Civil Liability (Amendment) Bill, 1996: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

The purpose of this Bill is to amend the civil law so as to improve the rights of persons who suffer loss on the death of a dependant that is caused by the wrongful act of a person. The Bill extends the categories of dependent persons who have a right to claim certain heads of damage as compensation for loss in such fatal injury cases and increases the maximum amount of compensation that may be awarded by the court to dependants who suffer mental distress.

Before dealing, for the information of the House, with the details of the Bill I will indicate briefly how the existing law operates under the Civil Liability Act, 1961. Part IV of the 1961 Act gives dependants of a deceased a right to claim damages as compensation for loss of pecuniary benefits, for mental distress and for funeral expenses where the death has been caused by a person's wrongful act. Such actions must be commenced within three years of the date of death. They are in the nature of a class action, where one case is taken for the benefit of all the dependants. For the dependants of a deceased to have a cause of action, the circumstances must be such that, but for his or her death, the injured party would have been entitled to take an action for damages against the party who caused the fatal injury. Also, the plaintiff must be able to demonstrate that there was a family-type relationship in existence with the deceased, which included financial dependency. The right of action is confined to dependent family relatives who include spouses, children, grandparents, brothers and sisters. It does not extend to persons living with the deceased outside marriage, nor to a former spouse whose marriage to the deceased has been dissolved.

In most actions under Part IV the substantial damages payable are those which relate to the loss of pecuniary benefits which take account of the deceased's income and future prospects. The damages under the head of pecuniary benefits are such amounts as the judge may consider appropriate resulting from the death, apportioned to each of the dependants. Damages are fixed by the court to compensate for the dependant's future losses. In the event of contributory negligence on the deceased's part, the level of damages are proportionately reduced. In certain circumstances, most commonly on the death of a child, loss of pecuniary benefits does not arise.

The changing nature of relationships in contemporary Irish society is such that a significant number of persons cohabit without getting married. The persons concerned are married in all but name and equity would seem to require that those persons should not be discriminated against where there are good and valid reasons or applying laws to them which apply to other classes of persons. In my view our law should keep pace with developments in society and the reality of modern relationships. Senators will recall I took that approach when bringing forward the important provisions now contained in the Domestic Violence Act, 1996, which extend protection to cohabitants in certain circumstances from the violence of the other cohabitant. Those special protections had heretofore been confined to spouses only.

I turn now to the details of the Bill. I have made provision in section 1 for amendment of the definition of dependant in section 47 of the 1961 Act to include persons who, not being married to one another, have been living together as husband and wife for at least three years before the date of death of the other. This means that those persons will be able to claim all of the damages provided for in Part IV of the Act, that is, damages for loss of pecuniary benefits, for funeral expenses and for mental distress. An amendment in section 2 (1) (c) of the Bill to section 49 of the 1961 Act will require the court to take into account in determining the damages to be awarded to such persons for loss of pecuniary benefits, the fact, if it be the case, that the person had no enforceable right to financial maintenance by the deceased. The purpose of this requirement is to ensure the cases being addressed are those where actual dependency arises. That requirement will not apply where damages are sought for funeral expenses or mental distress.

A spouse whose foreign decree of divorce is entitled to recognition in the State may also want to claim damages for loss of pecuniary benefit and for funeral expenses on the death of the other spouse if it is caused by the wrongful act of a person. Clearly, if the spouse had been dependent on the deceased he or she should have grounds for such a claim. Section 1 of the Bill extends the definition of dependant in the 1961 Act to such divorced spouses and the effect is to give them a right to claim damages under Part IV of the Act. The effect of section 3, however, is that no claim can be made by a divorced spouse for damages for mental distress.

Senators will be aware that the Family Law (Divorce) Bill, which gives legislative effect to the new amendment of our Constitution following the referendum on divorce, is before the Dáil. I have provided in that Bill for a number of amendments to existing laws consequent on the introduction of divorce and it would be my intention to amend that Bill in due course to extend the definition of dependant in the 1961 Act to persons who are divorced in the State.

I have provided in section 2 of the Bill for an increase in the maximum amount payable by way of compensation for mental distress in fatal injuries cases from £7,500 to £15,000. The figure of £7,500 has operated since 1981 unchanged under amending legislation. The new figure takes into account increases in the consumer price index. Heretofore, it has been necessary to increase the figure by statute. I have provided in section 2 (1) (b), by way of amendment of section 49 of the 1961 Act, that any future increases can be by orders made by the Minister for Equality and Law Reform. I think the House would agree that is the way to proceed for the future, without the need for amending legislation.

Section 4 amends section 18 of the Air Navigation and Transport Act, 1936. This amendment is necessary because that Act, as amended by a series of Acts culminating in the Air Navigation and Transport Act, 1988, has provisions corresponding to those in Part IV of the Civil Liability Act, 1961. The amendments provided for in section 4 correspond to those in sections 1, 2 and 3 of the Bill. Senators should note the amendments provided for in sections 1, 2, 3 and 4 of the Bill will not, by virtue of provision in each of those sections, have effect in relation to any cause of action which accrued before the coming into force of those sections.

I am glad to bring forward this Bill, particularly as it recognises the reality of changing family patterns in Ireland, a reality that sometimes we have been slow to recognise. To date, a good deal of my Department's resources on the legislation side has been geared to substantial reforms of our family and equality laws but I think it fair to say that my reforms of other aspects of the law have made important progress by way of, for example, the Occupiers Liability Act, 1995, and the Powers of Attorney Act, 1996. This Bill increases to five the number of Bills promoted in the short life of my Department which have been initiated in the Seanad. This Bill is a small but useful addition to the Government's programme of civil law reform. The need for it has been identified and I am glad to take action on the matter.

I commend the Bill to the House.

As the Minister said this is the fifth item of legislation from his Department to have been initiated in the Seanad. It is a testament to the Minister that he has introduced difficult legislation. This Bill recognises the reality of changing relationships and the changing nature of the family.

We share concerns about the compensation culture. I do not suggest this legislation will contribute to that culture. However, an extraordinary attitude appears to have developed with regard to compensation. The late John O'Connor, who will be recalled for his excellent work with the commission on insurance, once told me at a meeting in UCD that in Ireland a non-fatal accident was looked on as if it were a visit from a fairy godmother. It meant that tax free resources were to be gained.

There is a problem of striking a balance. In this Bill the Minister seeks to recognise reality or relationships that exist between people and to amend provisions for civil liability. However, the compensation culture is a problem and there are too many ambulance chasing firms of solicitors who are ever willing to offer their services on a "no foal, no fee" basis.

Some firms of solicitors engage in extraordinary practices. I will write to the Minister on a specific case in which a person who was seriously injured engaged the services of an ambulance chasing firm of solicitors. He won a substantial amount of compensation but the firm made no request for an order on costs and reduced his settlement by almost 50 per cent. I have been in touch with the Law Society on the case but, as in most cases when I contact the Law Society, it is impotent to deal with it.

As the Minister said, the Bill extends the categories of dependent persons who may claim under certain headings. The present position is not satisfactory in that it does not recognise that the nature of family relationships has changed. In that it tries to keep abreast of developments in Irish life, the Bill is welcome. The present arrangements have ignored the emotional ties which are built up between people. The present arrangements go back a long time and seem to be extensions of property rights between individuals but do not recognise the human or emotional bonds between individuals. This Bill makes a worthwhile change in that regard.

The Minister indicated that in certain circumstances, most commonly the death of a child, a loss of pecuniary benefits does not arise. However, there remains a problem in this regard, despite this measure. For example, a widow may be funding a son or daughter taking a course in a third level institution. If the child dies in an accident there is no recognition of the future pecuniary loss to the parent. I do not know how that could be incorporated in law. In such circumstances a lone parent looking after a child might look forward to significant income from the investment made in education. There appears to be a gap in the law in this regard and it should be addressed.

Section 1 provides for a humane extension of the law in recognising the role of the wider membership of the family, in particular, that people may not be bonded in a conventional marriage. Section 2 provides for an increase in the maximum amount payable for mental distress from £7,500 to £15,000. It is an error to nominate specific amounts in law but the Minister is attempting a way around the consequent inflexibility. I agree with the principle of including an indicative figure in legislation which may be extended by ministerial order to be laid before the Oireachtas.

The amount of £7,500 for mental distress decided in 1981 was a significant amount at that time, indeed probably more than £15,000 in current values. However, I agree with the approach the Minister adopts in this Bill. It is appropriate that once a figure has been established it can be increased if necessary by ministerial order which would be subject to the approval of the Oireachtas.

Section 4 of the Bill is technical. I am not familiar with the legislation and conventions concerned. I accept the Minister's point about the need to make changes. There is an injustice with regard to compensation claimed as a result of the loss of life through air transport accidents. When the PanAm flight crashed in Lockerbie after a terrorist attack with a horrific loss of life a real problem was highlighted for the families of the victims. The difficulty lay in where and under what jurisdiction the lawsuits would commence. I am not sure whether what the Minister is doing here touches on that. If it does, he might give us the benefit of his views. It strikes me that there is something fundamentally wrong when, if a person loses a spouse or suffers loss as a result of an air navigation accident or, worse still, an act of international terrorism, the location of the crime and the law suit seem to determine the value put on the human life or loss.

We have no difficulties with the Bill. We understand fully why it is being introduced. I commend the Minister. He has been extraordinary in his energy and capacity to bring forward legislation. I am not a lawyer or a solicitor — I was going to say "thank God", but in deference to the Minister I had better not say that; I sometimes say it when I am dealing with solicitors on behalf of my constituents.

I commend the Bill and we will facilitate the Minister in every way.

I also welcome the Bill and the Minister. I congratulate him as I have in the past on initiating legislation in this House. He has initiated five Bills in this House. One of the landmark Bills from our point of view, because we were interested in it and had introduced Private Members' Bills on the area, dealt with occupier's liability. It was one of the more farreaching and important Bills to go through this House over the past three or four years.

This Bill recognises the situation prevailing in society today. It expands the categories of dependent persons who have a right to claim compensation for loss in fatal injury cases and it increases the maximum amount of compensation that may be awarded by the court to dependants who suffer mental distress. The original amount related to a consumer price index figure from 1981. This Bill relates the amount to the 1996 consumer price index. I welcome the fact that the Minister has decided to change the approach to this area. He will be able to make an order to update this in future. One must have continuous updating every two or three years rather than waiting 15 or 16 years. There should be an easier mechanism than an Act of Parliament.

Section 1 recognises society as it is today by extending the definition of "dependant" outlined in the 1961 Act to include persons who, not being married to one another, have been living together as husband and wife for at least three years before the date of death of the other. It means that these people will be able to claim all damages provided in Part IV of the Act, that is, damages for loss of pecuniary benefits, funeral expenses and mental distress.

This is a technical Bill which should be welcomed, but Senator Roche touched on the important areas of compensation and compensation culture. On 25 June the editorial of theIrish Independent dealt with this issue. It reads:

Compensation claims against public bodies, semi-state bodies and, indeed, against private firms, have grown so much and have engendered such a suspicion of attempted fraud that Dublin Corporation, Telecom, the ESB, CIE and Aer Rianta are part of a computer database which they share with 22 insurance companies. This enables them to cross-check claims and find out if the same person has made other claims against other organisations. And it's working. [We welcome that.]

But it raises the question of the "compo" mentality once again, its spread and the attitude of mind which enables an individual to go to court with a claim which has no foundation whatsoever. Even more point was given to this culture when an individual admitted in court that he gave false testimony during a personal injuries claim from which he received £21,000. He was charged with perjury. [He was convicted as late as last Monday or Tuesday.]

There can be no respect for the conman or conwoman who pursues a career involving spurious claims for personal injuries. They cost taxpayers and insurance companies millions and add to the public's overall bills. Yet the Garda has curiously limited powers when it attempts to deal with them.

In the same newspaper Gerry Byrne goes into this area in depth and quotes several cases. He writes:

In one case embarrassed insurance executives discovered a married woman, already the recipient of a sizeable award for minor injury following a staged car crash, had made a second claim for the same injury under her maiden name and had been paid. One woman had made seven claims.

The approach to compensation is out of hand. IBEC has published several reports dealing with employers liability insurance. Their reports deserve detailed analysis. It is my view that Ireland is one of the most litigious countries in Europe. The compensation culture is a cancer eating into our society. It is costing the State in excess of £600 million and thousands of jobs, as detailed in the IBEC report. They have researched the situation and they reckon that thousands of jobs are lost annually and in excess of £600 million spent.

We must ensure that people who have genuine claims obtain their due reward. Nobody is saying that somebody who has a genuine complaint should not be adequately rewarded. However, the system acts against the best interests of the genuine claimant. Such a claimant may have to wait many years for the resolution of his or her claim with its consequent distress, the uncertainty of the level of appropriate compensation and the extent to which this seeks to discourage rehabilitation and return to work. It is important that these cases are completed quickly and people get back to living their lives. It should not be the case that people are advised that if they return to work it might damage their claim or if they embark on rehabilitation or physiotherapy, and if you like become well too quickly, it could damage their compensation payment.

We should deal with this issue by ensuring there is a system to identify fraudulent claims, that the Garda can do so and that there is a speedy outcome to court cases. The insurance costs are out of proportion with our EU competitors. They are creating complications for employers, businesses, motorists and public authorities. As public representatives, we are only too aware of this. Voluntary and sporting organisations are also in difficulties. No area has been spared the paralysis that has accompanied the escalation in litigation. Teachers can no longer send their students to the local shop for a box of matches. Public houses, supermarkets, clubs, hotels and local authorities are open season for claims. The claims epidemic is destroying the ordinary, decent people's enjoyment of society. The playground, where for decades young people enjoyed themselves on swings and slides, is quickly becoming an entertainment of the past because it is almost impossible to get insurance for it. Ryle Dwyer, in hisCork Examiner column of 3 June 1995 wrote:

Yet compensating people for incompetence or carelessness is nothing new in the public sector. It has become part of our compo culture, which is a pernicious threat to our freedom.

Playgrounds in town parks around the country have been dismantled after decades because local authorities can no longer afford the insurance as a result of claims on behalf of children who got injured. In our day if anything happened to you, it was your own fault, but now the local council is blamed and the taxpayer inevitably has to foot the bill. As a result playgrounds are vanishing and public festivities and carnivals are being curtailed.

There is a lot of talk about government accountability these days but everybody should be accountable for his or her own behaviour. Instead, a daft situation is arising in which everybody is being held accountable for the individual's behaviour. If people do not look where they are going and they step into a hole, that is their own fault but the taxpayer ends up paying for those victims of their own stupidity.

Motor insurance premia in Ireland are 98 per cent higher than the European Union. Young drivers are particularly affected in this area. A male aged between 17 and 21 with a full driving licence has to pay an average of £1,791 a year to insure a Ford Fiesta car; it would be much higher with a provisional licence. We cannot even start to justify such prohibitive costs. The situation must be changed.

The passage of the Occupiers Liability Bill through the Oireachtas is a headline and I congratulate the Minister for setting that headline. It represents a fundamental and radical change in this area of law as it existed for 100 years and we must continue to extend the approach taken in the Occupiers Liability Bill which was something that people said for years could not be properly handled. It was handled expertly by the Minister.

Personal injury compensation represents 67 per cent of the claims pay out in motor insurance and almost all claims pay out for employers and public liability insurance. Ireland, to its competitive disadvantage, has the highest personal injury awards of any EU country. Irish claim frequencies and awards are more than twice that of the UK. Part of the problem resides with the legal system and the courts appear to take a lenient attitude to claims, often holding employers responsible no matter what the circumstances. Only one in nine claims going to a court is dismissed and over 90 per cent of them are settled out of court; even when insurance companies feel they have a case they will win in court and are prepared to take it and fight it in court, only one in nine is successful. It appears as if the defendant in such cases is guilty until proven innocent. An employer fighting an employer's liability claim must assume that he is guilty going in and he has to prove his innocence.

Insurance companies settle many claims out of court. The average cost of public liability claims settled out of court is £6,989 and the average award in court is £15,058, almost twice the average settlement outside of court. There is a big incentive for the insurance company to settle out of court because of the average level of settlement you can expect in court. The practice of settling outside the court encourages the escalation of claims because the trauma for the claimant of giving evidence, whatever its context, is not a deterrent and opportunistic claims are encouraged. Most people know that if they make a claim they will not have to give evidence because the case will be settled out of court. There is no deterrent where fraudulent claims are being put forward. The uncertainty as to the level of award appropriate to a particular claim is also a factor. There is urgent need for a schedule of awards to give guidance on appropriate levels. IBEC and the Irish Public Bodies Mutual Insurance Limited have done fantastic research and have many interesting cases which highlight various anomalies in the system and, as public representatives, we have an input in the body. Their views should be listened to. In one case an employee who suffered simply from a blistered hand at work received £1,200. The Law Reform Commission should make proposals to bring the Irish frequency and quantity of awards and consequentially the insurance premia levels in line with our EU competitors.

The New Zealand system of self-insurance should be examined. It is a complicated system where everybody has to insure themselves. If they have an accident, they pay their insurance and the insurance company will compensate them on the basis of the premium they pay. There is no such thing as public liability or employer's liability.

It is important to look at what IBEC has identified as the key elements in the approach to this issue. There are five elements. First, the establishment of statutory guidelines on awards for more infrequent injuries. This would have the effect of reducing and limiting awards and making them more predictable. Measures are needed to tackle the problem of fraudulent and unnecessarily inflated claims. Reform of the duty of care so that, among other things, the concept of contributory negligence is taken into account so that a breach of statutory duty is not a case of action on its own account. They also ask for measures to simplify court procedures and, in particular, to provide for the sharing of a disclosure of information on medical matters, pay, social welfare and financial loss. This would speed up the process. Measures should be taken to restrict legal costs and these costs are often 25 per cent of the total cost of the claims.

The most important thing is to give gardaí the powers to prosecute for fraudulent claims. They have to bring a charge of perjury to get a conviction, as happened with a claim earlier this week. They could not charge them with fraud because the system is not conducive to that. I wholeheartedly welcome the Bill and thank the Opposition for allowing all Stages today.

My knowledge of these matters is limited but I like the overall thrust of the Bill. The Bill refers to compensation which is caused by a wrongful act which is probably a crime. To me, a layman, the nature of the wrongful act is vague. Does it include manslaughter which could be an accident? What about the case of a ferry or an aeroplane in which a bomb had been placed which resulted in loss of life?

The Minister has adopted a more liberal approach in this Bill than in the 1961 Act with regard to persons who are living outside marriage. It can be awkward to determine the type of relationship a person has outside marriage. There is also the question of a person who has not been divorced but is away from his wife and living with another person in a new relationship. In fact, that person would be breaking the law. My point is that there would be a few cases where the first marriage had not been dissolved, there would be a second relationship and there would be children in the second relationship. How would the Minister address that?

People in all walks of life receive compensation wrongly. In a recent case a man who had received compensation fraudulently was before the courts. Without going into that matter, the fees of the legal profession tend to eat up a portion of the compensation, especially when the sum is small. The sum of £15,000 appears generous until legal fees are deducted. Is there any way a set legal fee could be provided for in the Bill? I am sure the Minister heard the story about the man who fell into a hole on a building site. After many months, he was awarded £80,000 or £90,000 compensation. He went to his solicitor and the solicitor gave him £25,000 and said the man had done well. The man asked "Where is the rest of the money?" to which the solicitor replied "It covered my legal fees" whereupon the man said "Was it you or me who fell into that hole?" Legal fees tend to eat up compensation. In these instances, there can be long drawn out negotiations because the Bill provides that a claim can be made up to three years after the death. I would like to see legal fees more transparent so that the person would know how much was involved.

When I began, I said I knew little about the Bill but I welcome it. My party has no difficulty with its progress through the House but we will have a few questions to ask on Committee Stage.

It amuses me to hear stories of solicitors' costs. I would like to know which solicitor managed to get that much money from an accident claim. Usually when you win a case, the insurance company pays the costs and there should not be any deduction from the settlement. That apart, not all solicitors should be tarred with the one brush. Many of us do not make the sums of money we could be making from the profession.

Having said that, it is important to point out that this House passed legislation which curtailed the extent of costs which solicitors can charge on claims in the Solicitors Act. Ours is the only profession which is statutorily regulated to the extent that we can only charge so much whereas barristers, accountants and doctors can charge what they like. For some reason, the solicitors profession is seen to be the big baddy. We are told by law what we can and cannot charge.

I wonder why that developed?

It is interesting because, as a profession, we seem to be targeted unduly.

I gave the Senator an opportunity to make a commercial.

I thank the Senator.

I greatly admire the Minister for Equality and Law Reform, Deputy Taylor, not just because he is a Labour Party Minister but because in his own quiet way he has introduced many valuable pieces of legislation without any fuss and he has introduced so much of this legislation in the Seanad, which we appreciate. Apart from the high profile legislation on the divorce issue, the House has passed the Occupiers Liability Bill, 1994, to which Senator Neville referred, and much family law has been reformed in the past number of years since the Minister took office which has been of enormous benefit to thousands of people.

This Bill is one such piece of legislation. Minor though it may seem. it is of benefit to many people. Simply put, it amends the law in three different areas. First, it increases the limit for damages which can be claimed under the Civil Liability Act, 1961, to £15,000; second, it extends the definition of dependants to include those whose spouses had divorced in a country where the divorce was recognised in this jurisdiction; and third, it allows for the minor matter enabling the Minister to do away with the need to introduce legislation and allow a ministerial order to increase the maximum level of damages hereafter. It may seem simple and straightforward but it is important nonetheless because under common law no death of a human being could be complained of as an injury.

It was only in the mid-1800s that legislation was introduced which accepted that a loss of a family member could give rise to a claim where the fatal death of a family member had been caused by the wrongdoing of another. It was given statutory updating in the 1961 Act, to which I referred earlier. Section 48 (1) of that Act states that where the death of a person is caused by the wrongful act of another such as would have entitled the party injured but for his death to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable for an action for damages for the benefit of the dependants of the deceased. That changed the harsh common law rule which prior to that time had meant it was cheaper to kill than maim. If you maimed somebody, you were liable to a claim but if you killed them, there was no claim. In that sense this is an important Bill.

Having listened to the debate so far, there has been much diversification in terms of the law generally and the present litigious community. I accept that because we have been accused of looking for claims all the time. I often question the validity of some people's claims on the grounds that they may have been negligent. If someone is covered by insurance, they are seen as a sitting duck for any claimant. We must address that problem.

Senator Neville referred to employers liability. I do not know how far an employer must go to protect themselves from a claim. Although it is important to provide a safe place of work, at times one would wonder how much more is expected from an employer. If somebody claims for falling off a scaffolding which they erected themselves or for slipping on a factory floor which has a non-slip surface, what can an employer do? Yet they are liable for such claims in our courts.

Insurance claims in Ireland are high but the way insurance companies operate often gives rise to questions. I do not know how we could change the courts system and limit the extent of damages awarded in certain cases. Perhaps this would reduce insurance costs because a lot of what we hear is propagated by insurance companies, which is not often for the public's benefit.

We must remember that this legislation does not give people the opportunity to make a quick buck. We are talking about families who have lost their breadwinner or a young person and we are increasing their damages to a maximum of £15,000. This legislation is not part of the claims culture. I have attended a number of inquests and in one case the breadwinner was killed by a drunken driver. He abandoned the car, which meant the Garda could not prosecute him. The family had to sit through the inquest and watch that man get off scot-free, while they had lost their breadwinner, their happiness and their future. They had hoped the inquest would have delivered some answers and placed the onus of responsibility on the drunken driver, yet he walked free. This legislation would allow that family to take a claim and to get a maximum of £15,000. However, that money will never compensate them for the loss of their family member.

I welcome the extension of the definition of a dependant in the 1961 legislation. We must recognise that many people live together for many years but do not enter a marriage contract. The definition allows a cohabitee to claim on the death of their partner.

Senator Roche mentioned that pecuniary damages cannot be claimed on the death of a child or young person. I think they can be claimed in certain circumstances, the Minister might clarify that. I accept his point that it should be possible to include them in this legislation because many young people are future breadwinners.

The Civil Liability Act, 1961, needs more reform than we are doing today. It is important to introduce an all encompassing Bill but other areas need attention, such as the parties who can sue and the headings of damages. A lot of work must be done to reform the law in these areas. I am also concerned about the difference between malfeasance and nonfeasance under our civil code. This means that if someone attempts to repair something and they do not do it properly, they are open to a claim. However, they are not liable if they do not try to fix it.

Senator Neville mentioned our claims culture which needs radical reform. We should examine the system in New Zealand which operates successfully and balances redress for wrongdoing with individual responsibility. We are good at knowing our rights but not our responsibilities. We must strike the right balance to allow people to be compensated for their suffering and injuries but not to make a killing, as many people do under the current system. This must be addressed to stop it from getting out of hand.

The law provides for and is available to the rich and the poor. We introduced worthwhile legislation on civil legal aid which means that if a person is on the dole or is not well off and they have a complaint, they can take a case because they will not lose out. If a person is well off, they can go to court and defend their case, even if they are the wrongdoer. However, if somebody is on a low income and they have suffered a wrongdoing, they must think twice before they seek redress under the law because the uncertainty of a claim is a sufficient deterrent. The family will discuss it and say they cannot risk incurring the expense of not winning their case, even if they have suffered a very obvious wrong. We have to recognise that. I do not hear anybody speaking about that but it has come to my attention in the last few years.

Where people have suffered a wrong, or are defending a claim where they have done nothing wrong but the other person is in a stronger position to use the court process, there is a danger they will be forced to agree settlements which they can ill afford and which they would not have to pay if the law operated in the interests of justice. Many people are prevented from seeking redress by their concerns about taking a case. I do not know how that can be tackled. However, it is clear to me that the law is available for the very rich and the very poor, but not for ordinary people. That concern should be looked at at some stage.

I am grateful to the House for the welcome it has given to this Bill. Some months ago I gave a commitment to examine the question of amending the law in regard to damages for the benefit of dependants of people fatally injured. This Bill honours my commitment in that regard. Much of the debate centred on questions which are not quite dealt with in the Bill. Most of the contributors spoke about the "compensation culture". Although it is not addressed in the Bill, I will give a couple of thoughts in connection with it.

It is an expression which is bandied about a great deal in newspapers and debates. There is another aspect to the matter which is not talked about quite so much, and to which the insurance industry and IBEC seldom, if ever, refer. It is what I might call a "safety culture". We do not hear very much about a "safety culture" or about factories, firms, transport authorities or local authorities who pay scant regard to the people who work for them or who use facilities they provide.

If these organisations spent money providing safety in the area of their responsibilities, they would pay considerably less in compensation than they do at present. The truth is that all too often they do not pay sufficient attention to safety. Factory owners have a responsibility to provide a safe environment for the people who work there. They often fail to do that and injuries happen. Often, a breadwinner is maimed and possibly unable to work for the rest of their life. Is that part of a compensation culture or fraud?

Do not talk to me about fraud; that is a separate matter. A fraudulent claim is a crime which ought to be prosecuted and incur the full rigours of the law. We are not talking about fraudulent claims — which are crimes which should be dealt with — but about claims brought before our judges.

In regard to the levels of compensation awarded by our courts, are we saying our courts and judges are not operating in accordance with the law and the Constitution, which guarantees people's rights when their bodily integrity is wrongly interfered with? I suppose judges vary but, by and large, to my knowledge, they operate in a very balanced and fair manner.

People are sometimes too quick to take their information from newspaper reports without the benefit of the full information about the case. An award of £20,000 may seem a huge amount for a particular injury. Senator Neville referred to an award of £1,200 for an injury to a person's hand. Such sums may be excessive or perfectly reasonable, depending on what happened. Perhaps it was a persistent injury which caused great pain and disability for a long period. One needs to know the detail of cases before one can decide.

In my 40 years experience of practising in the courts, I never came across any judge who dispensed largesse or gave out compensation money in a charitable mode. On the contrary, I found the amounts of awards given by judges were very carefully constructed and conservative, if anything. I cannot recall a case where money was liberally dispensed or compensation thrown around in a flathúlach style, quite the reverse.

However, that does not stop IBEC and the insurance industry having their say about it, and Senator Neville referred to many of their articles. For example, Senators will recall they had a big campaign in which they said the cause of all their problems were the juries, which they said were being outrageously generous in the amount of compensation they awarded. We were all subjected to their pressure campaign and their literature. They said that if the juries were abolished everything would be fine because the judges would be very sensible and would reduce damages, which would reduce insurance premia. The Oireachtas responded by abolishing juries in compensation claims. However, instead of damages being reduced, they went up. In other words, our judges, appointed under the Constitution, found the damages which were awarded before by juries were too low. The implication of the statistical findings was that awards were too low.

One has to strike a balance in these matters. The courts do not award compensation just because a person suffered an injury. It has to be proved to the court that there was wrongdoing by the employer, the local authority, the car driver or whoever was involved. Senator Gallagher referred to the case of a man who drives a car when he is drunk and maims somebody. Should proper compensation not be awarded in that case?

Senator Neville said that people who have a genuine claim should get their just reward, which was an interesting word to use. The concept on which the courts operate when they award damages for injury, or whatever, is nothing to do with reward. There is no reward when one gets compensation — that is not the basis for it. The overriding basis of damages is an attempt to restore the person, as far as the law can, to the position they were in before this wrongdoing was done to them. If we are knocked out of our seats in the Dáil or Seanad and are confined to hospital for months as a result of a dangerous, drunken or negligent driver, we would feel aggrieved if our losses and our compensation for the pain and suffering were diminished beyond what they reasonably ought to be. These are some of the factors we must bear in mind. We must have a balance when dealing with these questions. When Senators hear the expression "compensation culture" they should ally it with the twin concept of the safety culture which is required.

This is a subject in which I am interested but it is somewhat at variance with the text of the Bill which deals with two basic points: the first is the updating of the compensation figure for mental distress where a fatal injury has been caused while the second provides for new categories of people. I thank Senators on all sides for their support for the measure.

Question put and agreed to.
Agreed to take remaining Stages today.