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Baroness Ashton of Upholland: Indeed, the courts can do that. One concern that I would have with the amendment, although I entirely accept the premise behind it, is that by codificationwhich is what the amendment would createwe would fix the law as it currently is, rather than recognising that it needs to develop. To go back to my original Clause 1 premise, we are not fixing things in time but enabling them to develop. So I would be concerned about that. But the courts can certainly take into account the factors that the noble Earl mentioned.
Lord Hunt of Wirral: I shall press the Minister a little further because this is an important debate. The Prime Minister, Mr Blair, and the Labour Party manifesto spoke clearly about the need to bear down on frivolous and vexatious claims. That is the issue before us. What are the Government going to do that will make it easier for local authorities, public bodies and voluntary organisations to bear down on frivolous and vexatious claims?
Baroness Ashton of Upholland: I cannot give the noble Lord the level of detail that I would like because my colleagues and I have not reached that point. We have started to pick up examples of where action taken in a particular way has had a dramatic effect to distil common concerns. For example, I am confident that the way that Knowsley council approached this
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identifying where claims were coming from, involving the police appropriately; and looking at how it was tackling concerns about housing repair and so onprovides common threads that we could suggest to all local authorities.
I am also keen that we start to develop new and different ways that government could support local government, although I do not have them yet. We could talk to colleagues in the Home Office about where the police could best be involved, if appropriate, and look at how the courts are beginning to take this issue seriouslyI can think of two prosecutions so far that I have been made aware of through the press, although there may be others. I may be at an earlier stage than the noble Lord would like me to be, but I am clear that we need to find practical ways in which public authorities, in particular, can use their resources to tackle the problem in their communities. That may mean enabling them to work alongside other organisations, to develop individual approaches, or to pick up on some of the broader questions about tackling this raised by the Knowsley experience.
That is a nebulous answer to a specific question. For me, this is about enabling us to tackle the problem by good example and practice and by using things that we know work, rather than by central government re-inventing the wheel and telling local government what it should do when there are good examples out there. That is what I should like to do in the next few months.
Lord Hunt of Wirral: In the next few months? That is very good news. I hope that if that the Minister and her colleagues felt that some provision could be included in the Bill, which will not complete its passage through Parliament for several months, that she would be willing to consider it. The long title of the Bill states that it is to,
So the provision is wide enough to allow the Minister to come forward later in the Bill's progress. Does she have an open mind about suggestions that could be made by people seeking to give effect to the Government's commitment to bear down on frivolous and vexatious claims?
Baroness Ashton of Upholland: I always have an open mind on these issues. In discussions with other bodies, I have seen nothing that suggests that I need to use legislation to achieve this. It appears to be much more about strong good practice and clarity of message saying that frivolous claims will not be paid out on, so do not bother. That has made the biggest impact in local government. Although I have an open mind, I have seen nothing heading in my direction to add in legislation that we could not probably achieve better outside.
Lord Hunt of Wirral: What I think that the Minister is saying is that if she were persuaded that it would be possible, she would consider it. I am pleased to see her nodding. Those who want the Bill to have greater
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strength in bearing down on frivolous and vexatious claims will welcome her open mind on how that is best done.
The amendment is intended to provoke a change in culture. It embodies the idea that an apology, an offer of rehabilitation, should not be treated as an admission of negligence. Arguably, that could lead to the biggest cultural change of all. In countless instances where something unpleasant has happened to someone, his or her main concerns are getting better quickly, receiving an appropriate apology and ensuring that the necessary lessons are learnt so that what happens to him or her will not happen to others. That is the antithesis of the compensation culture. The thinking behind the amendment also dovetails perfectly with the concept behind the NHS Redress Bill, as well as offering the opportunity to make serious progress on the important question of rehabilitation, which we all want.
An apology can be enormously important and significant to someone who has been injured, especially psychologically, but the present system scares people off from making an apology. There is a reluctance to apologise, for fear that an apology will be perceived as an implied acceptance of liabilitythat if someone has said sorry or words to that effect a claimant will subsequently be able to argue that such an apology amounted to an admission that can be relied on. First, I refer to the Better Regulation Task Force report of last year. At page 7, it states:
"An apology can go a long way. We need to move away from the situation where an apology is seen as an admittance of liability. In a survey commissioned by the Chief Medical Officer in 2002, 34 per cent of respondents who have been affected by medical injury wanted an apology or an explanation".
The Minister will probably say, "I agree, but I do not agree to the amendment". Why do we need the amendment? Despite what the noble Lord, the Lord Chairman, may from time to time say to me about my overindulgence in decided cases, there is a number of such cases. In Mary Ann Slack v Rotherham General Hospital NHS Trust, the claimant tried to use in evidence the fact that she said that the defendant's
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employee had said sorry. Citing the case on 9 October, the statement made on the half of the claimant concludes:
This is not just a whimsical point. In some cases, a claimant to whom an apology has been made can cite that as another substantive illustration of how they have been badly treated, which can exacerbate a claim. In the Sheldon case, the claimant's psychiatric illness had been misdiagnosed, it was alleged, by the defendant, but it was made clear that her recovery had been delayed by the absence of an apology.
Lord Greenway: My name is attached to the amendment, but I come to it from a slightly different tack than my noble friend Lord Hunt. To make an apology is the perfectly normal, gentlemanly and natural thing to do on the spur of the moment. If one reacts with that speed, that should not later be taken as an admission of negligence.
I return to yachting. Even when you are with friends and you know a crew well and an accident happens, you can say sorry. Often, things are happening so fast that you have time to do nothing else and things carry on. I cite another case, Richards v Wanstall, on 10 April 1995, where the owner of a small, 20 foot racing yacht was sued by one of the experienced crew members after leaving the marina. The skipper realised that the yacht had been caught by a gust of wind and could have hit a yacht moored nearby and asked an experienced adult crew member to run forward with a fender. The crew member stumbled going forward and, three months later, successfully sued the skipper for damages, claiming that he had injured his leg. After a five-day trial, the court found the skipper liable on the grounds that a reasonably careful skipper should have pre-briefed the crew on that manoeuvre and had a crew member pre-placed.
I can tell the Committee that things do not work like that in sailing. Racing yachtsit was a racing yachtgo in and out of marinas all the time. In my opinion, an experienced crew would not need asking by the skipper; they would see what was happening and automatically run to do it themselves. Needless to say, that has caused great consternation in the yachting fraternity. Yachting is a rough and tumble sport. Indeed, a friend of mine has just had half of his jaw replaced, but it was his own yacht so he could not sue anyone. The record of the case does not state whether
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the skipper said sorry at the time. I often wonder whether, if he had said sorry, the five-day trial might have found the skipper negligent after only one or two days. The Bill should state that an apology or an offer of treatment is not necessarily an admission of negligence.
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