I move amendment No. 10:
In page 20, Second Schedule, Part I, third column, opposite "Postal and Telecommunications Services Act, 1983", to delete "and 52 (1)" and substitute ", 52 (1) and 88".
Under the section which this amendment seeks to repeal Telecom Éireann are exempt from the civil law in regard to any damage or loss caused by their failure to provide an adequate service. Obviously, for such a claim to succeed the consumer would have to be able to show that Telecom Éireann were negligent in causing the loss or damage. Therefore, removing the protection would not throw Telecom Éireann open to claims by consumers against them through their failure to provide services which genuinely were beyond their control but if Telecom Éireann had been negligent, or their servants acting under their direction had been negligent, and if as a result a consumer of the services provided by this statutory monopoly suffered a loss then the consumer should have the same access to the civil law for remedies and for damages as he would have if he had suffered a loss with some private, nonmonopoly supplier of services. Given that Telecom Éireann's monopoly in this area is protected by law, they have a greater, not a lesser, responsibility to provide a good service and remedies for those who suffer a loss because of their deficiencies arising from negligence.
In the case of a private enterprise provider of services, the consumer if he is not getting adequate satisfaction at least has the opportunity of going elsewhere and in the case of a private enterprise supplier there is perhaps a greater case for exempting the supplier from the full rigours of the Sale of Goods and Supply of Services Act. However where there is a statutory monopoly and the consumer has no options but to use the services provided by that statutory monopoly, there is a greater, not a lesser, case for ensuring that the consumer has full rights to claim against that statutory monopoly, Telecom Éireann in this case, for failing to provide a service through negligence, but only if that negligence can be demonstrated and if it causes actual loss.
Under section 88 of the Postal and Telecommunications Act any failure or delay in providing, operating or maintaining a telecommunications service which causes loss to a consumer cannot be the subject or the basis for an action for damages no matter how negligent Telecom Éireann were in failing to provide, operate or maintain a service and no matter how great the loss suffered by the consumer as a result. Likewise, if through negligence there is a failure, interruption, suspension or restriction of a telecommunications service which causes major loss to a consumer, he is not allowed to claim damages from Telecom Éireann because of section 88 of the legislation. Likewise if, by reason of section 88, a consumer suffers loss because through negligence Telecom Éireann make a false entry in a telephone directory containing information about that person's business, the private individual has no access to the civil law to claim damages against Telecom Éireann.
In all of those cases there should be the normal access to the civil law. We are not asking that any special or exceptional responsibilities be placed on Telecom Éireann just because they are a statutory monopoly. We are simply asking that they be subject to the same legislation in regard to being sued for negligent activities on their part as would any other corner shopkeeper or small business person. It is worth noting that section 88 (3) also exempts Telecom Éireann from the application of section 39 of the Sale of Goods and Supply of Services Act. That section states that anybody supplying a service in the course of business is presumed to have the ability to supply the service with due skill, care and diligence. If he is using materials — in the case of Telecom Éireann, telephone appliances — those materials should be sound and reasonably fit for the purpose for which they are required. That applies to any person providing a service in the private sector. I understand that it also applies to An Post and most State enterprises. They are open to be sued under section 39 if they fail to supply a service with due skill or with sound materials.
However, Telecom Éireann, as far as I can see alone amongst the State companies — I am open to correction on that; I checked in regard to CIE and An Post and I could not find a similar exemption for those companies but that is not the main point — cannot be sued. I do not see any reason why, if I can sue a small shopkeeper who is supplying me with a service if he does not exercise the necessary skill, if I can sue a barber who does not exercise the necessary skill and causes me an injury as a result of that failure, I should be prevented from suing Telecom Éireann if they fail to exercise the necessary skill in regard to any service they are providing.
Why should Telecom Éireann, just because they are a Government monopoly, be exempt from the ordinary law that applies to other people? I see no reason for that exemption. It is not because the taxpayer has poured insufficient resources into Telecom Éireann. There has been a vast investment of public funds in Telecom Éireann and that company have not provided the State with any dividend as yet on that huge investment. The company are not in a position to provide dividends or profits to the State which I understand An Post are in a position to provide although Telecom Éireann have absorbed huge quantities of capital.
Telephone charges here — this was referred to by the Minister when dealing with the generally negative cost environment here — are 50 per cent or 100 per cent higher than they are in most continental European countries. If Telecom Éireann were to say that they would have lower telephone charges than other countries if they were allowed to be exempt from the civil law because that would save them money, one could understand that as a fair deal. However, our telephone service is charging a higher price and enjoying privileges in regard to exemption from the normal civil law in regard to damages that other services fail to enjoy. I see no reason why that exemption should not be removed. I should like to tell the Minister that my party will be making formal proposals on that subject in the near future. Those proposals will have regard not just to this aspect of consumer protection concerning Telecom Éireann but also to other aspects. This is a matter that will be the subject of considerable public pressure from my party in the months ahead.
In my view, there is a compelling case for the Minister to accept one or other of our amendments. The first amendment seeks to remove all the exemptions from the normal civil law for negligence which Telecom Éireann presently enjoy. The second amendment seeks to deal with the question of directory entries, with which the Minister indicated in an aside there might be less of a problem. I accept that the Minister requires to consult with the Minister for Communications before accepting such amendments. I hope he has been able to do so and is now in a position to accept one or other of those amendments. If I had considered the matter as fully as I would have wished I would have also proposed an amendment to remove the exemption contained in section 88 (3) of the Postal and Telecommunications Act, 1983. That provision states that Section 39 shall not apply until the Minister for Trade, Commerce and Tourism by order provides that it shall apply. To my knowledge such an order has not been made. If the Minister could indicate that he intends to make an order applying the Sale of Goods and Supply of Services Act to Telecom Éireann in the near future, in the next three months, that would go a considerable distance in the direction my amendments are seeking to go. It would not remove all the problems because it would amount to a protection for people who are consumers. It would not provide any similar legal protection to trade customers of Telecom Éireann. It would be a step in the right direction and I hope the Minister can indicate that he is in a position to announce an order under that section in the reasonably near future.
