Spare a thought for Theo - and Hillsborough's victims, too

Spare a thought for Theo Walcott. The charismatic and talented Arsenal winger didn't seem to be in too much pain when he fell to the turf in last Saturday's FA Cup third round fixture against Spurs, but the gloss of his team's 2-0 victory has been well and truly dented. Walcott, it transpires, has suffered the injury all footballers dread - a rupture of his anterior cruciate ligament.

None of us who witnessed Walcott's injury, whether at the Emirates or while watching the game on TV, can be said to have been traumatised by what we saw - not least because Walcott seemed in good spirits as he was carried off the pitch on a stretcher. But as we now learn that the on-form Arsenal star is almost certainly ruled out of the England squad for this summer's FIFA World Cup in Brazil, as well as side-lined for the rest of Arsenal's best season in years, only the hardest of heart would not feel sorry for him.

Walcott, included when 17 years old by Sven Goran Eriksson in the 2006 World Cup in Germany but not selected for a game, was omitted by Fabio Capello for his squad in the 2010 World Cup in South Africa. His terrible luck continues. Even if, miraculously, he recovers swiftly from the operation on his knee, it would surely be a mistake to take him to Brazil.

The effect of witnessing a traumatic event

Universally popular, at his club and in the England set-up, Walcott deserves and gets our sympathy. And if we play again, in our mind’s eye, the moment of his injury, it seems that bit worse. We see him wince with pain; we feel it that bit more acutely. As human beings, we empathise.

If this is what we feel, as spectators confronted by an injury which isn't as bad as, say, Eduardo Da Silva's horrific leg break, isn't it clear that witnessing disturbing events can lead to psychological harm - harm which may be even longer lasting than the physical damage sustained by those immediately affected?

To me, the answer is a resounding 'yes'. And because of this - and with the 25th anniversary of the Hillsborough disaster approaching, on 15 April this year - it is high time that the law on psychiatric injury is revisited.

Case law since Hillsborough does not square with reality

In the wake of Hillsborough case law evolved to a point which does not square with reality. The leading authority is Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. Here, Alcock and several other claimants were 'secondary victims': they were not primarily affected, in the sense that they were injured or in danger of injury, but they suffered harm because of what they witnessed. But instead of providing for compensation for their traumatic experiences, the Alcock case, which went all the way to the House of Lords' Judicial Committee, imposed a series of "control mechanisms" to fetter a victim's ability to bring a claim.

Chief among them is the requirement that a claimant must perceive a "shocking event" with his or her own senses, either as an eye-witness or happening upon its immediate aftermath. This means that if a father saw his son crushed via television footage, or if he arrived some 30 minutes after the incident, he would not be able to bring a claim.

Lord Steyn of Mostyn, in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 described the law on recovery for psychiatric harm as "a patchwork quilt of distinctions which are difficult to justify". The so-called 'control mechanisms' have also been described as "more or less arbitrary conditions which a plaintiff had to satisfy and which were intended to keep liability within what was regarded as acceptable bounds".

Lord Steyn was right. So, as we spare a thought for Theo Walcott, let's also think of Hillsborough's victims and, indeed, the unjust state of the law, that with which anyone tragically caught up in a disaster will be confronted. It's time to revise the law, it's time to unstitch the patchwork quilt, and it's time for parliament to legislate for change.

Three wishes for 2014 (and no more Masters…)

Happy New Year to all. Here's to prosperity, health and peace for all in 2014. Here's also to much-needed changes in the three following areas:

1. Women and the glass ceiling.

Sadly the glass ceiling is still there. I'm reminded it lurks, invisibly, in a great many sectors of society. Women work hard, perform brilliantly and every bit as well as, if not better than, men, only to find that access to the top positions is often denied. Whether through patriarchy, or chauvinism, or sexism; on occasion even through conspiracy. The fact is that women still don’t get a fair deal.

Take, for example, the law. Today's City firm in London will have a raft of corporate social responsibility (CSR) programmes and policies, implemented because the firm's partners recognise that they need to give something back.  And yet for all the CSR, for all the positive PR it yields, often those very same firms still have partnerships in which men vastly outnumber women.

It is the same in so many other sectors of the legal profession - which is why the news just before Christmas that women, for the first time in history, have been recommended for more judicial posts than men was so welcome. The Law Society Gazette reported the news, which comes from statistics released by the Judicial Appointments Commission.

​Women overtake men in judicial appointments - Law Society Gazette

It transpires that across 17 selection exercises for court and tribunal posts completed between April and September in 2013, 280 (52%) of those recommended for appointment were women, compared with 233 men (30 recommendees declined to identify their gender).

Yes, a judge should attain his or her role regardless of gender and solely on fitness for the job, but after centuries in which women have been explicitly or tacitly treated as second class citizens this news is good, and hopefully the trend will continue making equality a reality.

2. Hillsborough and the law on secondary liability.

As a football fan I thoroughly enjoyed the Boxing Day we've just had, when - for the first time in an age - every single league team in England was in action, along with all the teams from the Scottish Premier League. But amid the feast of football, I couldn't help but think ahead to this year's 25th anniversary of the Hillsborough disaster.

We all know the facts. At Sheffield Wednesday's historic ground on 15 April, 1989, 96 fans died in a terrible crush early on in an FA Cup Semi-Final between Liverpool and Nottingham Forest. The crush resulted in injuries to a further 766 people. Those involved ranged from children to the elderly. The tragic incident is Britain’s worst-ever stadium-related disaster.

But what we don’t all know is how the law has dealt with the disaster. It was, thanks to the ruling in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, a disaster of its own kind for what the law describes as ‘secondary victims’: those who were not primarily affected, in the sense that they were injured or in danger of injury, but who suffered harm because of what they witnessed.

Alcock severely restricts their ability to bring claims for post-traumatic stress disorder thanks to arbitrary 'control mechanisms' created by the court. Chief among them is the requirement that a claimant must perceive a 'shocking event' with his or her own senses, either as an eye-witness or happening upon its immediate aftermath. This means that if a father saw his son crushed via television footage, or if he arrived some 30 minutes after the incident, he would not be able to bring a claim.

The Alcock ruling and its criteria for recovery for psychiatric harm has been described "a patchwork quilt of distinctions which are difficult to justify". Set against what we now know to be the truth of Hillsborough, this is true. We need to revisit Alcock and campaign for a change in the law so that real justice is available for victims of psychiatric injury. APIL are planning to do just that and they need our every support.

3. The notion of justice.

Just before Christmas I wrote of War On Welfare's admirable success with its e-petition, which has now garnered enough signatures for force a parliamentary debate on a number of issues which affect the sick and disabled, not least the present government's seemingly obsessive desire to implement cuts in this area. WOW's work has been tireless and fantastic, and we must all do our bit to maintain its momentum, but so too should we continue to fight the systemic erosion of formerly sacred legal principles with which the government also seems to be engaged.

I am mindful in particular of the proposals to reduce the availability of judicial review and the apparently endless attack on what used to known simply as 'legal aid'.

What has happened to the notion of justice? Why is it now so rife with 'cost considerations'? What has happened to the days of absolute legal principles, with which no government - other than a dictatorship - would dare to tinker?

Three of my wishes for 2014, then, are for the end of the glass ceiling, due recognition of the rights of those who suffer psychiatric injury and a restitution of our fundamental commitment to justice. Oh, and while we're at it, how about a change to nomenclature in the courts - is the term 'master' really what we need for a judicial officer in the civil justice system, women included? Or is a remnant of the very sexism and unthinking patriarchy that preserves the glass ceiling?

The WOW factor makes for a good early Christmas present, but we must keep up the fight against the erosion of the welfare state

A year and a half ago I wrote about John Burns, a courageous man who, having suffered a terrible water sports accident, had been paralysed from the neck down. I was privileged to hear Mr Burns speak of his experience of spinal cord injury (SCI) at the AGM of the All Party Parliamentary Group on SCI in June, 2012.

The august surroundings (the AGM was held at Portcullis House in the House of Lords) only made Mr Burns' tale all the more poignant. After his accident, Mr Burns was forced, through lack of any alternative, to live in institutional care. Deprived of his family life, missing anniversary celebrations and seeing his sons grow up, he regarded this as a prison sentence.

We must oppose the war on welfare

Listening to Mr Burns was moving and inspirational in equal measure. On the one hand, everyone present admired his courage; on the other, we couldn't help but feel angry at the treatment of those with disability in this country. Time and again those who suffer an SCI are packed off into homes and forced either to use their savings or sell family assets to pay for their treatment. They're forced to live alone, away from their families and friends - despite having worked hard and paid their taxes, and despite Britain's longstanding and much admired commitment to welfare.

In fact, the present government has been engaged in a war on welfare for some time. If it had its way, the sick and those with disability would be even worse off, thanks to cuts proposed by the Department for Work and Pensions. Our cherished welfare state is under threat as never before.

But the year could be ending on a positive note - thanks to the WOW factor.

#WOWdebate2014 to stop the War on Welfare

WOW stands for the War on Welfare campaign. Its campaigners ask the government to carry out a Cumulative Impact Assessment to look at the overall effect of cuts to sick and disabled people, as well and their families and carers. They also ask that MPs are given a free vote on the repeal of the Welfare Reform Act. Other laudable campaign aims are to end the Work Capability Assessment, and the launch of an independent inquiry into issues including charges for care homes, ATOS, and the closure of Remploy factories.

Success for WOW

WOW launched an e-petition, supported and submitted by actress and award-winning comedian Francesca Martinez. In a piece of great news just before Christmas, the petition secured its target of 100,000 signatures with 12 days to spare before it closed. Celebrities including Stephen Fry, Russell Brand and Yoko Ono lent their support and helped garner the momentum for enough signatures to compel a parliamentary debate.

For Francesca Martinez, the key issue is clear cut. As she puts it: "The Government are using this recession as a cover for implementing cuts and eroding vital services that people fought long and hard for, and we need to get together and protect these crucial support networks."

I agree whole-heartedly. The government's hostility to the sick and disabled is a disgrace. Moreover, it's a human rights issue. We should all continue to support WOW - for example by writing to our local MPs. We must do our best to preserve what's good about our society - not stand by and let it be taken away.

We need better education and treatment in sport for concussion – and we need it now

For many years I enjoyed playing amateur football. I was never going to be good enough to emulate my heroes, the likes of Peter Osgood or Alan Hudson, but like so many enthusiastic players up and down the country I loved the game. And, again like so many grass roots players, I look back on a few moments from my playing days and shudder.

My retrospective misgivings aren't from memories of open goals missed (or own goals scored). These things happen; if anything, at amateur level they're to be laughed about in the pub afterwards.

No, my misgivings flow from remembering the times when a player suffered a head injury, usually from a clash of heads as two players competed to head the ball. One player would take a severe knock (sometimes both of them, in fact). He'd be on the turf for what seemed an age, only to stagger to his feet and insist that he was well enough to play on. This was almost always what happened. Only rarely did a player on the receiving end of a head injury leave the field of play. Time and again he'd wear his palpable concussion like a badge of honour, and keep going to the end of the game.

Concussion can be fatal

I look back on these incidents and shudder because I realise that collective ignorance – or, perhaps, machismo - had the effect of putting a sportsman's life at risk.

The fact is that concussion can be fatal. It can kill soon after the first signs manifest themselves, or it can kill later in life when the consequence of repeated trauma to the head turns into CTE - chronic traumatic encephalopathy. CTE was formerly known as dementia pugilistica - 'the boxer's disease' - but increasingly studies are revealing that is present in sportspeople from other sports, including American football and ice hockey.

And, as Andy Bull's excellent article in last Sunday's Observer reveals, rugby.  In modern rugby, the dangers of concussion have grown exponentially as the game has evolved, as Bull elegantly puts it, "from a contact sport to a collision sport." Concussion was always a danger in rugby (as it was in football) but today's players are better conditioned than those of yesteryear. Players are bigger, faster, stronger – and they hit a lot harder than they used to. Tackles are now "hits", and YouTube is full of  "greatest hits" from both rugby union and league. But to view, say, this collection of "hits" is not simply an exercise in admiring the bravery of the contemporary player. It is also to come away wholly endorsing the argument in Bull's article: that a sea-change is required in rugby so that players' lives and health are not unnecessarily risked by the modern game's relentless ferocity.

Bull has also written of the tragic story of 14-year-old Ben Robinson, who, on 29 January 2011, was treated on three occasions for blows to the head while playing rugby – and on each occasion sent back onto the pitch to play on. Ben later collapsed and died in hospital in a case of Second Impact Syndrome (SIS). SIS means that the brain swells swiftly and catastrophically after a person suffers a second concussion before symptoms from an earlier one have subsided. SIS is nearly always fatal; if it isn't, it leads to permanent serious disability.

Change has to come from the top

Arguably, today's rugby culture killed poor Ben Robinson, the culture of hitting hard and playing on. SIS certainly killed him. SIS could have caused terrible problems for Hugo Lloris, the Spurs goalkeeper allowed to play on against Everton in a November fixture, and it will continue to cause terrible problems for any number of sportspeople until we succeed in implementing a root and branch change to the way that we regard head injuries in sport.

Head injuries aren't a 'laugh'. It's not amusing to see a player wobble unsteadily, then regain his senses, then play on. It's not a tribute to his fortitude. It's foolhardy. The risks are too great, and, as Dr James Robson, the Scottish rugby union side's chief medical officer, says (in Bull's Observer piece): "When you get a subject as important as this [change] has to come from the top. To me that means the government. They are responsible for the nation's health and that is what we are talking about, the health of the nation's young people." 

Dr Robson is right. So come on, Mr Cameron, what have you got to say? If you could tear yourself away from taking selfies (and worrying about what happens to them) and tweeting about Nigella, perhaps you could endorse the calls for thorough education and treatment in sport for concussion. Those calls, to anyone with any sense, are irresistible. 

Mesothelioma: when a U-turn is a good turn

The term 'U-turn' has negative connotations in politics. It signifies a complete change in direction, an abrogation of policy so pronounced that Margaret Thatcher famously made capital out of its opposite. "The lady's not for turning," said Lady Thatcher, and ever since politicians from a variety of parties have seen this statement not as indicative of blind stubbornness but as a sign of strength.

But the received wisdom isn't always right. A U-turn can be a good turn. It can indicate due regard for the implications of policy and the acknowledgement that it hasn't been properly thought through. Which - thankfully - is exactly what's happened this week, with the government executing a U-turn when it comes to mesothelioma claims.

To recap, mesothelioma is a disease caused by exposure to asbestos, with a long delay between exposure and developing the disease (often 40 to 50 years). It is nearly always fatal, and some 2,200 people die of it each year in England and Wales. Over the years sufferers have faced a massive battle to obtain compensation, owing either to the difficulty of tracing employers or, indeed, insurers. Another statistic puts this is perspective: 50% of claims for compensation for mesothelioma take over 12 months to settle, which means that sufferers may die before their claims are paid out.

Delay equals injustice

For many years campaigners, notably the Association of Personal Injury Lawyers (APIL), have called for the government to establish a fund to make sure those left unable to claim can do so. The idea was that contributions from insurers would initiate and sustain the fund which would pay out in circumstances where the employer's insurer could not be traced.

In parallel insurers came up with the Mesothelioma Pre Action Protocol (MPAP) to replace the existing pre-action protocol for disease and illness (DPAP), which they sought to link with the introduction of the untraced insurers fund. The protocol seemed to the government like a good idea at first blush, a way of dedicating resources to mesothelioma sufferers. The government initially gave its endorsement. But the devil was in the detail. And the more people looked at the detail, the more it seemed that sufferers would receive less money - and have to wait longer for it. The insurers sought to stick to a position which linked the introduction of the fund with the introduction of the protocol.

MPAP: a hindrance not a help

Courts Minister Shailesh Vara

APIL played a large role in harnessing industry response to the proposed MPAP. It became abundantly clear that mesothelioma sufferers, far from being helped by the MPAP, would be hindered by it. And this week, Courts Minister Shailesh Vara showed that the government is capable of listening, announcing that the government would reject the insurers' proposals.

Moreover, in news made all the more welcome given that we are two weeks from Christmas, the government has declared its intention to work with victims' groups, insurers representing employers and others to explore new ways to improve the legal process for handling claims from victims of mesothelioma. In addition, proposals to set standardised payments for lawyers making claims will not, for now, be taken forward.

The £350m fund to compensate those unable trace the liable employer is being put in place by insurers and the Department for Work and Pensions through the Mesothelioma Bill, but the bottom line remains this: speed is of the essence. Sadly, claimants often have a limited life expectancy. Their claims need to be settled as quickly as possible, for their sake and that of their families. And so, as much as we should welcome this particular U-turn, let's hope it doesn't lead to a cul-de-sac, and that the best possible means of giving redress to mesothelioma claimants is put in place as soon as possible.