Joint Committee on Enterprise, Trade and Employment debate -
Wednesday, 30 Mar 2022

General Scheme of the Personal Injuries Resolution Board Bill 2022: Discussion

Chairman

I will begin with a few notes on public health arrangements. The proceedings of our Oireachtas committees will be conducted without the requirement for social distancing, with normal capacity in the committee rooms restored. However, committees are encouraged to take a gradual approach to this change. Members and witnesses have the opportunity to attend meetings in the relevant committee room or online via Microsoft Teams. All those attending in the committee room and environs should continue to wear masks, preferably of medical grade, over the mouth and nose. They should continue to sanitise and wash their hands properly and often and to avail of sanitisers outside and inside the committee rooms, be respectful of other people's physical space and practise good respiratory etiquette. If they have any Covid symptoms, no matter how mild, they should not attend the meeting. Members and all in attendance are asked to exercise personal responsibility in protecting themselves and others from the risk of contracting Covid-19. Members, as they are aware, participating remotely must do so from within the Leinster House complex.. No apologies have been received.

Today we will discuss the general scheme of the personal injuries resolution board Bill 2022, which was recently referred to the committee for pre-legislative scrutiny by the Minister of State with responsibility for trade promotion, digital and company regulation, Deputy Robert Troy. The Bill aims to amend the Personal Injuries Assessment Board Acts 2003 to 2019 to increase the number of personal injury claims settled through the Personal Injuries Assessment Board, PIAB, and to avoid the expense and time associated with litigation. Due to the proposed expansion of the board's new remit and statutory functions to be conferred on it to resolve personal injury claims, the general scheme also provides for changing the name to the personal injuries resolution board. Subject to the views of members I anticipate the committee may need to consult more interested parties on this matter ahead of preparing a report on the matter. I am pleased we are able to consider the matter today and I welcome officials from the Department of Enterprise, Trade and Employment. I welcome Mr. John Newham, assistant secretary in the commerce, competition and consumer division, Mr. John Maher, principal officer in the company law enforcement and personal injuries policy unit and Ms Anne Barrett, assistant principal officer in the company law enforcement and personal injuries policy unit.

Before we start, I want to explain some limitations to parliamentary privilege and the practice of the Houses in respect of reference witnesses may make to other persons in their evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected pursuant to both the Constitution and statute by absolute privilege. Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of a person or entity. Therefore, if witnesses' statements are potentially defamatory in respect of an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative they comply with any such direction I may give.

The opening statement of the Department has been circulated to all members. To commence our consideration of this matter, I invite Mr. John Newham to make his opening remarks.

Mr. John Newham

I thank the Chair and the committee for the opportunity to discuss the general scheme of the personal injuries resolution board Bill 2022. It is good to see the committee members in the flesh. My colleagues and I welcome the opportunity to contribute to the committee’s scrutiny of the scheme and to assist in any way we can. The general scheme progresses commitments in the programme for Government and the action plan for insurance reform to enhance and reform PIAB.

Under the Personal Injuries Assessment Board Acts 2003 to 2019, the board assesses claims for compensation arising from personal injuries following road traffic, workplace, or public liability accidents. The board is not a court. It does not make judgment on the issue of liability but assesses claims with reference to the personal injuries guidelines. The board provides a service which assesses claims in a timely and cost-effective way.

There were approximately 21,000 applications for assessment in 2021. Successive reports on the national claims information database by the Central Bank highlight the savings in both cost and time of settling through the board. The most recent report published in November 2021 finds that average legal costs associated with settling motor claims through litigation were €16,064 compared to average legal costs under the board of only €841. The time taken to resolve claims through litigation is on average 4.2 years while claims settled through the board average 2.3 years.

The policy objective of the general scheme is to amend the legislation to facilitate an increase in the number of personal injury claims that may be resolved through the board. Encouraging greater use of PIAB will deliver cost savings in the personal injury claims environment and together with the implementation of the action plan for insurance reform will contribute to reductions in insurance premiums.

The general scheme consists of seven chapters and 27 heads of Bill. Given the time limitation, I will summarise the key heads. Chapter 1 provides standard provisions for the short Title of the Bill, commencement, and interpretation. Chapter 2 provides that claimants provide their PPSN to the board when making an application. This is intended to assist the prevention of fraud and identity theft and ensure accuracy in relation to payment.

Chapter 3 provides for mediation, which will be a new function for the board. Mediation facilitated by the board will be a confidential and voluntary process between parties. It is intended to facilitate an increase in the number of claims which can be settled without recourse to litigation, which is more expensive and takes longer. Mediation has been used by the Residential Tenancies Board, the Workplace Relations Commission and the Financial Services and Pensions Ombudsman as a way for parties to come to an agreed resolution. The heads are modelled on existing legislation in respect of these bodies.

An agreement reached in mediation is binding on the parties. Where both parties agree, the board will issue an order to pay and this will have the same standing as if it were a judgment of court, with the result that the personal injury claim is settled. It is not open to either party to reopen the personal injury claim following a successful mediation. Any failure to fulfil the order to pay can be pursued as a debt recovery case. Mediation will not affect the timeline for the assessment of a claim. The board will still be obliged to assess claims within nine months of the respondent's consent to assessment.

Chapter 4 contains amendments to some discretionary powers provided in section 17 of the Personal Injuries Assessment Board Act. Heads 15 and 16 will allow the board to assess injuries of a psychological nature and to retain cases where, based on the medical evidence, the prognosis cannot be determined within the statutory timelines. The board has indicated these amendments could facilitate a 15% to 20% increase in the number of claims resolved through the board.

Chapter 5 deals with fee-making powers. The board is funded through fees for its services, largely levied on insurance companies. As the chief executive is accountable to the Committee of Public Accounts, it is considered appropriate that the board be empowered to propose and impose fees, albeit with the consent of the Minister.

Heads 20 and 21 set out that the board may apply an additional charge on a respondent who does not pay the respondent fee and for recovery of late payments. These heads are intended to encourage compliance with the Act.

Chapter 6 and head 22 amend the Act to provide that where a respondent accepts the board's assessment but a claimant rejects it and the case proceeds to court and the court's award does not exceed the board's assessment, then the court will hold the claimant liable for the respondent's costs. It provides that this will be the default position unless the court determines that holding this position would result in an injustice. This is intended to enhance the board's principal function, which is to assess personal injury claims without the need for litigation and its associated costs.

Chapter 7 proposes a number of new functions for the board. It enables the board to collect and publish information relating to personal injury claims, including information under the personal injuries guidelines. It also enables the board to conduct and commission research and to raise awareness and communicate the benefits of its services.

Head 27 provides that the board may disclose information to any member of the Garda Síochána if that information may relate to the commission of an offence other than an offence under the Act.

Finally, as the general scheme proposes to place an increased emphasis on the resolution of claims through an amended personal injuries framework which includes mediation, it is proposed to rename the board as the Personal Injuries Resolution Board. My colleagues and I are happy to discuss the scheme in more detail with the committee.

Chairman

I thank Mr. Newham and invite the members to commence discussion with the Department officials. I remind members who are participating remotely to use the raise hand function in Teams and members here in the committee room may indicate to me. I call Deputy O'Reilly.

Deputy Louise O'Reilly

I thank the witnesses for coming in. I agree with the Chairman that it is much better to meet in person than remotely now that we have the chance.

On head 4 and the data protection impact assessment, will people need upskilling to handle the data? Is it envisaged that it will be pretty much in line with what is done at the moment? Will there be a change in the type or increase in the amount of data that will be handled? If so, will additional supports and resources be required to make sure the board has the necessary skills? This work is a highly complex area. Do the skills already exist? Will the Department need additional skills? Will it need to upskill its personnel? If so, has that been factored into future work plans?

Mr. John Newham

That is an internal matter for the board, but the answer is an obvious yes. They will need to ensure they have the skills and awareness around this area and, indeed, further areas. There is mediation as well. There is going to have to be planning.

Deputy Louise O'Reilly

There are going to be resource implications. I am just trying to get a handle on what resources exist currently. Will they be beefed up or is it the intention to buy in some of that expertise? Perhaps we can tease that out. Anything to do with data protection is extremely important in every area, but especially in this area. Data protection will be absolutely essential in this area and it is important the necessary skills would be in place. I would prefer if the skills were not brought in on a temporary basis or outsourced in some way, shape or form but that, given the sensitive nature of data protection, they would be very much in-house, which obviously will probably require a high level of upskilling for personnel if those skills are not available or if they exist but need to be enhanced.

On head 8, it has been stated, "Over 30% of claims enter expensive and lengthy litigation, not only affecting the individuals but the overall insurance environment." Will Mr. Newham talk me through the impact on the overall insurance environment and the difficulties caused by this lengthy litigation? What we would be looking at is the impact on the user at the very end of this process. What are the implications for the insurance market and how does it affect ordinary people trying to get insurance?

Mr. John Newham

The original concept behind the Personal Injuries Assessment Board, PIAB, was to facilitate an alternative process for the resolution of claims. At that time the framework was very much dependent on the judgment of the courts in individual cases. To answer the Deputy's question, this Bill is trying to introduce more predictability, and removing the volatility in terms of awards should have a downstream impact on insurance premiums, the insurance sector and for claimants. When claimants go to PIAB, they will have a much clearer understanding of what level of awards are likely with reference to the personal injuries guidelines.

I will hand over the more detailed questions on the impact of percentages to my colleague, Mr. Maher.

Mr. John Maher

We know from the Central Bank's data over a number of years that the cost of settling a claim through PIAB is significantly less expensive than through litigation. We also know that the cost of claims has a 40% to 50% impact on premiums. Therefore, we can see already in the data that are coming out of PIAB that the personal injuries guidelines have reduced the awards by about 40% and there should be a consequent reduction in premiums. That is the expectation. If we take, for example, the cost of taking a claim through litigation, in terms of the award, there is very little difference between the PIAB award and what you get if you settle outside of PIAB. The difference is the cost of litigation. The purpose of the Bill is to ensure more of those cases are settled through PIAB, which should then mean the cost of claims is lower, the cost of litigation is lower and, therefore, that should help premiums. That is where we are coming from.

Deputy Louise O'Reilly

Obviously that will take a little time to filter through. The effect would not be immediate but the hope would be that the reduction in the overall costs would reduce the cost to the insurance company and the costs to the individual seeking insurance.

Mr. John Maher

Exactly. If there is a reduction in the cost of a claim, that has a big impact.

On the data protection question, to supplement what Mr. Newham has said, PIAB already has a data protection code in place. The staff of PIAB receive regular training and briefing on data protection in the claims handling process, and PIAB would compile a significant number of data protection impact assessments regarding their work, so there is a well-established data protection process in place. In developing the general scheme, the Department will also work with the Data Protection Commission, DPC, and the Department of Social Protection to ensure data protection safeguards are in place. The Deputy's point is well noted.

Deputy Louise O'Reilly

What I was trying to get at was whether additional skills would be required. With the area of data protection, it is probably every day of the week. New skills probably need to be acquired every morning.

I want to touch briefly on the issue of mediation. I am a big fan of mediation. When it works, it works really well. Head 8 refers to the benefits, which are extensive, and head 11 refers to staff and resources. If it were a requirement in the morning to deliver on the resource capacity, what additional resources would be required?

In the heads it is stated that administrative tasks can be undertaken by existing personnel or what is referred to as external delivery partners, and in head 11 it is stated the organisation may be in a position to appoint external mediators. I understand the concept of external mediators in the event that an organisation is overwhelmed and it is necessary to buy in additional resources. However, there is a very clear benefit to having in-house mediators because they will build up that experience. There is no guarantee when dealing with an outside company about what you will get. Some mediators work in the area of relationships and they are not necessarily going to be the same people who could mediate a case like the one the witnesses are talking about, notwithstanding the fact they may have great skills. There may not be the option, if outsourcing, to designate those skills specifically. My concern is around the creation and retention of an organisational memory with regard to mediation. It is a long time since I was involved in any mediation but I know the more you do, the better you get, the more you build up your knowledge and the better your outcomes. The witnesses know themselves, when the mediation is finished, and while I know it is confidential, if people chat about it in any way, shape or form, they are not going to find that somebody else was perceived to have done better.

In terms of the resources that exist and that are needed and the reference to potentially outsourcing mediation or buying in additional resources, is that more in case of an emergency or would it be the intention that they would be the mainstay of the mediation? I would have a difficulty with the second situation, but only from the reason of building up organisational knowledge. Politically speaking, the witnesses probably know I would be opposed to outsourcing in any event, but that is not the reason. It is to do with the depth and the capacity to build up that organisational knowledge.

Mr. John Newham

To confirm, the intention is for PIAB staff to be the mediators. This is about allowing for those exceptional circumstances, maybe at the start, in respect of managing the workload and as part of the upskilling. PIAB has informed us that that is its intention. It is also important to the parties involved in the mediation process to have trust in the mediator. If he or she is a PIAB official as opposed to someone in-sourced, that can have an impact. To confirm, that is the intention.

Deputy Louise O'Reilly

That is great. I think having that in house would be hugely beneficial. The capacity exists to create a knowledge base and a skills base that will only assist the process. The more you do it, the quicker you will get at it. That is not to rush people through the process. There is the confidence the mediator will have as well. That is really welcome. I thank Mr. Newham for that.

My final question is about head 9. Does the board have an idea yet as to how the rules will be set? Will they be based on international best practice within the EU that is applicable here or will there be a separate process - say, through dialogue? How will the rules be set, and what will inform the setting of the rules?

Mr. John Maher

In the first instance, that would be a matter for the board. We have a Mediation Act and, to a large degree, the general scheme is modelled on provisions in that Act.

As for additional leave, we have the Workplace Relations Commission, WRC; the Financial Services and Pensions Ombudsman, FPSO; and the Residential Tenancies Board, RTB. They have very well established mediation functions, so we expect that the rules will be very similar to the rules that exist for those types of bodies. We think it will be important that the rules are clear and transparent and that when people decide to use mediation they will know what to expect, there will be no surprises, etc. That is how we expect this to be done. The rule-making power is to ensure that both parties are aware from the outset of how they can expect their cases to be dealt with. That is the answer to that question.

Deputy Louise O'Reilly

I have one final question. Mr. Maher mentioned the WRC. The manner in which some hearings, not specifically mediation, are conducted in the WRC has changed because of the Zalewski judgment. Will that have any impact here? I do not see that it would.

Mr. John Maher

It will not because there will not be an administration of justice. The Deputy will know that in mediation there is the agreement of the parties. It is just facilitated by PIAB.

Deputy Louise O'Reilly

It is just that the opening statement mentioned it as having the same weight as a judgment. I did not think it would have an impact but I wanted to double-check. I thank Mr. Maher for that.

My time is nearly up and I have to speak in the Dáil. That is why I have to leave. I will catch up with the proceedings afterwards through the transcripts. I thank the witnesses for their time and their information.

Chairman

The next person who has indicated to speak is Senator Crowe.

Senator Ollie Crowe

I thank our guests for their time. Research by the Central Bank has reflected that legal fees now account for one third of payouts, whereas legal fees in cases of claims resolved by PIAB account for one-fortietth of those decided in court. Over five years to 2018, legal fees in only one sector, motor insurance, totalled €500 million, as we are aware. Mr. Newham has stated that the intent of the mediation process is to increase the number of claims that can be settled without litigation and the costs involved. Notwithstanding that, concerns have been raised with me that the mediation process this Bill proposes to introduce would often result in a dragging out of the process and, naturally enough, significantly enhanced legal fees. Will Mr. Newham respond to that?

Mr. John Newham

As for prolonging the process, no, the board will still be required to resolve cases within nine months, so the mediation should not interfere in that.

I am not sure about enhanced legal fees. This refers back to one of Deputy O'Reilly's questions. The personal injuries guidelines do not just reduce the level of awards. One of the side effects of that reduction has been that a lot of the caseload has been moved from the higher courts into the lower courts, which in itself reduces the legal costs, so things are moving all the time and it is therefore difficult to compare one with the other. Certainly, in respect of the mediation we do not envisage any significant increase in legal costs. Mediation is voluntary. It is down to the parties themselves to agree. I would therefore counter what Senator Crowe says by saying there should be a win-win situation to this.

Senator Ollie Crowe

No matter how good the mediation is at times, in my opinion there will be cases in which it breaks down. Can the witnesses explain to me where that will leave the process?

Mr. John Newham

Currently, where an assessment is not accepted by, say, the respondent, PIAB makes an order permitting the case to proceed to the courts.

Senator Ollie Crowe

I am concerned. I am not fully clear myself as to whether this would involve a Circuit Court award or a High Court award or on the significant cost differences in that regard. A number of businesses have contacted me to tell me there are issues here. I am concerned that the legal costs still seem to be at a significant level. That is an issue, as far as I am concerned.

This is again my own reasoning. Is there any reason PIAB could not operate more or less like the Land Values Reference Committee does when local authorities or public utilities such as the ESB acquire lands or rights for the provision of vital infrastructure? The farmer would be entitled to compensation in such a case. The level of compensation, in the absence of default, would be determined by the competent authority, whether it is the real estate equivalent of PIAB or the Land Values Reference Committee. My understanding, however, is that there is no mediation, arbitration or judicial review, and that process seems to work well without the need to go to mediation, if the witnesses see where I am coming from.

Mr. John Newham

In this area a lot boils down to a claimant saying somebody else is liable for his or her injury. The claimant is claiming that somebody, through an action or whatever else, has caused him or her harm, which moves it into different territory. I think it arose in the feedback from the public consultation that sometimes that conversation between the claimant and the respondent can resolve a lot of the matters, although maybe not all matters, so I would not necessarily compare the two.

As for the question about costs and the different costs associated with the courts, I do not know if Mr. Maher has more information on that.

Mr. John Maher

The function of the mediation, and even the PIAB process as it stands today, is to deal with claims in a non-adversarial manner. It is not a court. That is the first point.

The second important point is that you do not need legal representation per se to use PIAB. That is the choice of the claimant. In respect of legal costs, even if a claimant did use legal representation in mediation, mediation is so much quicker than litigation, so even if it were there it would be less. What we are trying to do is bring those cases that drag on into litigation and so forth into the PIAB process where they can be resolved in a speedy manner.

Mediation plus assessment will do that.

On the point on what happens when mediation breaks down, if mediation breaks down and the respondent agrees to go to an assessment that is what happens. People cannot just use mediation as a means of getting out of an assessment. That is another important point. The WRC, the RTB and the FSPO show this model works and is successful. In the RTB, about 30% of claims are resolved through mediation and in the FSPO the figure is about 20%. It is a viable means of reducing costs and having a speedy resolution.

Deputy David Stanton

If mediation is not completed within the statutory provision of nine months, will it be suspended and will PIAB provide findings? If mediation goes on and on and does not come to an end, am I correct in saying that it stops at that stage and PIAB makes a determination?

I understand that in mediation both parties can bring legal representation to the table. Is there an assessment of the cost of such legal representation and the impact it could have on premiums? What mechanisms are in place to ensure that savings resulting in the use of PIAB are effective in reducing premiums? What the evidence around that?

How long does it take PIAB to issue findings in cases? Does it typically go to the nine-month limit or is it a limit and not a target? What is the estimate of the number of cases that might proceed to mediation versus determinations made directly by PIAB? Does Mr. Maher have any idea what happens in such cases? If PIAB makes a determination that would not be agreed by parties, could mediation then take place within the nine-month statutory limit?

In the statement, reference was made to heads 15 and 16 which allow the board to assess injuries of a psychological nature and to retain cases where, based on medical evidence, a prognosis cannot be determined within the statutory timelines. What exactly does "retaining cases" mean? Does that mean that no award is made, a certain amount is held or the case is revisited at another time? What is the mechanism for that?

We have heard about cases where insurance companies have settled out of court early in the process. We have heard reports of substantial increases in premiums for businesses. Do the witnesses know how frequently that happens? It is there a way that this can be reduced or prevented?

Mr. John Maher

I thank the Deputy. I will group his questions as best I can. If I have not responded to any question, I ask him to prompt me. On mediation and how it can be done, we envisage it will be done quickly. Its purpose is to get two parties into a room, thrash out the issues and try to resolve them. It is envisaged that the process would not drag on for months and months. Head 8 also provides that the board may abandon an attempt to resolve an issue via mediation. If the board can see that there is deadlock or gridlock, it can decide that the process is not working and the claim will proceed to assessment.

On the cost element, as I said to Senator Crowe it is a much quicker process. Even if people have legal representation, the costs should not be piling up in the same way as they would if people went into the High Court.

On reductions in premiums, there is a very clear correlation between compensation costs for claims and the cost of premiums. We would assume that if they are dealt with through the PIAB process rather than going to litigation, they will be cheaper. There should be a knock-on effect. Similarly, the big game changer is personal injury guidelines. Now the awards people receive from PIAB should be exactly the same as they would get if they went to court because both are using the same guidelines. There should be no real differential between what people would expect to get through PIAB, a process which can be completed quickly, or what they can expect to get if they go all the way to the High Court. We think that will have a dramatic impact on costs, but it will take time to bed in.

On what it means when PIAB retains a case, it means the case will not receive an authorisation to proceed to litigation, therefore people will have to stay with the PIAB process. The point of this is that if medical evidence is not available to PIAB to assess a case, that same evidence will not be available to a court to assess the case. Therefore, it makes more sense to keep a case within the PIAB process for a period of time for the injury to settle and, therefore, the claim can be settled through PIAB. Again, it is about keeping cases out of the litigation process. On heads 15 and 16, they are currently discretionary provisions. We expect that where PIAB has the power to retain those cases, it will lead to an increase in such cases. Have I missed any questions? The Deputy asked many.

Deputy David Stanton

On the last point, does it mean that no payment will be made until it is determined what the injuries are under heads 15 and 16? There may be some injuries, a lack of income or whatever else. I asked about where insurance companies settle cases early out of court, which very often results in an increase in premiums to a business. Have such cases been examined? Can it be mandatory that companies have to go to PIAB? How frequently does this happen?

Mr. John Maher

We know from Central Back reports that about 50% of claims are settled bilaterally between parties and never go to litigation. Of the remaining 50%, all cases that are litigated in the personal injury sphere, bar medical negligence, have to go through PIAB. Due to the constitutional right to access to justice, the PIAB process is a consent-based model. If a respondent states that an injury never happened on a premises, he or she is free to reject it. Similarly, if claimants feel the process has not worked for them, they are also free to reject it and proceed to litigation. That is because of the constitutional right to access the courts. PIAB, in a sense, is a kind of temporary or limited block on that, but nonetheless it is a block. The right to go to court has to be maintained.

On the cost of the claims settled outside of the PIAB process or which do not go to litigation, they are on a par with the costs of the litigation route. As I recall, there is no massive difference. I can come back to the Deputy in writing on that.

Deputy David Stanton

The PIAB process does not have the same level of legal representation as in a court case. With respect to situations where PIAB makes an early determination, such as within three months, is it possible at that stage to go to mediation if there is no mediation prior to litigation?

Mr. John Maher

The approach we are taking is that mediation can be availed of at any time in the process.

Deputy Richard Bruton

I wish to take this opportunity to congratulate Mr. Maher and his staff on bringing forward the Bill. It is important that PIAB becomes more mainstream. As was outlined, cases are settled in half the time and at one-twentieth of the legal costs of other routes.

I read reports in yesterday's newspapers that the number of cases being accepted in the PIAB process fell recently from over 50% to 37%. That is a considerable fall. It is reported to reflect the new quantums. It would seem that people are testing the system and moving away from PIAB in the short term. Can anything be done to arrest that, even in terms of information and trying to promote a better knowledge of what is happening?

I note that larger cases seem to leave PIAB. In terms of the total costs, 80% of the costs awarded happen through litigation rather than the PIAB route.

What is behind this? Does it reflect some deviation from the quantum by the courts, so that people feel the gamble of going the court route is justified? In regard to the system whereby when an award is no greater than in the courts, the person pays the costs. Does that only apply if the case goes to full litigation? Most of these cases seem to be settled on the steps of the court. Do people have a free bet? They can go to the steps of the court and if they are not doing well, they just settle and this section does not get tripped. Does the Department track what PIAB would have awarded versus what the court settlement was? Do we have that information? Is it possible during mediation to deviate from the quantum? Could mediation become a way of undermining the quantum? Considerable effort has gone into creating some sort of standardisation.

Mr. John Newham

I thank the Deputy. I will try to answer some of those questions and then defer to my colleague Mr. Maher. Over the past few years, the statistics have changed radically because of Covid-19, which has had an impact on accidents and so forth due to lower economic and social activity. However, in regard to what the Deputy is referring to, there is a chilling effect at the moment with regard to the legal challenges that have been brought in respect of the personal injuries guidelines. When those legal challenges are resolved that will bring clarity in terms of the veracity of the system. As a result, depending on what the judgments are, we would expect that to have an impact.

On the point Deputy Bruton makes about large cases, on which I will defer to Mr. Maher shortly, the personal injury guidelines acknowledge that particularly severe cases require a different approach. Often with larger cases, the issue of liability is paramount. That requires a judgment and the courts are the best place to adjudicate in such matters.

In regard to the question on full litigation and whether that will have an impact on matters being resolved on the steps of the court, I think it will have an impact in terms of the respondent being better enabled to predict what the outcome of a judgment would be in the court because the legislation is clear in that respect. It would, therefore, have some impact but it is more to do with the positions of the parties and the arguments that they engage with on the steps of the court.

In regard to the statistics between court settlement and those of PIAB, we have statistics but it depends on the court, the level of the court and the availability of statistics concerning court judgments. Obviously, where the District Court makes a judgment, the statistics are less available to us. My colleague Mr. Maher might also comment on that.

The final question was on mediation. Would the Deputy mind repeating it?

Deputy Richard Bruton

Will mediation become almost a new route potentially undermining the quantum of damages approach? Will it serve to see an upward drift? Will it be a bit like litigation-lite?

Mr. John Newham

It should not because mediation, the assessments and, indeed, litigation must take into account the personal injuries guidelines. Obviously, mediation may involve some agreement on potentially other costs but as regards those costs, such as, potentially, legal representation in a mediation process, it is up to the parties to decide on that. Compared with the litigation process, that would be much lower.

Mr. John Maher

I thank the Deputy. I will work backwards. Mr. Newham set out the mediation piece. Mediation is a closed box between the parties to agree whatever the issues are, with PIAB facilitating the resolution of issues. No matter what we do, keeping it in the PIAB process will reduce costs. It is going to be cheaper. In terms of the larger claims, 70% of claims made to PIAB are in the motor sphere and of those, about 80% would be back- and neck-type of injuries that would have relatively speedy recovery times. The awards reflect that.

The public liability is around 17% and the employer liability around 13% of the claims. They would be the ones where there might be more serious injuries. They would be reflected in the quantum. As Mr. Newham said, sometimes there may be issues around liability and that is why the cases may proceed to a court and have a higher cost. What we see at an aggregate level in the NCID are differentials between the cases that are settled pre-PIAB, immediately after PIAB and in litigation. It shows very clearly that the PIAB and the cases immediately after PIAB are far cheaper that those that go all the way.

On the Deputy's point about the free bet and cases settling on the steps of the court, the parties have a right at any time in the process to resolve the matter themselves and settle. Nothing can be done about that because that is a matter for the parties to agree. Claims can be withdrawn from PIAB. What we need to see in the coming years is cultural change. We need to see respondents settling through PIAB. We need to see consistency between what the courts are doing and what PIAB is doing. We do not yet have the guidelines and the mediation in place and the courts are not yet making judgments on the guidelines because to a large extent the claims before the courts were instituted before the commencement of the guidelines. There is, therefore, a time lag in terms of what we are seeing between the PIAB process and what is in the courts. Mr. Newham referred to a chilling effect. We think that when those legal challenges are concluded, we will have greater certainty in the injuries and claims environment. That should contribute to lower costs.

Senator Garret Ahearn

I thank the officials for coming in today and for the work they are doing on this. Mr. Maher stated that the longer we keep people in PIAB, the better it is in terms of reducing costs to the Exchequer in terms of insurance. I ask the witnesses to expand on two statements they made. The issue relates to payouts for individuals. If someone has an accident in a place of employment, as we heard today, the individual who is taking the claim does not need to worry about a reduced cost because it is done using the same system as the court uses. The way we will reduce costs is in terms of legal fees. To take the case of a person who owns a premises on which an accident happens, we have seen cases in the courts where the amount of money people have been awarded seems ridiculous. For example, someone who falls and bruises a thumb can get thousands of euro.

I am referring to what occurs if PIAB assesses payouts in the same way as the courts. A person in mediation could feel the claimant is getting away with more than he or she deserves, perhaps because he or she has a doctor's certificate or claims it is necessary to be out of work for three months or another period. The person in mediation could feel it is unfair but could not really go to court because he or she would know that doing so would incur legal fees. Therefore, whatever the agreement with PIAB, it would be very hard for a court payout to be lower — unless, of course, the case was won in court, which would be even tougher. While it might be less for the person who owns the premises, he or she would still feel very aggrieved if the amount of money someone got was quite high.

Mr. John Newham

To unpack that a little, when we hear of court cases where the awards hit the headlines in the newspapers — quite often, they hit them because they are exceptional — we should note that any judgments made by the courts currently are in respect of the old system, which relates to the book of quantum. They are not in respect of the personal injuries guidelines. This is part of the rationale supporting the introduction of the personal injuries guidelines. However, the Senator is right about one matter. It depends on whether the respondent is insured and whether he is representing himself or the insurance company is stepping into the role of respondent, which adds a different dimension. I say that because if the owner of the business is the respondent, the issue of liability might be more important to him or her. In a mediation process, the owner can engage with the claimant and have a discussion, whereas, currently, through an assessment process, it is all offsite, with PIAB making the assessment. The alternative is to proceed to litigation, which is through the lawyers. There is a counterargument in that situation because mediation does allow what I describe. If an owner in the circumstances in question rejects liability, a judgment is called for. There is only one person who can make a judgment, namely a judge. If the individual is insured, the insurance company will be taking other matters into consideration. It will be looking at the calculator and making a call on the risk associated with proceeding to litigation.

Senator Garret Ahearn

I can see the point exactly. My point is that it could sometimes be frustrating for people if they felt someone was getting too much and they could not really do more about it because it would cost more.

Mr. Newham used a very good phrase in implying the process under discussion is to be an alternative process to solve claims. For a long time, there has been an alternative process to solve the claims in that if someone fell in a pub, the pub owner would invite the individual to talk and offer a certain amount of money. That happens quite a lot. Do the delegates expect hoteliers, restaurateurs and pub owners, in whose premises accidents of the kind in question happen quite regularly, to consider the process we are discussing as opposed to offering a certain amount of money? Do they believe the process will help a lot of people in the industry, especially in rural Ireland? I am from Tipperary and note that there are pubs in small villages that do not have insurance at all because they cannot afford it. Does Mr. Newham believe the process will help in reducing the cost of insurance and opening things up for small family-run pubs and other places in rural areas that just do not have the money? All they need is one accident for their business to be gone.

Mr. John Newham

It does happen currently. The cases the Senator referred to never get to PIAB because they are resolved beforehand. In effect, the owner mediates with the claimant and they come to a resolution. There should not be a change in that regard. In fact, all of this is just recognising that talking is good. It supports that but I do not believe it will have an impact on what the Senator was referring to.

On supporting smaller companies, outcomes are much more predictable now. If a company enters mediation, it is able to assess what the award might be under the personal injuries guidelines. Assuming it is notionally accepting liability in some way, it does not really need the lawyers. In those circumstances, the cost is radically reduced by comparison with the cost of litigation. The process should assist in that sense.

Mr. John Maher

To address the insurance issue the Senator raised and the difficulties in getting insurance in rural Ireland and elsewhere, the Government has produced the action plan for insurance reform. Across various parts of government, there are reforms under way. Legislation such as the perjury Act has been enacted. There is work ongoing on the duty of care and occupier liability. These are very important parts of the puzzle, of which PIAB is one piece. There is no magic bullet that will solve all the problems regarding the availability and cost of insurance, but, taken together, the measures will have a positive impact. That is the only thing I would add on the specific point to Senator raised on businesses in rural Ireland.

Deputy Matt Shanahan

I thank our guests. The legislation is timely. We are all aware of the significant problems that have existed in the insurance industry, particularly those faced by small and medium-sized businesses. Runaway insurance claims and personal injuries claims, in particular, have become a scourge in business. Anything that can be a bulwark against them has to be welcomed.

Let me make a couple of points. There is anecdotal evidence to suggest that nearly seven out of ten personal injuries claims go straight to the courts, bypassing PIAB. This raises a question over the attachment of conditions such as post-traumatic stress disorder to personal injuries claims. Doing so leads to a much higher payout in the courts. From a legal-fees perspective, there is good reason for going to the courts, particularly if one can get into the Circuit Court or High Court. In the Circuit Court and High Court, fees can range between 30% and 60% of the final award. Legal people probably try to push claimants to go to courts if they can at all. The delegates say the mediation process they are highlighting is mandatory, but if I go through a mediation process with PIAB for four months and my legal team tells me it has a good chance of exceeding what I believe PIAB will offer, although the team believes it might not exceed it by more than €500 or €1,000, there is a very good reason for going to court: the claimant would not face costs. Have the delegates considered examining historical awards where the settlement in the court was only marginally ahead of the PIAB recommendation? I refer to examining where court costs were being awarded against the insurance company so as to determine whether we need a far larger quantum. In other words, if I had a personal injury claim of €10,000 and attracted €10,000 in legal costs, should the personal-injury assessment by the courts not have been €20,000, which is what it would have cost to finish out the claim? Maybe the delegates would like to comment on that.

My next question is on the confidentiality of PIAB mediation. If one engages in a seven-month or eight-month process with PIAB and more or less knows what one will be offered and it is then decided to take the case to the courts, is there any danger that the information would be in the court domain or potentially available to anybody interacting with the case?

In other words, they may know if they can get a claim above that amount in the courts; I am not saying that they are able to speak to people but it creates an obvious question.

My third question relates to recurrent claimants who have been a significant feature in personal injury cases in this country, particularly against local authorities. Has PIAB any function or mandate to start looking at how people can be so accident-prone and how families can keep receiving recurring payments over periods of years? I ask that our guests might address those questions, please.

Mr. John Newham

On the confidentiality issue and recurrent claimants, we are getting into the area of fraud and I will defer to my colleague on that point.

Dealing with the first question and working backwards, we looked at the aspect as to whether there is the setting of a percentage difference between what the award and what the final outcome is, and whether that can influence the process. I will, again, ask Mr. Maher to deal with that.

To explain, mediation will be voluntary process, and is not, as the Deputy mentioned, mandatory. We are proposing that it is voluntary as it has to be so.

PIAB needs to market itself because when one looks at the statistics and the level of awards being made by the courts even under the old system, which is the key thing, the claims did not end up much better. Certain professions ended up better but the claims themselves did not and often the claimants had to wait much longer, 4.2 years on average. Even under the old system, the PIAB process, on average, was much more effective in these terms. That is why under the legislation there are provisions around PIAB conducting research and getting out there more.

The Personal Injuries Guidelines are the step change because the level of discretion under the old system has been narrowed under these guidelines and it is a great deal tighter. I would certainly expect and I cannot see how there would be any difference under the Personal Injuries Guidelines between PIAB assessments, an outcome of mediation, and if a case went to full litigation. I will leave the other questions for Mr. Maher to answer.

Mr. John Maher

I thank the Deputy for his questions. On the question of mediation, the general scheme provides that it is confidential and that there only very limited circumstances as to when the details of that can be disclosed. It would not be the case that one would be going into court saying that a person had said this or that, as it would not work that way.

On the other question on the uplift and the need to beat the award by a certain amount, we certainly looked at that. Three main issues arose. First, what kind of percentage would this be? Would it be 10%, 20% or 30%, as there is a type of arbitrary aspect to that? The second and more fundamental issue is that the court is, by its constitution, independent and has to decide what that is. We cannot put in an artificial bar to say that a court can only do this because then one would be effectively setting a bar and all anyone could do then was to go over the bar and we looked at the issue in that respect. The third part on the repeat claimants is that we are providing within the Act that PIAB, where it sees fraud or suspected fraud, can report that to An Garda Síochána. PIAB, again, is an administrative process and is not an investigative body and it is limited in that way.

If someone feels that this person keeps coming around and knocking on the door and falling down the stairs, they can challenge that and the respondent does not have to go along with the PIAB process, and can say that they will see that person in court.

Deputy Matt Shanahan

Through the Chairman, I would like to raise one more matter.

Chairman

Very briefly, please, Deputy.

Deputy Matt Shanahan

Where claims have been made, if a claim is proceeding to court, it is nearly in the insurance company's interests to settle on the steps of the court rather than to go in, litigate it and ultimately be awarded the costs against it. How is this process going to change that?

Mr. John Maher

Again, it is the fact that now the insurance company can say that the claimant will not get any more in the court because the court will assess on the same basis as PIAB, so the award will not change. It is that cultural change then to say, no, and that it will not settle outside of the court, and is using PIAB for the purpose intended by the Oireachtas.

Deputy Matt Shanahan

My time is up and I thank the witnesses and the Chairman.

Chairman

I thank the Deputy and call Senator Sherlock now, please.

Senator Marie Sherlock

I thank the Chairman and the officials from the Department for attending the hearing today. I have a number of questions. On head No. 22, and I am aware that others have raised this concern also, but on the fundamental and constitutional right of access to justice and to the courts, this head seems like an interference with the running of the court in some way in its directing a judge with respect to a costs order, if the ruling is the same as the PIAB ruling. I raise that concern and seek greater clarification from the officials on that issue, please.

My main question relates to the mediation service and it is important to understand precisely how it will work. First, how separate will the mediation service be from the rest of the assessment work within the personal injuries resolution board? The proposed legislation speaks about officials within PIAB working in mediation but it is not clear how distinct or, indeed, how interconnected both the assessment service and the mediation service will be.

Second, I am thinking about the person who is taking the claim and while, with good reason, there is a very significant concern about fraud and those who are taking repeated claims, on the other side of that we need to ensure that we fully protect those who are coming forward and have a legitimate injury. What protections are they afforded in the mediation process and what supports are they given? I see here that they are allowed to be accompanied by somebody, or perhaps a legal adviser, and I am just wondering if we are getting back then into the whole realm of additional costs. This is important in understanding what supports are going to be there for the person bringing the claim and in understanding the mediation process because ultimately we may need to hardwire some of those supports into the legislation.

My apologies but I am conscious that I need to throw all of these questions, listen to our guests' replies and run to the Chamber then. I very much welcome head No. 24, in respect of data collection, but I want to understand what type of data collection the legislation refers to. Our guests spoke earlier about a lack of oversight in respect of awards being made in the District Court. We know a little bit about what is happening in the Circuit Court but does the data collection extend to that? Unless we fully understand what is happening in the courts we cannot properly compare with what is happening through this new personal injuries resolution board. I thank our guests.

Mr. John Maher

I thank the Senator for her questions. On her first point, on head No. 22 in respect of the courts, we modelled this on existing legislation, namely, the Civil Liability and Courts Act 2004. While it is, for want of a better description, refining the discretion available to the court, the court still has the power to state that in the proceedings, the costs are going to be awarded because the court feels that an injustice may have been done. The court is still free to make that decision and it is provided for in the general scheme.

On the separation of functions, the Senator is 100% correct, in that there has to be clear water between the mediation process and the assessment process. That is something that PIAB will take forward in how that will work and be configured within the organisation. It would not make sense if one was mediating on a case and that one would then go in and assess the same case, for example.

Therefore, there will be a very clear distinction between the mediation function that is undertaken and the assessment. Again, that is something we can work out with PIAB. The Senator is right there needs to be separation.

PIAB is a very rich source of data. It is really important for it to make the data publicly available. It has data on the types of accidents and the types of injuries. It can be very useful to get regular data on that to understand what the most common types of injuries are and how they are happening. Are they happening at night or in certain premises etc.? That information can help with risk reduction.

PIAB has data that is almost complementary to what is in the NCID on claims, settlements, length of time etc. Again, it is about PIAB using those data and publishing them regularly, thereby increasing information and transparency in the claims environment. Again, we think that will help.

The Senator had one other question which I do not recall.

Senator Marie Sherlock

My question was on the extent to which the data collection will encompass oversight of the awards system. Picking up on mediation, I also asked about the supports available to those making a claim because it is really important. My concern is that somebody will feel forced into mediation. While, of course, they have the right to opt out, ultimately there is a power imbalance there for individuals engaged in mediation with an insurance company. My concern is that the person making the claim will be at a disadvantage. I want to understand what supports are available to that individual. What do we need to hardwire into the legislation to ensure those supports are there?

Mr. John Maher

PIAB will publish very detailed information on the process, how it works and what people can expect. It will be set out very clearly. Even the existing Act provides that PIAB can advise people of the claims environment. Therefore, PIAB can provide advice and guidance.

In terms of what type of representation they may have particularly if they are vulnerable, the legislation provides for treatment of vulnerable people, children etc. That is built into that process. As the Senator has said, they are free to have legal representation or whatever type of representation they may feel is necessary. The Senator has raised a good point and we can reflect on that as we progress the legislation.

Senator Marie Sherlock

I thank the officials.

Senator Róisín Garvey

I thank the officials for appearing before the committee. I have been reading up on this for quite a while and it seems positive overall. We all know the amount of money wasted on legal fees in general. This seems to be a step in the right direction.

Is the mediation legally binding without having solicitors in the room? I know there are two types of mediation. There can be mediation where the parties agree on everything but it comes to nothing because it is not legally binding and there can be legally binding mediation. Will the mediation that PIAB is offering without either party bringing their solicitor into the room be legally binding if there is an agreement?

Why has the Government not given PIAB full adjudication powers? I ask the officials to tell me more about the court discretion regarding costs in litigation being tightened.

Mr. John Newham

The Senator asked if it is binding. Yes, I think it is legally binding. There is a cooling-off period associated with it, but it is legally binding.

Senator Róisín Garvey

Okay. Therefore, it is worth doing. People often waste time in mediation because it comes to nothing.

Mr. John Newham

The Senator asked why we would not make PIAB an adjudicating body. It is a simple question but the answer is rather complicated. It fundamentally comes back to-----

Senator Róisín Garvey

Is it unconstitutional?

Mr. John Newham

Certainly, the Constitution has a role to play. The type of law that it deals with also has a role to play. Essentially, it is dealing with personal injuries which legally is normally a matter for tort, which is court-made law. Unlike the WRC which deals with employment law and which is generally statutorily based, it would be a body dealing with court-made law which creates a problem. There are also constitutional concerns relating to the right of access to the courts and, of course, the primacy of the courts in the administration of justice.

Senator Róisín Garvey

That makes sense.

Mr. John Maher

I did not quite catch the question on head 22 and the cost of litigation.

Senator Róisín Garvey

The note states that the amount that can be awarded will be tightened up. What does that mean in practice? I am asking for more information about the courts' discretion regarding costs in litigation being tightened.

Mr. John Maher

Head 22 provides that where a claimant rejects the board's assessment, where the respondent accepts the assessment and where the court does not exceed the board's assessment, the court will hold the claimant liable for the respondent's costs in defending the litigation. The head makes this the default position unless the court considers doing that would-----

Senator Róisín Garvey

When Mr. Maher says the "head", what does he mean? Does he mean the person in PIAB? What does he mean by the head?

Mr. John Maher

I am talking about head 22 in the general scheme of the Bill.

Senator Róisín Garvey

Okay, sorry.

Mr. John Maher

The purpose is to reduce the incentive to go to court, as Deputy Shanahan said, or a kind of free bet, as Deputy Bruton said. It is to encourage claimants to realise that they will not necessarily be better off going to court and in fact could be considerably worse off. They need to ask whether it is worth taking that bet. It also provides certainty to the respondent in believing that the claimant will not beat that award. We think it should impact on costs by encouraging greater use of the PIAB model. That is the intention of the provision.

Senator Róisín Garvey

Mediation can be a real game-changer if we can get people to engage because then we will know it saves everybody money. However, more will need to be done to promote the fact that it will save people money. Unfortunately, if people are getting free legal aid, they do not care about saving money and therefore it will need to be promoted in other ways. I think it will be a challenge in some ways. However, I believe the Department is doing good work on it.

Mr. John Maher

That is why, based on the responses through the public consultation, we are providing a new function for the board. That information provision, awareness raising, communication etc. will be a core focus of the board's work.

Senator Róisín Garvey

This scheme will be competing with injury lawyers who do great advertising stating they will get claimants all their money. I hope the Department recognises the value of good PR to let people know that this is a good option.

Deputy David Stanton

I have a few follow-up questions. Is there a limit to the amount of money that PIAB can determine as a final outcome? Is that reflected in the mediation process as well?

Mr. John Maher

The amounts that PIAB can determine are set out in the personal injury guidelines. It cannot go above and beyond that.

Deputy David Stanton

What are they?

Mr. John Maher

I would need to come back to the Deputy later. Unfortunately, I do not have it. The scale of PIAB awards can go from zero to €300,000 or €400,000. The higher limit would be in very exceptional circumstances. In addition, the award levels comprise general damages and special damages. The general damages are what PIAB assesses using the guidelines and the special damages would be things like loss of income etc. That might give the Deputy a flavour of it. I can revert in writing with the detail.

Deputy David Stanton

In the case of catastrophic injury as a result of a car accident, where we are talking about settlements in the range of €1 million or more, what is the situation? Does that have to go to court? Is there a cut-off point? How is that determined?

Mr. John Maher

Again, it is determined by the guidelines and what they prescribe in terms of awards for certain types of injuries. The Deputy must forgive me; I am not an expert on them.

Deputy David Stanton

My question really is related to PIAB's role and the limits that might apply to it. If someone is involved in a car accident and has a catastrophic injury which might yield an amount in the millions, is PIAB ruled out in circumstances like that? Does it just go to court?

Mr. John Newham

The difference between the guidelines and the book of quantum is that the guidelines are certainly more prescriptive, especially with lower level injuries. However, the new guidelines did not diverge from the book of quantum with regard to catastrophic injuries. That has not necessarily changed. The guidelines literally go into every type of injury, every part of the body. There is a significant itemisation of the various injuries there.

As for catastrophic injuries, PIAB can certainly deal with those cases but it might be at a level where judgment is required and that is where the case becomes more complicated. With catastrophic injuries, there can also be a number of injuries interplaying with each other. That is where PIAB can decide that a case is far too complicated for it and requires more medical assessments and a judgment to be made of the interplay of all these injuries and the long-term prognosis. Such cases tend not to be within the PIAB fold because of their complexity. The current legislation allows for PIAB to withdraw from cases of that nature.

Deputy David Stanton

That is fine. I take it that the issue of periodic payment orders, PPOs, will be treated in a similar fashion.

Mr. John Maher

As I understand it, the PPOs are currently being looked at by the Department of Justice.

Deputy David Stanton

The first payment was approved by a court in February 2019. Periodic payment orders are obviously linked to insurance claims as well. I want to know whether the officials have looked at the possibility of PIAB being involved in them. Similar to what Mr. Newham just said, would they be too complex for PIAB? Would they have to be dealt with by the courts?

Mr. John Maher

Every case would be dependent on the circumstances and its individual characteristics. On PIAB having a role in the PPOs, no, that is not something we have been looking at. That work is under way in the Department of Justice. We do not really know what the outcome is.

Deputy David Stanton

Earlier on, I asked about the issue of retaining cases. In the initial statement, Mr. Newham said that heads 15 and 16 will allow the board to assess injuries of a psychological nature and retain cases. Is there a time limit by which cases can be retained? Could this be indefinite? Could the officials tell us more about how that might work? Would somebody receive an interim payment and perhaps over a number of years if an injury developed, for example, if someone developed epilepsy as a result of a brain injury? Is that the kind of thing we are talking about?

Mr. John Maher

Under the Act, PIAB has nine months to make the assessment. In exceptional circumstances, that can be extended by six months and with the agreement of parties, it can be extended further. The timeframes are pretty prescriptive. If I understand the Deputy's question correctly, if PIAB makes an award in 2022 and the injury deteriorates further in 2025, the Deputy is asking if it can be reopened. As far as I am aware, it does not work that way. PIAB makes an assessment based on the circumstances of the claim at that specific point in time. It does make the award in special damages, though, which take account of other factors. It may be factored in there. I would not be 100% sure on that operational part of it, to be honest with the Deputy.

Deputy David Stanton

Mr. Maher referred to six months. That is 15 months overall by which the whole matter has to be finalised. It was stated earlier that cases might be retained where, based on medical evidence, the prognosis cannot be interpreted within the statutory timelines. We are adding six months on to the nine months that are already provided. I understand the issue where a payment is made and the claim is extinguished and cannot be revisited. We probably need more clarity on this particular issue. In some instances, medical conditions can arise much later. I am talking about epilepsy and conditions like that. They can get worse. Without medical evidence at the time, as it says in the guidelines, if it cannot be determined within the statutory timelines, that might need to be revisited.

Mr. John Maher

The Deputy is right and we acknowledge that in the heads. There is an important balance to be struck between the right of access to a court and the public interest in settling claims through PIAB where that long-term prognosis is yet to be arrived at. That is something we will have to take very carefully into consideration when drafting the Bill. Similarly, it is something the Oireachtas will have a view on ultimately.

Deputy Matt Shanahan

We may be going back over ground that has just been discussed. Do we have an established book of quantum at this stage that is agreed by all parties, by PIAB and the courts? I know we have injury guidelines but I think there is still work being done on the book of quantum. That brings me on to a point I already made. Where we have the attachment of other conditions, such as anxiety, depression, or post-traumatic stress disorder, PTSD, how is PIAB going to manage that rather than have the case brought back into the courts where people might feel they will get a far more subjective hearing and potentially do better?

I know I am slightly digressing, but it was mentioned that the Department is progressing the owner-occupier legislation which has been called for. We need to see that along with the duty of care. It is all part of where we are going. We in the Regional Group did work on top of what Senators had done previously to get the perjury legislation amended but we need the whole package now.

In respect of what Senator Garvey outlined on restricting advertising colloquially known as ambulance chasing, is PIAB going to highlight that point also? I am aware of one legal firm in Dublin that still has a rotating sign calling for people to come in if they have been personally injured. Are we going to see an end to that kind of culture?

Mr. John Newham

Just in terms of the book of quantum, yes, personal injuries guidelines are in effect. Any assessments being made by PIAB currently are based on the new personal injury guidelines. The book of quantum is still relevant for those cases that have already entered into the courts. That is the distinction. As time goes on, we would expect the book of quantum to feature less.

In terms of psychological claims, initially the legislation enabled PIAB not to deal with psychological claims. Largely the rationale was that they are so complicated but PIAB is confident that it can deal with that complexity. That is why we are introducing provisions to deal with psychological claims.

Owner-occupier liability and duty of care is with the Department of Justice. I know good progress is being made. The Department reported on it as part of the recent annual assessment of the action plan for insurance reform. Mr. Maher might comment on where that is at if he can recall.

On ambulance chasing, it is not a role for PIAB. I am not sure where exactly the role is but it will be somewhere in the Department of Justice space. I can get back to the Deputy on what actions are being taken in that regard.

Mr. John Maher

Just to supplement what Mr. Newham has said, on the PTSD and psychological claims, we are giving PIAB the power to assess those cases as factors. There is a good reason.

When the PIAB was established it would not have had the experience in these types of cases, but it is in place for 18 years now and it has acquired a lot of experience in those types of claims. More importantly, they are set out in the personal injury guidelines now so the PIAB has a clear framework and reference point to make assessments.

On the occupiers liability and duty of care, the Minister for Justice, Deputy McEntee, gave an update on that in the context of the Justice Plan 2022, which was published on Tuesday. As I understand it, work is at an advanced stage on matters relating to codification of things such as common sense in personal injury cases and provisions regarding the voluntary assumption of risk. As Mr. Newham said, the Department will be progressing that as quickly as possible because it is recognised in the action plan for insurance that it is an important piece of the jigsaw that has yet to be put in place.

Chairman

Nobody else has indicated a wish to speak so this concludes our consideration of the matter today. I thank Mr. Newham, Mr. Maher and Ms Barrett for attending the meeting. We obviously will consider this matter further as we progress so we will probably invite more stakeholders to appear before the committee.

That concludes the business in public session for today. I propose to the members of the committee that we go into private session to consider other business. Is that agreed? Agreed.

The joint committee went into private session at 11.02 a.m. and adjourned at 11.15 a.m. until 11 a.m. on Wednesday, 6 April 2022.