principle that ‘ethical rules and professional standards ... should be higher than those established by the general law’ and the principle that legal practitioners ‘must not allow themselves to be put under the control or dominance of any persons or organisation that could impair that independence’.

Regrettably, adherence to these principles is not always second nature, especially if we take a bird’s eye view of the personal injury sector. Here, as well as potentially referral fees – which the government intends to ban – there are a myriad of other practices which conflict with Lord Benson’s principles. Alternative Business Structures (ABSs) have been heralded as signalling a brave new world but they create a route to absolute ownership by insurers, who then effectively bypass the referral fee issue and achieve wholesale ownership of the entire process, from providing insurance as an indemnity insurer to solicitors making the claim against the third party. The government’s failure to any action given that ABSs will have this effect is symptomatic of a worryingly piecemeal and uncoordinated approach to the referral fee problem.

Some might say that the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) will reform the personal injury sector. It professes to ban referral fees but, given the loopholes carved out in various places, is likely to be a paper tiger. Moreover, simply banning referral fees will not show insurers, CMCs and indeed some solicitors the error of their ways; in all likelihood, it is likely to push the practice further into the shadows. New practices will inevitably be devised which will share the detrimental and profit-driven features of referral fees. Some in the PI industry have already described to me the receipt of calls from CMCs offering to sell information with regard to prospective clients under the guise of ‘marketing information’ – a euphemism for ‘referral fee’. 

It was the proliferation of referral fees – and their associated, seemingly endless ancillary services such as car hire and medico-legal services – which have done so much damage to the PI system. Wedded to these are the advertising campaigns which CMCs and some solicitors have embarked upon. Not only do they sail dangerously close to inciting litigation, they cheapen the legal profession to such a degree that the title ‘ambulance chaser’ is not an entirely inappropriate label. Add the sale of personal data and underhand marketing tactics such as spam text messages, and we are faced wholesale systemic failure in this vital branch of the law.

If we want to grapple seriously with all the issues, we need wholesale cultural change. The government’s piecemeal, reactive approach is flawed. The interests of the public and victims of accidents must be the priority in the minds of all professionals, with profiteering stamped out.

Cynics might say such a utopian ideal for the PI system is unattainable. However, I would counter that it can exist if we rediscover and implement Lord Benson’s wisely drafted principles.

What underpinned Lord Benson’s approach is the notion that to be professional is to act in the public interest. The barometer by which he proposed to measure the standard of the profession is the degree to which individuals and their governing body act ethically. These principles should be the foundation of reform, and, even more important, practice. If the mindset of all the participants within the personal injury system is focused on acting ethically in the public interest, there will be no need for ‘catch-all’ regulation. Although a minority may still exploit loopholes in the system and evade regulatory oversight, they will eventually be stamped out by market forces. In fact if you speak to potential private equity investors in the profession, they see the value of retaining and emphasising professional standards.

Such a picture may seem uncharacteristically optimistic from someone who has written of his dismay about our industry and current efforts to reform. However, for every organisation or individual I have encountered who has displayed contempt for the public good, I have met dozens more who wish to do the best for their clients. It is because of this that I am certain that our profession and the industry can save itself from ruin and regain the principles which have been lost.

For any readers who are APIL members it is intended to publish a fuller article on this subject in the May edition of Focus, or if you are not and prefer please let me know and I will provide a full copy of the article.

Whiplash caused injury is not a bogus condition

Whiplash never ceases to polarise opinions. On the one hand, there are those who say that whiplash is a synonym for an imagined condition, that it’s shorthand for ‘delusional and malingering’. Those who endorse this view tend to be insurers and/or members of the present government; the latter see whiplash as an example of ‘compensation culture’. On the other hand, there are many who argue convincingly that whiplash is a genuine and profoundly debilitating medical problem. Those who speak most persuasively from this corner are victims of accidents which have left them suffering from whiplash.

It is these people – the victims and sufferers – to whom we should listen most carefully. Insurers have a vested interest in scotching the existence, in medico-legal terms, of whiplash: they won’t have to pay out what tends to be an average of £2,500 per claim. The government uses whiplash for PR purposes, lambasting compensation culture at the same time as many of its members have financial interests in the insurance industry (even so, they might care to compare and contrast the UK position to the situation in Switzerland: there the average payout is in excess of €30,000 per claim).

Overseas jurisdictions aside, we need to consider whiplash on its own merits. That, in turn, means looking at case studies. Imagine, then, the following scenario.

A woman is on her way to work with a colleague, travelling in a line of traffic. Suddenly, she has to brake hard because the driver in front abruptly comes to a halt. Unfortunately, her commendable awareness is not replicated by the driver behind her, who collides with the rear of her vehicle. The scenario will be familiar: it happens every day on Britain’s roads.

But if it is commonplace, it is also traumatic. What, for example, if the woman’s car is hit by another vehicle travelling at speed? What if the impact occurs when the woman’s car is stationary but the other car is moving at a low velocity?

I know of many such cases. The pattern is often the same as in the imagined scenario above. The driver whose car has been hit develops severe pain in the back of the head. Stiffness in the neck is also evident. Then come the headaches, nausea and dizziness – and they continue for a long time. In other words: the classic symptoms of whiplash. Sometimes, the victim will attend the minor injuries unit of his or her local hospital; thereafter, the local GP and an orthopaedic consultant. The medical profession will be unanimous in diagnosing injury. And yet, when it comes to making a claim for compensation –for injuries sustained through no fault of the victim’s – hurdles appear at every turn. Insurers dispute the speed, weight and direction at which the miscreant driver’s vehicle was travelling; they argue over the latent injuries that can arise; they hire expert witnesses to contend that the victim has manufactured his condition. They do anything but accept that the victim has suffered a genuine and serious injury.

Moreover, accidents are, by their very nature, traumatic. As I have previously written, cutting edge research indicates that even if physically verifiable trauma does not accompany whiplash, it is no less debilitating for its sufferer – precisely because of the psychological factors inherent in the kind of incident that leads to whiplash.

I am looking forward to a conference hosted by the Association of Personal Injury Lawyers on 15 May, whose title is ‘Whiplash: The Evidence’. I hope that in examining whiplash further, we will realise that the present system – which allows insurers to present evidence to challenge claims – is a fair and reasonable one.

It is neither fair nor reasonable to package up whiplash as a facet of ‘compensation culture’, so that victims become unable to claim compensation for genuine injuries that are not their fault.

Changes to the RTA Portal need clarity of thought

This time next week I will be attending an interview. Well, not an interview in the traditional sense of the word, but an interview with Andrea Nicholls of College of Law Media. As part of a video series for Continuing Professional Development (CPD) for lawyers, Andrea will be asking me a number of questions about the RTA Portal, the electronic Portal put in place nearly two years ago to support the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents.

I’m looking forward to this particular interview – and my good mood is not solely down to the fact that Fernando Torres has remembered how to score goals. I can’t help but be pleased by this development, not least as last weekend’s 4-2 win at Aston Villa has helped put Chelsea back in with a decent shout for a Champion’s League place, but I'd applaud the approach to the interview for another reason, and it can be summed up in one word: clarity.

Andrea Nicholls is a writer-presenter as well as an employment lawyer, and she has kindly sent through a list of pre-interview questions which are well expressed. Combined with further clarification in discussion hopefully Andrea will have ensured the session meets the objective, of practical and relevant advice to practitioners. 

Andrea tells me I can’t wear blue – apparently, I will be rendered akin to the Invisible Man if I do – but aside from this modest disappointment (see above: it’s a Chelsea thing) I couldn’t have been treated more courteously before a televised interview. I’m optimistic that we will, as Andrea hopes, end up having a relaxed and yet informed conversation rather than a stiff and stilted interview. But if Andrea’s questions about the Portal are a refreshing model of clarity, regrettably the same cannot be said of the government’s proposals for change in this area.

Here, clarity of holistic thought is sadly as absent as Torres’ goal-scoring for most of this season. This is especially so when it comes to the ABI inspired proposal to fix at £300/£400 the fee for low-value road traffic claims handled through Portal. This would amount to a dramatic reduction from the present fixed costs of £1,200.  In reality, the protocol requires over eight hours of work.  The danger is obvious namely that such a slashing of costs will encourage or even force cutting of corners; in any event, it can only prompt a lack of professionalism, perhaps even encouraging spurious claims and even fraud.

The Ministry of Justice has begun meetings with stakeholders over its plans to make changes to the Portal, a key limb of which is extending the Portal to a £25,000 limit (a £15,000 increase from the current cap). This, too, is fraught with difficulty, both in the apparent rush with which the MoJ want to see the changes implemented – within just a year – and the extension of the Portal to covering employers’ and public liability accident claims.

As with too many of the initiatives emanating from the government in the personal injury sector, there is a sense both of undue haste and that a bandwagon is being pushed headlong to an uncertain fate. What is required is a holistic approach and a sensible consideration of the practical workings of the Portal, so that such changes as are made are in the best interests of the injured person as well as the public at large.

If only the government could adopt some of Andrea Nicholls’ clarity of thought. Meantime, I will continue to look forward to next Wednesday’s interview – and albeit that I can’t wear blue, I will also hope that Fernando Torres sustains his return to form, particularly since I sit finalising this blog in the Aziz deli, round the corner from Stamford Bridge, and before doing battle with Benfica!

Clarity, at last, for mesothelioma victims – but we need to keep a watch on LASPO

At last, some clarity in the fraught arena of mesothelioma litigation. Today’s judgment by the Supreme Court finally establishes a level playing field and emerges as the single most important judicial decision affecting asbestos liabilities in the UK to date.

I touched upon mesothelioma, a form of cancer caused by exposure to asbestos, last October in the context of the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO). I made the point that the government’s determination to push LASPO through would, in reducing the recoverability of success fees and after the event insurance (ATE), make it very difficult for mesothelioma victims and their families to bring claims.

This remains a live issue but meanwhile the Supreme Court has been busy. Five justices – Lord Phillips, sitting as President, and Lords Mance, Kerr, Clarke and Dyson – have unravelled a complex skein of law and fact to give judgment on an appeal from a Court of Appeal ruling in 2010. The background is undeniably obscure, for many lawyers as much as laypersons, but today’s judgment concerns the obligations of insurance companies under various contracts of employers’ liability (“EL”) insurance.

In essence, the Supreme Court was tasked with determining the scope of the insurers’ obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos. This was complicated because of the unusually long gestation period for mesothelioma: it can take up to 40 years for between exposure to asbestos and the manifestation of the disease. The insurers’ case was that EL policies only covered mesothelioma which manifested itself as a disease at some point during the relevant policy period. In contrast, the employers argued that the insurance policies covered mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later.

Thankfully, the Supreme Court came down on the side of the victims and their families. Its analysis of the factual nexus and preceding judgments led it to conclude that it would be “remarkable if the insurers were not liable under the policies”. Crucially, then, for the purposes of the EL policies, “the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurer’s obligation to indemnify the employer.”

What this means is that there is now certainty and a level playing field for those affected by asbestos-related disease – the biggest killer in the workplace in Britain. Insurers have continually tried to wriggle out of liability for mesothelioma claims but this judgment should, thanks to its clarity, render such attempts futile and, just as crucially, see off the prospect of satellite litigation on similar issues.

Hats off to the Supreme Court justices but let’s not forget that LASPO as it is currently drafted will make it difficult to get claims off the ground in the first place. We need to remain vigilant, and ensure that the government’s easy spin about battling ‘compensation culture’ does not ultimately deny the deserving the right to justice.

We go into hospital for treatment. We don’t expect to be set on fire.

Going into hospital is not a pleasant experience. For all that doctors and nurses do a wonderful and valuable job, for all that they’re almost invariably decent and caring people, and for all the improvements in the culinary fare on offer thanks to the NHS, it remains the case that only a tiny percentage of people actually want to go into hospital.

If we do have to go into hospital, most of us grit our teeth and say that it’s for the best. The operation, procedure or treatment we’re set to undergo will hopefully make us feel better, and then we can leave and get on with our lives.

That’s the plan. But sometimes the best laid plans go wrong. Sometimes hospitals get it wrong, and if they’ve been negligent, or worse, it’s right that the people who are affected should be able to bring medical negligence claims. The last thing that any patient should have to put up with is suffering wrong at the hands of hospital staff and having no remedy.

I say this is ‘the last thing’, but perhaps the last thing we expect, as we lie unconscious on an operating table, is to be set on fire. Surely this could only happen in our worst nightmares?

Wrong. Astonishingly, this was precisely the fate of a patient at a hospital in North Yorkshire this month. The patient was reportedly undergoing surgery only to be set on fire during the procedure when solution used to clean skin ignited.

As Liz Booth, director of operations at Scarborough and North East Yorkshire NHS Trust, said: “I can confirm that during a surgical procedure a solution used to clean the skin ignited, causing skin burns to the patient. The skin burn was treated immediately and the patient was kept in hospital overnight. As a precaution the patient was transferred to Pinderfields for further assessment and on return was discharged.”

Needless to say, Ms Booth also said that her hospital was “extremely sorry for any pain and distress”. Moreover, she announced that a full investigation was commenced within minutes. “A final report will be produced and shared with the family,” she said.

It seems to me that the report – with suitable redactions – should be made available not merely to the family concerned but to the public. Yes, accidents happen, but the trauma to this poor patient must have been considerable, not merely for the pain of the burns themselves but also on account of the incident having happened while the patient was under anaesthetic. The public have a right to know how such a regrettable incident came to pass – and they have a right to know that the hospital will take all such steps as are necessary to ensure that this never happens again.

And lastly, while the government may decry what it insists on labelling as the ‘compensation culture’, I hope that the patient has secured representation by reputable personal injury solicitors. Compensation, in circumstances like this, is exactly the price that should be paid.

Being cool shouldn’t come at the expense of being safe

A few weeks ago I wrote a piece in which I wondered whether cyclists ought to be compelled by law to wear helmets. Its prompt was a conversation with Peter McCabe, the CEO of the brain injury association and charity Headway, whose aim is to increase awareness of brain injury and its consequences. Peter made a strong case for legislation to make cyclists have to wear helmets, something that the Post Office made compulsory for its 37,000 cycling postmen in 2003.

By the time I’d written my piece, I was erring strongly on Peter’s side. However, I recently attended a presentation by Martin Potter QC to the Association of Personal Injury Lawyers Transport Group, and found  the biblical proverb true: ‘The first to present his case seems right, until another comes forward and questions him’.

No legal duty to wear a helmet

Martin is a barrister at 2 Temple Gardens. He specialises in personal injury and clinical negligence cases, and has amassed plenty of experience in sports-related litigation, especially involving cycling. His presentation was entitled ‘Cycle Helmets: A Duty to Wear?’ and it ably set out both the law and the arguments for and against wearing helmets.

At present, of course, there is no legal duty for a cyclist to wear a helmet. There may be circumstances when not wearing a helmet could produce a finding of contributory negligence, but they are surprisingly rare. Moreover, Martin’s presentation revealed that only last February a parliamentary debate suggested that change was not in the offing, with MPs apparently convinced that there should be virtually no barriers to cycling, precisely because it is perceived as ‘a good thing’.

Cycling increases levels of fitness and longevity

As Martin put it: “The public policy interest in encouraging and promoting cycling is widely recognised and the subject of much public expenditure. Cycling increases levels of fitness and longevity and decreases obesity, healthcare costs, traffic congestion, pollution and the burning of fossil fuels.”

Thereafter, Martin skilfully examined the evidence as to the efficacy of cycle helmets in reducing brain injuries (inconclusive), assessed the risks in cycling per se (greater in terms of perception than fact), and adduced research which suggested that promoting the use of helmets actually reduced the levels of cycling – something we don’t want, given all the perceived benefits of cycling. In summary, Martin suggested that “it is neither right nor wrong for a cyclist to wear or not wear a helmet. It should be a matter of personal choice leaving the blame to lie with the person or persons responsible for the collision.”

I am not so sure, but, in truth, I can see both sides of the argument. Both Peter McCabe and Martin Potter QC are persuasive, articulate and convincing men. Martin posited the contrary case extremely well, but is it really the case that if we insist that all cyclists wear a helmet, we drive down the numbers of people riding bikes? By extension, if we legislate to compel a cyclist to do the opposite of David Cameron and Boris Johnson – both of whom seem to frequently  eschew a helmet even on the busy streets of London – can we really be said to be encouraging sloth?

Of course not. And yet ... Martin put his case so well that I have paused for further thought and reflection. What is certain is that this issue requires research, analysis and debate. Meanwhile, I’d favour  erring on the side of caution, particularly when it comes to children. The prospect of even one child needlessly suffering brain injury is too horrific to contemplate. Cycle helmets may not be the last word in fashion but they might just make a difference when it’s needed. Better to wear one than worry about being cool.