Vol. 164 No. 20
I move amendment No. 1:
In page 5, subsection (1), between lines 35 and 36, to insert the following definition:
"‘a claim of a class' means any claim based on similar circumstances pursued by either a group or by individuals;"
The purpose of the amendment is to seek clarification of the term "a claim of a class". The term is open to a number of interpretations and the amendment aims to draw the Minister's attention to this and to seek clarification.
The amendment proposes to define "a claim of a class". My advice is that there is no need for such a definition. The expression is used only once in the definition of "delegated claim" in section 6. All references of this nature in the legislation are to a class of claims, classes of claims or a class of delegated claims. A class of claims, for example, Army deafness claims or assault claims, is easily understood and would be generally accepted. It was, however, considered necessary to define "a claim" and "a counter-claim" so that there would be clarity in regard to the type of claim and, hence, counter-claims which would be managed by the State Claims Agency, and they are defined in sections 6 and 7.
Why are claims against the governor of a prison or a member of the Garda exempted under section 7(b)? Under the definition of “State authority” is it open to the Minister to prescribe publicly funded bodies such as local authorities or health boards? Are local authorities covered? Can the Minister delegate a claim made by a local authority to be handled by the claims agency? On Second Stage I referred to the large number of compensation claims made against local authorities. The Minister of State will be aware that the local authority of which he was a long-time member made a provision of £6 million for such claims in its estimates, which is a large sum. The local authority is having grave difficulty striking a rate and if that provision for claims was not in the estimates, it would be much easier to do so. Can the State claims agency handle claims against local authorities?
Section 7(j) was amended during the debate on the legislation in the Dáil in recognition of the reserve power of local authorities. Claims against them can be delegated to the agency only following a request from them and with the consent of the Minister for the Environment and Local Government. Any other bodies which may have autonomy under their governing legislation for the way in which they expend their resources will be treated similarly. A request and the consent of the relevant Minister will be required.
Why are a number of exemptions made in terms of claims?
Three types of claims are excluded. The first is application for compensation under the Garda Síochána Compensation Acts, 1941 and 1945. The statutory scheme of compensation has been in operation for many years and there is no reason to disturb the present arrangements, which require application to and awards by the High Court in a majority of cases. The second is claims in respect of alleged assault by a member of the Garda or a prison officer. These are by no means routine cases. In practically every case there are policy and legal considerations to be taken into account and weighed. The advice of the Attorney General's office is required. Its view is that claims of this type should not be delegated to a claims agency.
The third type is claims for compensation for personal injury criminally inflicted on prison officers. Such claims are handled under a non-statutory scheme established by the Minister for Justice, Equality and Law Reform which is operated by the criminal injuries compensation tribunal. It is considered that the scheme is operating satisfactorily and there is no good reason to disturb the present arrangements.
I move amendment No. 2:
In page 9, subsection (3), line 41, to delete "level." and substitute the following:
"level after the special circumstances of any claim or a claim of a class have been taken into account by the Agency.
(4)The Government may advise the Agency when, in their opinion, the special circumstances of a claim or a claim of a class should be taken into account.".
Section 8(3) refers to the lowest achievable level. A number of claims have been made recently against the State by women affected by hepatitis C and haemophiliacs who developed HIV. I am familiar with these claims because they were first brought to my attention in 1989. If the State settles such claims, it has a moral responsibility to be as generous as possible. The terminology in the legislation is not the wisest because it places a legal obligation on the claims agency to settle at "the lowest achievable level". That reference should be excluded and I ask the Minister of State to accept my amendment.
The amendment is not necessary and if it were made it would not have a practical effect. The agency, when managing claims, must take account of the circumstances in each case irrespective of whether special circumstances apply. It is not necessary to make a provision in the legislation such as that proposed in the amendment. There is ample provision in the legislation to deal with any scenario which arises and where Ministers would wish that the agency should be given directions as to general policy or guidelines or to the performance of its claims management function. This is provided for in section 15.
The agency will not deal with cases involving special circumstances such as hepatitis C where a compensation tribunal is sitting and cases involving an autistic child and his rights and the matter of education provision and institutional abuse where the Minister for Education and Science has already announced the establishment of a compensation board. The agency will deal with claims for compensation or damages for personal injury or property damage. They are of a routine and recurring nature and will be dealt with by the agency in an efficient and cost effective manner. I stress it will also do so in a fair and reasonable way.
I reiterate the comment of the Minister of State at the Department of Finance, Deputy Cullen, on Second Stage. He stated: "There is no doubt that cases will arise which involve sensitive issues or where injury has been caused through negligence on the part of the State." I assure Senators that in such cases the agency will deal with claims in a fair and sympathetic manner. I have also referred to directions or guidelines which can be given to the agency should the need arise.
There is general agreement that the present arrangements for handling the type of claims which the agency will deal with are unsatisfactory and that a new approach is needed to put in place a structured and coherent response. Much has been said about the existence of a compensation culture and there is a feeling that the State, that is, the taxpayer, is being ripped off. It is entirely reasonable that the agency should be mandated to manage claims to ensure the State's liability and its own expenses are contained at "the lowest achievable level". I cannot accept the amendment.
I accept that tribunals are dealing with some issues that I raised and they will agree compensation but other claims will be made against the State. I also accept the comment on Second Stage by the Minister of State, Deputy Cullen, that the Government will be fair and reasonable, but, nevertheless, the legislation still provides that claims should be contained at "the lowest achievable level". That sounds rather harsh, to say the least. It is a cold wording. It should not be included in the Bill because, when it becomes law, that phrase will be used in claims and we will hear repeatedly that the State will be obliged, because of the passing of the Bill, to settle claims at the lowest achievable level.
It is important that each case is dealt with in a fair and reasonable manner and that the State is protected from frivolous claims. Some say we are entering a culture of compensation. That is not to say we have been harsh in cases which have arisen in the past few years such as cases involving those suffering from hepatitis C or cases of abuse. That would be the last thing on people's minds. Where claims are made on a regular basis, the aim of the Bill is to try to deal with them in a reasonable and fair manner and ensure the taxpayer is protected. We do not want to appear harsh but we do not want to appear to give way to a compensation culture. Governments have tried to deal as sympathetically as possible with some of the cases the Senator raised.
I am intrigued. The purpose of the Bill is to extend the powers of the National Treasury Management Agency which is responsible for the management of money and related matters. One of the functions of the agency in section 8(4)(b)(iv) is “the provision to such an authority of safety audits, inspections and reviews”. What does that have to do with the National Treasury Management Agency? In each of the subparagraphs in section 8(4)(b), there is a claim to an expertise which the National Treasury Management Agency does not have.
The agency will be proactive in the vital area of risk management. The application of sound risk management principles and procedures should ensure that, over time, the frequency of accidents and injuries will decline. They can never be completely eliminated. One of the tasks facing the agency will be to ensure that Departments have procedures in place to deal quickly and positively with the victims of genuine accidents. Such an approach can often mean that incidents which might otherwise give rise to continual claims and litigation can be quickly resolved to the satisfaction of all concerned.
The NTMA's experience is in the financial area, given that its main areas of activity are borrowing and debt management. I have no doubt that the broad range of financial skills it has built up, supplemented by the specific expertise claims management requires, will enable the agency to perform this new function in an efficient and cost effective manner.
That is not what it states in the Bill. I have limited professional expertise and know what a safety audit involves. It has nothing to do with financial expertise. I also know what safety inspections and safety reviews involve. I am fully aware of the importance of risk assessment and know a little about it.
The proper formulation of section 8 would have been to require the agency to insist that State bodies performed safety audits, inspections and reviews or had them performed for them rather than claiming the agency can do it. There is no reason to believe the National Treasury Management Agency can do this. I am concerned about the fact that the agency will advise and assist and that the advice it may give may include the items listed in section 8(4). That is making a claim the agency cannot meet.
A suggestion or directive should be included that it should find people to provide that advice. It is incorrect to suggest the agency can do it. It has no expertise in this area. I am concerned that the fact the agency is listed as the body to provide such advice will give many State bodies, which are poor on safety and seem to believe health and safety legislation does not apply to them as it does to everyone else, a further excuse not to do what they are already supposed to do under law.
This will be a new separate unit within the agency and the agency will employ the expertise to ensure it can meet the demands of that new unit. One of the tasks facing the agency will be to ensure Departments have procedures in place to deal quickly and positively with the victims of genuine accidents and also to ensure the number and frequency of accidents and injuries will decline because of higher safety standards. It is not the agency as we know it today. This will be a separate unit within it.
I will not delay the House. I wish this had been thought through. It is astonishing there is no reference to the Health and Safety Authority which has a statutory function in this area. Neither does the Bill make it clear, and it should be explicit, that one of the jobs of the agency ought to be to ensure and remind State authorities that they must meet their obligations under the law. What we do not want is the State managing claims on behalf of State authorities at whatever level who ignore their legal obligations under health and safety legislation. The question of the personal liability of individuals within State bodies if they fail to meet their obligations under health and safety legislation is another issue which should be included.
I will not delay the House unnecessarily. I am gratified to hear the agency will recruit staff with expertise in this area. That is not the same as people who are good at risk assessment. Safety audits and risk assessments are not the same.
Section 10(5) states:
The Attorney General may whenever he or she considers it necessary or expedient to do so, for the purposes of subsection (1), give general guidelines . . .
What is the nature of these guidelines? Will they be advisory?
It is important to note that the rights given to the Attorney General under this section are to protect the constitutional role of a legal adviser to the Government, a role the agency will perform on his behalf under section 10(1). The Attorney General cannot divest himself of this role. That is the reason for the rights given to him in section 10(2), 10(3) and 10(5).
Will these be advisory or mandatory guidelines? What effect will they have in law?
They are advisory only.
Section 11(1) states:
A State authority shall–
(a)report any adverse incident to the Agency as soon as may be,
It then gives a list of criteria that have to be followed. If the State authority has to report every incident, we will get bogged down with the number of claims before the agency. Surely it will be possible to settle some claims outside the agency. Why is it necessary to go through this procedure whereby the State authority shall report each incident to the agency? Is no discretion left to State authorities to deal with cases themselves?
This matter is of vital importance. In the past, many claims were settled out of court, for various reasons, perhaps due to negligence by an authority or someone acting on its behalf. I would like to see all incidents reported. From my experience, I have often found it quite difficult to establish what claims had been settled out of court or in committee, and for what reasons. I would like to see claims against local authorities reported. I understand that will be the case, although I hope I have not misread the Bill in this respect. It would be in the public interest because taxpayers' money is involved in providing such cover. If claims are made, premiums increase and we are talking about public finances.
From the experience I have gained over the years at local authority, health board and semi-State body level, I know that many claims were settled out of court. I often wondered whose interests came first as regards the settlement of such claims. I am in favour of claims against authorities, that have to be dealt with publicly, being reported to the relevant agency.
The prompt reporting of incidents and their investigation at an early stage is vital in the success of the claims management process. Such a requirement is standard practice in the insurance world. Far too often claims are not lodged or pursued until long after the incident has occurred, by which stage witnesses may not recall the event or may have moved on. Evidence may not have been preserved and so on. Lack of information surrounding the circumstances of incidents is regarded as a serious impediment in current arrangements in the prompt settlement of claims. There is also the possibility that litigation may not commence until some years after the incident causing the litigation. All these are reasons for putting the agency in the position of being able to conduct its investigation at the earliest possible opportunity and, hence, the requirement on State authorities to report adverse incidents as soon as possible. I am satisfied this is an entirely reasonable and, indeed, necessary requirement.
I understand what the Minister is saying, but surely some discretion should be left to State authorities to settle minor claims without having to report to the agency. After a short while, the agency will get clogged up with all the reports going before it.
If they are delegated to the agency, the agency will deal with them. The whole idea behind the section is that the agency will deal with claims when they are delegated to it.
Minor claims or all classes of claim?
All classes of claim, yes, whatever has been delegated.
I thank the Minister for attending the House today to take remaining Stages of the Bill.
On behalf of the Minister, I thank all those Senators who contributed to the debate. It is generally agreed that the Bill is a good one. While there was opposition to some parts of it, people, in general, accepted that the legislation is not before its time. It will be good legislation when it is enacted.
