With the object behind Deputy McQuillan's amendment I am of course in complete agreement and I agree to his amendment and mine being considered together because I think that, fundamentally, they are aimed at the same purpose. As the section stands at the moment and as the general law is not altogether, but to some extent, being administered in various courts by judges and juries throughout the country, the position is, and it has to be faced, that a person who is guilty of a civil wrong against another person and, under the law, is bound to pay damages to him, is being subsidised by the ratepayers and taxpayers of this country. That is the fundamental issue that has to be faced.
I do not understand the purpose behind this section at all. I had some difficulty in relation to the original section in the Act of 1933. I would like to know if that section has ever been operated to any extent at all. In my experience it has not. It was put into the Act, as I understand it, because of the position that existed at that time about voluntary hospitals and also hospitals then established in the nature of health institutions—as they are now called—otherwise, places where poor people had to go, and there was some reason why they were entitled to a certain amount of money. The fundamental position is as I stated at the beginning.
Let us get down to the actual principles of this matter. This section as it stands at the moment proposes that where a person has been injured by another, has suffered damage and is treated in a hospital other than a health institution, then that hospital is entitled to recovery of a certain figure for treatment and medical and surgical expenses, I presume. I emphasise "a certain figure" as it seems to me that the section as it stands limits the right to recover the full amount of the cost of hospital treatment, maintenance in the hospital and medical expenses in general.
The general law is that if a person injures another through his own fault, which is the situation envisaged in this section, that person has to pay damages. These damages include what are known technically as ‘special damages.' Special damages include in particular the cost of maintenance in hospital whether it be a public hospital or a nursing home. They include reasonable expenses for physicians, surgeons, physiotherapists, nursing attendance, and medicines. That is all given as a matter of course. It is no thanks to the defendant to have to pay this as juries are frequently reminded. This merely indemnifles him against his costs and the expenses which he has actually to pay. The only check on that is that the jury is bound and entitled to give only reasonable expenses. In other words a person cannot go wild and spend any amount of money because there is the safeguard that a jury of twelve reasonable men are bound to allow only reasonable expenses. That is the position as it stands. This section cuts into the administration of the Health Acts, and the administration of the law relating to insurance companies, whom the law makes liable for the payment of these moneys, under the Health Acts. I hope I am putting this thing as clearly as possible to people who perhaps do not understand the significance of it as it works out in the courts. In every case that comes before the courts, there is wrangling about this before the case comes into court. What are known to our profession as notices of petition are served by the defendant—otherwise, by the insurance companies: Is the plaintiff entitled to the benefits of the Health Acts and, if so, what is his position? They then proceed to plead that he is not so entitled, that the defendant is not bound to pay the surgeon, the specialists and the physiotherapists who looked after him or the hospital which provided his food. They are getting out of their liability to the plaintiff by this means and who is to pay? The taxpayer and the ratepayer combined must pay. I say it is quite unjust and wrong that that should be the position.
I went into this matter very fully on the Second Reading of the Bill because I felt so strongly about it that I wanted to give the Minister as much time as possible to consider the matter which the Deputy thinks is causing great disturbance in the administration of the courts in relation to these negligence actions, actions arising out of breaches of duty, and other matters of that kind. Look at the position. The common law is that a wrong-doer now in fact, in these negligence cases, in running-down cases, is the insurance company. The law is founded on justice—that they are bound because of this wrong-doing to defend the wrong-doer against reasonable expenses that he has incurred. If a person is injured by another, he is not alone entitled but he is bound to take reasonable steps to become well as quickly as he can. He is bound to get the appropriate expert surgical and medical attention. That is not a question of a luxury; it is a question of a liability on him under the general law on damages. The person is bound to minimise his own damages. I have reason to believe that I have judicial support for the statement I am making, that it is both of benefit to the injured party and to the insurance company that the injured party should get the best surgical and medical attention, the best possible treatment, to enable him get better quickly. He is bound to get the best surgical and medical attention.
What happens in these negligence cases is that a person is injured; he is on the roadside, either unconscious or so seriously ill that he is not able to take into account the fact that he is entitled to go to the best nursing home or get the best medical attention. Because he is unconscious, because he is lying on the roadside, because of the accident and the wrong that has been committed against him, he is brought to some public health authority hospital. He is brought there, not knowing where he is being brought. He is put there and he is bound to stay there.
If he had sufficient sense or if there was a lawyer at his elbow, he would, when the ambulance came along, tell the ambulance men to go to St. Vincent's Nursing Home or, say, the Bon Secours Hospital in Cork. What happens? He is brought to the first hospital, which is usually the county hospital, but if he had the sense he might have said: "I want to go into hospital as a private patient." Dealing with the question of reasonableness because he is unconscious, because he is suffering from so much pain he does not know where to get relief but he is brought into a county hospital. Then the insurance company say that because it was an accident he was brought there. That institution is subsidised by the taxpayer and the ratepayer. Surely there is no justice in that? Why should an insurance company be subsidised by the taxpayer or the ratepayer? Why should the county surgeon, the nurses and the physiotherapists have to give their services to this person, in effect, free, while if he had been brought to a private hospital, the surgeons, the doctors, the physiotherapists and the nurses would get their reasonable fees settled by a jury? I see no justice— rather do I see great injustice—in all this—injustice to the injured person and injustice to the taxpayer and the ratepayer.
I want to emphasise that when I am asking for this rule to be changed, so far as it is a rule of practical law, I am doing so because the injured person is not getting benefit out of it or the best surgical, medical and hospital treatment he should get. He is getting no benefit out of it. He is getting general damages for pain and suffering. It is ridiculous and unjust that because a person happens to be unconscious on the road, he is brought to the local authority hospital while, if he had his full senses, he could go to a surgeon in a private hospital, or a nursing home. Because he is unconscious, he is brought to a county hospital and this section comes into operation.
May I put just another consideration from the point of view of the public interest? These accidents on the road have become very frequent and the time and attention required to be given by county surgeons, nurses and other people in these institutions are becoming more and more demanding. Because of these accidents and the results of these accidents, because of the wrong-doer, the county surgeon has at any time this sort of emergency facing him. The county surgeon, to the detriment of the other patients in the hospital, has to give his entire time and attention to treating accident cases. Where is the justification for that? Does it not work unfairly against the other patients who are entitled to get free treatment in the hospital, who are entitled to get the full time of county physicians, nurses and other necessary experts? Their time and attention are being taken away from people who are being deprived of them in order that the person who has been injured by the wrongdoing of another person may be dealt with. How can it be justifiable in those circumstances to say that the insurance company must be indemnified and, at least, subsidised by the ratepayer and taxpayer? The thing is beyond all reason and I cannot understand why it has been allowed to go on so long.
It has gone on so long because no one, when the Act was going through, ever envisaged a situation of the kind arising, but when the matter becomes one of practical importance, of course the insurance company sees the point and says: "When the law gives you a right, if you are a person of means, to free treatment, although we injured you wrongly and although we insured the person who wrongly injured you, you must get your money from the taxpayer and the ratepayer." Where is the justice in all that?
My amendment proposes to insert a new section in the Bill which deals with the situation I have described. Deputy McQuillan has been placing health institutions on the same level as ordinary hospitals. I think the section itself is of little use. The plaintiff is entitled to recover damages, to recover his hospital and medical expenses; he is bound to pay these to the hospital. Why the hospital itself should then have the particular power that is put into the Bill, I cannot say, but if it is necessary, let it be for all and let it be perfectly clear that the insurance companies are not going to be subsidised by the taxpayer and ratepayer.
I want to emphasise that a man who is injured by a wrong-doer, which is the case envisaged in this section, is entitled to get the expenses he is put to for medical, hospital and other expenses. He is bound to get the best of medical attention in order to minimise his damages. He gets these expenses from the judge and jury or from a judge without a jury. The hospital then gets what it is entitled to get for treatment and maintenance of that person and other services given to him.
That is the logical and legal position as it stands, irrespective of these Acts. I think that when the matter has been brought to the attention of this House, it should right what is really a grave injustice to the ratepayers and incidentally to those people who are entitled to free treatment or partially free treatment in health institutions. It should also set right the position in relation to doctors and surgeons who are giving their services to these classes of people at the expense of other classes of people and who give their services free, gratis and for nothing.