I am not going to delay the Minister. There is no point in going over the same ground again. I would ask the Minister to reconsider his decision with regard to this matter. I have tabled amendments to Report Stage which, I understand, were ruled out of order for the same reason as earlier amendments along the same lines by Senator Durcan and by Senator Fallon were ruled out. I would ask the Minister to share the concern of this House with regard to the manner in which subsection (2) of section 2 was drafted and to concede at least one principle, that, where a court adjudicates on contributory negligence, that would be binding on the health board. I will not press it to a vote but the Minister owes it to this House to consider the points raised in the discussion in this House. Members on all sides put forward an argument which was not answered and which was not capable of being answered. The Minister gave us the clear impression last week that he was in sympathy with us. If the Minister is not going to concede on it he will not find me troublesome. I will depart wounded but graciously.
Health (Amendment) Bill, 1985: Committee Stage (Resumed).
We have been over this ground many times. Like Senator O'Leary, I would ask the Minister even at this late hour, to agree to the amendments. If he is not going to agree to them he should say so again. If Senator O'Leary puts it to a vote then he will certainly have my support and that of my party.
I appreciate the difficult points made by my parliamentary colleagues here even to the extent that Senator O'Leary is deeply wounded — I presume he will never lodge a claim.
It is a self-inflicted wound.
There is 50 per cent on the contributory negligence side.
If he were to claim we would finish up in the Supreme Court in relation to the particular charges envisaged. Since we adjourned at 3.30 p.m. this afternoon I have again consulted the senior parliamentary draftsperson, his colleagues and the Attorney General on the points raised by the Senators. I have to reiterate that the advice I have received is to the effect that the Bill as drafted is still the most suitable form for dealing with all the different complex types of cases which can arise in respect of road traffic accidents and at the same time providing protection to the injured party and to the health boards in dealing with charges in a reasonable and a fair manner.
Briefly, the intention of the subsection is quite clear and open to only one reasonable interpretation, namely that the health boards have the power to waive the whole or part of a charge having regard to two factors, first, the amount of damages actually received — as I explained to my colleagues, that charge can only be activated after the money has been received — and second, any reduction of the amount of damages resulting from the contributory negligence of the injured party. Therefore it is quite clear that the subsection is obliging the health boards to have such regard and implies in a very definite way that they should act on the basis of such a reduction. They should also act in a reasonable manner. I intend to convey that view very adamantly to the chief executive officers of the health boards. It goes beyond the scope of the Bill and indeed of the House itself to ponder the possibility of one or more health boards in the future taking a draconian action towards the imposition or the waiving of charges. I strongly feel the view that if they were to act in such a fashion they would be considered to be in breach of the subsection and would then leave themselves open to a very logical and very acceptable defence to any action that they might take to recover charges under section 3 (1) of the Bill. I consulted extensively on the section.
The Bill arises out of a Supreme Court decision. We won the case in the High Court: we lost it in the Supreme Court. I am very reluctant at this stage, having spoken at length to the legal draftspersons concerned, and being aware that any Bill may again be subject to constitutionality actions, to disclose any further "ruminations" on my part. With the weather so bad and grass so scarce, those ruminations might not produce any milk at all.
I regret that the Minister has not seen our point through. I thank him for debating this section so very fully. The debate has been very helpful.
I move amendment No. 7:
In page 3, subsection (2), line 38, after "which" to delete "damages or compensation are paid" and substitute "an award of damages is made or compensation paid (whichever is the earlier)".
The purpose of the amendment is to provide that a cause of action will arise in the case where damages are recovered following a determination by a court as and from the moment a determination is made in other cases as and from the time when the damages are received by the injured party. As the section stands, the cause of action arises, is deemed to accrue, on the date on which damages or compensation are paid, which is somewhat different.
The difficulty here is that if the amendment were passed such debts would accrue on the date an award was made or compensation paid whichever was the earlier. This could involve a demand for payment before the injured party received his or her compensation and when he or she could not possibly be in a position to pay the charges. I do not think that Senator Durcan would wish that to be so. A sizeable time lag could exist between the making of an award and actual payment of damages; therefore we put in, after very careful consideration, the original wording. It is to the benefit of the injured party. The health board would have to, in effect, wait for their money until the party have the money in their hands.
I would make the point that I do not disagree with what the Minister is saying but a problem can arise where an insurance company could be very slow in parting with the money and no right of action would arise on the part of the health board either against the injured party or against the insurance company at that time. I put down the amendment for the purpose of giving health boards the legal mechanism to recover very speedily from, for instance, an insurance company.