(Dublin Central) asked the Minister for Justice if he considers the compensation awarded to the widow and children (name supplied) of a man killed in the bomb explosion in Parnell Street, Dublin to be adequate; and if he will make a statement on the matter.
Ceisteanna—Questions. Oral Answers. - Bomb Death Compensation.
41.
As this is the first parliamentary question that has been put down in relation to the amount of compensation awarded by the Criminal Injuries Compensation Tribunal since its establishment last year, it may be of assistance to the House if I give a few general observations about the tribunal's functions and the scheme under which it operates.
Subject to certain qualifications that are set out in the scheme, the compensation that is provided for under the scheme is compensation on the basis of damages awarded under the Civil Liability Acts, in respect of death or injury as the case may be. The tribunal consists of barristers and solicitors nominated by the Bar Council and the Incorporated Law Society respectively, each of whom has had long experience in dealing with claims for damages involving the Civil Liability Acts. It is assisted in coming to a decision on cases before it by the knowledge and experience its members possess of the awards made by juries in civil cases and it can be taken that it is guided by that knowledge and experience.
In these circumstances, it will be seen that it is an essential part of the scheme that the tribunal should be, as in fact it is, entirely independent in the discharge of its functions. In a reply to another question on 20th February, I mentioned that, in a case where an award is made either by an authorised officer or by a single member of the tribunal, it can be the subject of an appeal within the tribunal as provided for in paragraph 25 of the scheme. Apart from that provision, there is no appeal save perhaps in so far as the activities of any tribunal may be subject to review on legal grounds by the High Court. The composition of the tribunal ensures that any group of three of its members who give a final decision in a case will be able to come to an informed and reasonable conclusion as to how a jury would be likely to assess damages in a given case.
It would, accordingly, be inappropriate for me to ask the tribunal to justify to me its decision in any individual case or for me to seek information about or to comment on any such decision. It follows that I cannot comment on the particular case referred to in the question. In general terms, however, I may say that there appears to be some misunderstanding as to what exactly is intended to be compensated for by an award made by the tribunal, or indeed an award by the courts under the Civil Liability Acts. No award could ever, of course, fully compensate for the loss and suffering that attend family bereavements or personal injuries in such cases. The loss which is taken into account in the award of damages in fatal cases is financial loss, subject to the qualification that provision is made in the Civil Liability Acts for an award not exceeding £1,000 in respect of mental distress. Financial loss in such cases is normally arrived at on the basis of an actuarial calculation. In non-fatal cases account can be taken of pain and suffering.
There is one other important point which may not be generally appreciated. I have already mentioned that while, in general, compensation under the scheme is on the basis of damages under the Civil Liability Acts, that general statement is subject of certain qualifications. One of the qualifications is that, under paragraph 15 of the scheme, account is taken of social welfare benefits which may become payable as a result of death or injury. Accordingly, if, arising from the death of a married man, his wife becomes entitled to a widow's pension from the Department of Social Welfare, that would be taken into account by the tribunal in assessing the compensation to be paid under the scheme.
Finally, may I invite attention to paragraph 19 of the scheme which provides that the tribunal will submit annually to the Minister for Justice a full report on the operation of the scheme, together with its accounts, and that the report and accounts will be laid before both Houses of the Oireachtas?
(Dublin Central): This is a case of a woman with five children, aged from two to nine years, and the total compensation awarded was £7,000—£5,500 for the widow and £300 for each child. Does the Minister think that in this day and age an award of £300 to a child is sufficient?
As I have indicated, it would not be possible for me to comment on the award made by the tribunal in any particular case because the tribunal is independent in its operations. May I refer again to a point which I made in the reply and it is something which causes people to take a wrong view of damages? It concerns the measure of damages in a fatal case. The measure of damages in a fatal case is the amount of the financial loss which is suffered by the family. The law in the courts and, of course, in this tribunal which followed the general principle adopted in the courts, does not permit compensation to be paid for what I might call the loneliness or the tragedy of a bereavement in a fatal case. The only damages awarded, subject to £1,000 for mental distress——
Which I brought in.
Subject to that the measure of damages is the actual financial loss which in nearly all cases can be actuarial calculated. I have no doubt that in the case in question, without knowing the details of it but having regard to the general principles that are applied in awarding damages in fatal cases and having regard to the experience of the persons on this tribunal and taking into account too that they were constrained by the terms of the scheme to take credit on behalf of the State for moneys being paid under the Social Welfare Acts, that any award made would be an apt award having regard to the circumstances of the individual case. I want to emphasise that I am not saying that this award is or is not adequate. That is a matter for the tribunal. It is independent in its operations. No award will compensate for the tragedy of a bereavement.
Would the Minister agree that in every one of these cases the full amount of the consolation damages, the £1,000 which is available in civil liability cases, should automatically be included because of the nature of the occurrence.
It is a matter for the tribunal whether it falls to be awarded in every case. Experience in the courts has shown that it is only in a rare case that it is not fully awarded. I have no reason to believe that the tribunal would follow any other practice.
I should like to make it clear that I have a case, of which the Minister is aware, which is even worse in its terms than the one mentioned by Deputy Fitzpatrick.
I am not aware of the case.
I would have thought the Minister was.
If it is before the tribunal it would not come to me.
I want to ask the Minister to elaborate a little on this question of appeal. I asked him a question recently about this and he gave me a more or less categorical assurance that there was no appeal of any sort. Am I now correct in assuming that, if an award is made by an officer or an individual member of the tribunal, it can be appealed to the full tribunal and that, even then, there can be an appeal to the courts? Would the Minister care to elaborate on the nature of the appeal that can be made to the courts? Is it purely on whether or not the case is admissible at all, or whether the actual amount awarded can be appealed to the courts? Would the Minister accept from Deputies on this side of the House, and from Deputy Fitzpatrick and myself at least, and I think others, that there is very considerable dismay at the inadequacy of the awards being made? I admit that the Minister handed the job over to the tribunal. So far as he was concerned the procedure he adopted seemed sensible but, if this is a sample of what practising barristers and solicitors think is fair compensation in these cases, we must be all very glad that there are juries in civil liability cases and not barristers and solicitors.
The Deputy has raised a number of points and I will deal with them in the order in which he raised them. The first point is that there is no appeal from the tribunal as such, except in so far as appeal would lie on a point of law from any tribunal. Offhand, I cannot conceive what such a point of law would be but it certainly would not be on the question of the measure of the damages. That would be a question of fact and no appeal would lie there.
On the amount?
It would be very rare that there would be an appeal on a point of law. To all intents and purposes there is no appeal from the tribunal. As a matter of fact, there is no appeal from the tribunal on the amount or the measure of damages. Within the tribunal there is provision in the scheme for claims of up to £250 to be taken by a duly authorised officer. An appeal lies within the tribunal in those small cases. If the applicant is dissatisfied with the finding of the authorised officer, he can appeal to the tribunal. Likewise, there is provision within the scheme for cases to be heard by a single member of the tribunal. Again, there is provision for appeal from the finding of a single member to the full tribunal, that single member being disqualified, of course, from hearing the appeal. In that sense, there is a very limited appeal system within the tribunal. Any serious cases are heard ab initio by the full tribunal. So, to all intents and purposes, there is no appeal. To suggest that the award in a particular case is inadequate is dangerous, to my mind.
(Dublin Central): The Minister should talk to the widow.
I have already explained to the Deputy, but apparently he does not take the point, that calculations of damages in fatal cases can be made to the nearest penny because they are made on an actuarial basis. The law does not permit compensation for the tragedy of the bereavement. All the law permits in this tribunal, or in the courts, is compensation for actual financial loss. This can be established mathematically. I have no reason to believe that this tribunal, any more than the courts, establish it otherwise than mathematically. The amount which may come out at the end of that mathematical calculation may seem to an outside observer, and more especially to the applicant, to be totally inadequate. This, I might say, is common experience lawyers have with clients going before juries in fatal cases in the civil courts. There is often great disappointment at the seeming inadequacy of the award in fatal cases.
People cannot accept that the award in a fatal case may be less than an award in an non-fatal case. It very often is for the reason that nothing other than the sum of £1,000 can be built into the award for pain and suffering. It is important that that misunderstanding should be cleared up. Otherwise there will be a lot of dissatisfaction with the working of this tribunal. It can only award damages in fatal cases on the basis of a mathematical calculation. It is also constrained to give the State credit— and this is an ex gratia State scheme— for what the State may be paying via the Department of Social Welfare to the bereaved person.
Both Deputy Fitzpatrick and I are very grateful for the comprehensive way in which the Minister is answering our points. We have a better appreciation now of the working of this tribunal than we had. The fact remains that there is dismay as to the inadequacy of the amounts being awarded by this tribunal. I would ask the Minister to accept that, granted that it is restricted to actuarial calculations, it seems to be operating a basis of actuarial calculations different from those operated by the courts in similar types of cases. Would the Minister at this stage personally review that scheme and, if the tribunal is limited by the scheme to awarding what appears to normal and reasonable people to be totally inadequate amounts, would he consider revising the scheme?
In the case I have in mind if you were to deduct a full £1,000 for mental distress there would be practically nothing left. In the case I have in mind it would seem to me that the full £1,000 should have been awarded. Would the Minister be prepared to review the workings of the scheme particularly in view of the fact that there is no appeal from the decision of the tribunal? Finally, would he accept it as a reasonable principle that, in the case of a widow and family, the compensation should be at such a level that they would be placed in roughly the same position as they would have been in if the husband had remained alive?
That is the basis on which the compensation is awarded because it is on that basis that the actuarial calculations are made.
There is something wrong.
To suggest that the tribunal is applying different actuarial criteria does not lie, because the science of the actuary is an exact science. One basis may be put into the calculation by the applicant and a contrary basis put in by the tribunal on the grounds that one basis is exaggerated. This happens constantly even in fatal cases before the courts. A compromise position is adopted which seems fair and reasonable in the circumstances of the particular case.
With regard to a review of the workings of the tribunal, I indicated when introducing this matter to the House that they would be reviewed. As I indicated at the end of my reply, there will be an annual report to me with the tribunals accounts and a report on its operations to see what teething troubles have been disclosed. I want to emphasise—and this is important, because otherwise the public may lose confidence in the tribunal— that its basis for awarding damages is exactly the same, and it applies the same expertise and the same experience, and uses the same techniques as are used in the courts. To suggest that because there is no appeal the tribunal is somehow inferior does it an injustice. It is very rare in my experience to have an appeal against jury damages on the grounds that they are too low. Occasionally insurance companies appeal against jury awards on the grounds that they are too high and sometimes the superior court will reduce them. That is not a jury reducing them; it is a judicial tribunal.
Question No. 42.
May I finish the point? There is no guarantee that an appeal, even if there were an appellant area, would change or alter the original award.
One final question.
This is a debate.
(Dublin Central): It is a very important matter.
We are having a debate rather than questions.
In these days of open Government, would the Minister be prepared to make available to a Deputy, or to the applicant, the basis on which the calculations are made and the basis on which the amount is decided?
Not from the tribunal's sources, because the tribunal is independent and it should be left to be independent in its operations and free from having me peering over the members' shoulders, but there is no reason why the parties to this application would not make available to Deputies the papers they produce before the tribunal which would contain this information.
But would the tribunal be prepared to disclose to the applicants the basis on which it calculated the compensation? Surely that would be reasonable?
I am sure that would be part of the normal proceedings before the tribunal.
(Dublin Central): The Minister appoints the tribunal and it is composed of all legal men.
Yes.
(Dublin Central): Would the Minister agree that a social worker should be appointed to the tribunal who could really inquire into the background of the family and the mental strain they endure at this time?
I thought I had made the point sufficiently clear that the matters the Deputies are now raising, the mental distress and the tragedy, are not matters that can be compensated for either before this tribunal or the civil courts.
(Dublin Central): Has she any other court to which she can go?
No.
This question has been debated at length. Question No. 42.