Wednesday, 30 November 2011

Should cyclists be compelled by law to wear helmets?

If the government has its way, the current 70mph speed limit on Britain’s motorways will be increased to 80mph in 2013. The Transport Minister, Philip Hammond, told the world that change was in the air at September’s Tory party conference. As he put it: “Britain’s roads should be the arteries of a healthy economy and cars are a vital lifeline for many... it is time to put Britain back in the fast lane of global economies and look again at the motorway speed limit which is nearly 50 years old, and out of date thanks to huge advances in safety and motoring technology.”

Mr Hammond may have a point. The existing 70mph limit was established in 1965. Since then there has been a fall of 75 per cent in the numbers of people killed every year on British roads. It may be the case that only a university-educated technician can fix today’s cars, but technology has undoubtedly made driving a lot safer than it was back in the days when vehicles resembled leviathans and power steering was practised only by weight lifters.

But if there might be a case for raising the speed limit on motorways, it seems to me that we need to be taking a far more cautious view when it comes to another form of transport, one that most of us learnt to enjoy as toddlers – albeit with stabilisers. I’m referring, of course, to cycling: an innocent, invigorating and healthy pursuit, something at which Britain excels as a sporting nation and something that huge numbers of us enjoy recreationally on weekends. What’s not to like, indeed, about cycling?

My sentiments exactly, but a recent chat with Peter McCabe, the CEO of the brain injury association and charity Headway, gave me pause for thought. Headway’s primary aim is to increase awareness of brain injury and its consequences and to initiate activities and campaigns which will reduce the incidence of brain injury.

I was chatting generally with Peter, himself an eminently reasonable man, when the topic of brain injuries sustained following cycling accidents came up. Peter’s usually unruffled demeanour changed dramatically. In fact, it wouldn’t be far short of the truth to say that he became seriously vexed by the issue. Why? Because there is a simple means of reducing, and sometimes avoiding altogether, a brain injury if you come off your bike. It’s this: wear a helmet.

The Post Office compelled its 37,000 cycling postmen and women to wear helmets back in 2003, a decision made following the deaths of five cycling post workers in the three years up to 2001. This was a decision which met with Peter’s approval. “If you spend time on a hospital ward, meeting people who’ve sustained serious brain damage after coming off their bikes while not wearing a helmet, you’d agree with me that compulsory cycle helmets are essential for children. Surely the safety of children in the UK is every bit as important as it is in Australia, New Zealand and 22 States in America (where such legislation has been in force for some years),” Peter told me. He added that it was both heart-rending and infuriating to see such damage, when the government could take real steps to prevent it by a time-honoured expedient: legislation.
What do you think? If it is prepared to increase the speed limit on motorways, on the basis that technology has made driving safer, should the government legislate to make the wearing of cycle helmets compulsory, just as it did, in 1983, the wearing of safety belts in cars? Do you agree with Peter McCabe or with London’s mayor, Boris Johnson, who seems to cycle everywhere without a helmet, intent on enjoying the wind in his flowing locks? 

For me, whatever the statistics say one thing is obvious. If you’re wearing a helmet while riding a bike and are hit by a car at 40mph, it probably won’t make a lot of difference. But if you’re wearing one and something goes wrong at under 20mph – say because you simply fall off while at traffic lights and hit the ground - it might be the difference between your chances of continuing to enjoy your life or being reduced to a vegetative state. Maybe, then, the government should be looking at legislation to protect cyclists as well as to help motorists come 2013.

Wednesday, 23 November 2011

From cash-for-questions to referral fees: a short history of institutional dysfunction

The Leveson Inquiry is gripping. All manner of the great and the good seem to be involved in the government’s quest to unravel the culture, practice and ethics of the press. Yesterday Hugh Grant gave evidence; later this week Steve Coogan, J K Rowling, Max Mosley and Garry Flitcroft will appear. We’re only at the outset, too: this one will run and run.
At the same time as Lord Justice Leveson, sitting in the Royal Courts of Justice, does his best to deal with the phone hacking scandal, a mile or so away in the Old Bailey a jury is hearing evidence in the trial of Gary Dobson, 36, and David Norris, 35, who are accused of the murder of Stephen Lawrence in April 1993. The jury will reach its decision in due course, but the facts of this case are already well-known. Indeed, the tragic murder of Stephen Lawrence and the resultant bungling by the police led to an Inquiry led by Sir William Macpherson, whose report was published on 24 February 1999.
The Macpherson report developed the notion of institutional racism, which it defined as follows:
The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people. It found that institutional racism was prevalent in the Metropolitan Police Service (and other services), and had played a role in the flawed investigation into Stephen Lawrence’s murder by the police.
More recently, we have seen the scandal of MPs’ expenses. Jumping back a quarter of a century, there was the notorious cash-for-questions debacle. And to return to the present, there has been justifiable public outrage at the outsize and disproportionate scale of bankers’ bonuses.
All of these things, it seems to me, bear a relation to what ails the personal injury sector. I have written often on the many problems which beset this industry. They may not amount to outright criminality, as in some of the analogies above, but they are significant nevertheless and range from the issue of referral fees to a pervasive lack of market transparency, to blatant profiteering, via victim auctions and the endless merry-go-round of commissions, to endemic conflicts of interest. Again, while not criminal acts they are they connected to phone hacking, institutional racism, cash-for-questions, MPs’ expenses and bankers’ bonuses because in each instance malpractice has become systemic. It becomes second nature to those working in each particular sector or industry. They get away with it, and keep getting away with it, for so long that in time they don’t even recognise that their conduct is wrong.
I think, then, that what we witness periodically is institutional dysfunction. Hopefully the Leveson Inquiry will enable the media to put its house in order; similarly, it seems there is now a strong following wind to enable the personal injury sector to reform. But change will only be accomplished via a holistic approach, like that of Macpherson; one which acknowledges that the whole needs to be tackled, rather than just its isolated constituent elements.
As I have said, one means to reform is to embrace the notion of professionalism. This is a subject in itself (what is it, indeed, to act and behave as a professional?) but one thing goes with the territory as much as ethics, honourable conduct and fair play: the idea of accuracy. Accuracy of information, accuracy of intent, accuracy of advice.
Accuracy, too, in the figures disseminated by insurers. Of late, they have been in the habit of saying that insurance premiums have risen between 30 and 40 per cent, because of ‘compensation culture’. They haven’t.  The true figure, according to an analysis of the Association of British Insurers own figures by the Access to Justice Action Group, is around 4.8 per cent for cars and motorcycles. If the figures for commercial and other vehicles are added, insurance costs actually fell by 3.3 per cent. Getting this right – dealing only in the true facts – would be a big step forward in the drive to resolve the problems in the personal injury marketplace.

Wednesday, 16 November 2011

Change is in the air, but could we do more?

Here’s a story that I only wish was apocryphal. Regrettably, it’s not. In fact, it’s the sort of conversation that we've probably all encountered, at some stage or another.

A group of lawyers from a personal injury firm were out for a drink. They had just attended a conference on the Jackson Review and the myriad of impending changes to civil litigation, not least in the fraught arena of costs. One might expect them to be rather preoccupied, given the impact the changes will bring on their livelihoods.

Not a bit of it. The group was sanguine to a man, ready to take on whatever came their way. It might have been possible to construe this as evidence of an admirable ability to adapt to change, to roll with the dice and serve the law and their clients come what may, were it not for what animated their equanimity. Which was, as one of them put it: ‘Who cares how the system changes? We’ll still find a way to make our money.’

Far-fetched? Sadly not. This is how some in the legal profession think. They’re not interested in their clients; all they care about is making as much money as possible. And they don’t mind if they bend the rules along the way.

This kind of lawyer is not confined to the personal injury sector, but arguably seems even worse when met in this environment. The idea, for example, of victim auctions – of lawyers bidding among themselves to secure the highest value personal injury cases, not because they care about the victim but because they see him or her as a cash cow – is not only anathema to right-thinking members of the profession but also unpalatable to anyone with a sense of morality.

What, though, can be done about this sort of thing? Yes, we need to continue to press the government to consider the full gamut of issues in, for example, its proposed (and welcome) ban on referral fees, and yes, we need to continue to press for legislative change where necessary. But I wonder if there’s more that we could do.

Perhaps it is time to reassert the professional standards and duties that come with the territory of being a legal practitioner. These seem to be too often ignored by those in the personal injury market.  Maybe if like-minded, honourable individuals who are committed to rooting out malpractice formed an alliance, we could do something about the blatant profiteering and corrupt practices that blight our industry?

If a campaigning body was established, it could set about achieving the following:
  • Deliver real market transparency – A significant portion of current industry practice deliberately confuses and dodges clarity. Consumers need to know the facts so that they can make decisions from a fully informed position.
  • Reign in blatant profiteering – There is a duty to avoid profiteering in every walk of life and this includes personal injury claims. Claims should not be seen as an opportunity to make money without any meaningful contribution being made to the service provided.
  • Stamp out conflicts of interest – Nothing must stand in the way of delivering in the interests of the client. Too much is currently done for the benefit of business and not the individual. This situation must cease.
  • Commissions should be returned – The current merry-go-round of commissions must stop. Any money paid by a referring party should be returned to the individual.
  • Ban referral fees in all their guises – Consumers should have a choice as to who they instruct. While a decision has been taken in principle to ban referral fees, we must campaign to ensure that legislation truly delivers its objective.

What do you think? Is there mileage in forming an alliance to tackle these challenges? Please post a comment here, or, if you prefer, send me your thoughts via e-mail at

Thursday, 10 November 2011

The insurance industry might not like it, but whiplash is a genuine condition

Whiplash is controversial. On the one hand, there is the injured person – the individual suffering varying degrees of neck pain, usually as a consequence of his or her car being shunted in the rear. On the other, there is the insurance industry. From its vantage point on high – a long, impact-free way from the scene of the accident – it tends to lament the number of whiplash claims made by British citizens. In fact, it doesn’t always just lament them: if it had its way, some parts of the insurance industry would prefer whiplash to be clinically diagnosed as a wholly fabricated condition for which no compensation is ever payable.

Certainly, there are examples that some whiplash claimants exaggerate the extent of their suffering. It is also undeniable that whiplash claims represent a high number of motor accident claims. But before we jump on the bandwagon which is being piloted by the Association of British Insurers (ABI) – members of which have  started using software privately dubbed as a ‘whiplash lie detector test’ to expose what it believes are almost always bogus claims – we should pause and consider the latest thinking on the nature of pain.

I recently attended a presentation to the Association of Personal Injury Lawyers (APIL) by Dr Jannie van der Merwe, a consultant clinical psychologist who specialises in cognitive-behavioural therapy. Dr van der Merwe’s talk, on emotional responses to pain, was fascinating. Among many interesting observations – not least, that the brain of a person with chronic pain shows functional, structural and molecular findings which suggest that pain can be understood as a disease state – Dr van der Merwe tackled whiplash. Insurers won’t like what he said: namely that whiplash, albeit that it may not be accompanied by physiological evidence, is a tangible condition.

This contention was illustrated by some remarkable case studies of people who either should have been in terrible pain (for example, a street performer from Pakistan who habitually put knives through parts of his body, exhibiting no discernible pain) or should not have experienced any pain at all. In the latter category, there was a man whose boot had been pierced by a six-inch nail. Unsurprisingly, he exhibited the kind of pain that one would expect, were a nail to be driven through one’s foot. However, upon examination it was revealed that the nail had missed his foot entirely, travelling through the boot and between his toes. Nevertheless, the man’s experience of pain was real, his symptoms identical to those that would be expected had the nail pierced his foot.

I believe that we need to be cognisant of cutting-edge psychological research such as that presented by Dr van der Merwe. His findings show that even if physically verifiable trauma does not accompany whiplash, it is no less debilitating for its sufferer.

Instead, then, of devising a system whose very title betrays the insurance industry’s attitude to whiplash (viz, its ‘lie detector test’), the ABI would do well to halt its bandwagon and enter into a genuine debate about whiplash. For those at the sharp end, knowing that those to whom they pay their premiums treat their pain and suffering seriously, rather than with contempt, would be a source of some comfort – if not an end to the pain they are unfortunate enough to experience.

Wednesday, 2 November 2011

Back to the drawing board, please, with the MoJ’s Referral Fee Impact Assessment

So, the Ministry of Justice (MoJ) has published an Impact Assessment on the Referral Fees ban. Good news, for surely things must be proceeding apace?

Well, yes and no. Yes, ever since September’s announcement by the MoJ that referral fees in personal injury cases are to be banned many people, including me, have been pleased and optimistic that a clearly dysfunctional system is at last going to be reformed. But no, because – and not for the first time – there are grounds for fearing that to embark upon reform in haste is to repent at leisure.

Why do I say this? Not, I assure you, because I just happen to like banging the drum of measured and sensible reform, as opposed to what is increasingly coming to resemble an ill-conceived cacophony of scattergun percussion. I urge caution because of the nature of this particular Impact Assessment.

First, though, a refresher. Impact Assessments are relatively new to the government’s lexicon, arising from a rationale which states that estimates of the costs and benefits of policy options under consideration should normally form an integral part of consultation exercises. As the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) is pushed through, with its provision banning the receipt and payment of referral fees, it is therefore government policy that an Impact Assessment be undertaken. Bear in mind that an Impact Assessments is:
  • a continuous process to help the policy-maker fully think through and understand the consequences of possible and actual Government interventions in the public, private and third sectors; and
  • a tool to enable the Government to weigh and present the relevant evidence on the positive and negative effects of such interventions, including by reviewing the impact of policies after they have been implemented.
That sounds sensible, you will agree. It is shame, then, that this particular Impact Assessment is so scant on detail. Remarkably, it contains nothing on the mechanics of the implementation of the ban, other than that it is planned for autumn 2012. Here is all that there is on the crucial question of just how the ban will be achieved:
  •  The reforms will be implemented through primary legislation. A provision in the Legal Aid, Sentencing and Punishment of Offenders Bill will be introduced to prohibit the payment and receipt of referral fees in personal injury cases. It is intended that the relevant regulators (the SRA, FSA, claims management regulator and others) will take the necessary steps to enforce the ban.
Indeed, the Impact Assessment expressly says that there is no data available for a ‘quantitative’ impact assessment. The data required for this is listed, but then described as unobtainable either because it cannot be tracked down, is unknown, commercially sensitive or not readily available. What’s more, a vast amount of the Impact Assessment is couched in conditional terms: look out for the frequency of the words ‘might’ and ‘may’ when it comes to the ramifications of the referral fee ban in practice.

One thing is said with clarity: that claimants could lose out as a result of the proposals.

To me, that alone should be enough to urge a rethink. We need to put the emphasis on helping people pursue genuine claims. Referral fees turn the industry into one in which money trumps merit, but how can it be right if, as a consequence of rushing through legislation, some people who have been seriously injured are unable to bring claims? The Government needs to remember the purpose of an Impact Assessment: to help the policy-maker fully think through and understand the consequences of legislation. Please, then, can we have some thought about how, exactly, to implement the ban?