Amendment No. 1 is consequential on No. 36 and the amendments may be discussed together by agreement.
Civil Liability and Courts Bill 2004: Committee Stage.
Amendment No.1 is consequent upon amendment No. 36 and remedies what might be regarded as a deficiency in the Personal Injuries Assessment Board Act as passed by the Oireachtas at the end of last year. Section 54(1)(c) of the Personal Injuries Assessment Board Act provides that one of the principal functions of the Personal Injuries Assessment Board shall be to cause a cost benefit analysis to be made of the legal procedures and associated processes, including those provided for by this Act, that are currently employed in the State for the purpose of awarding compensation for personal injuries. While section 54(2) provides that the board shall have all such powers as are necessary, or expedient for, or incidental to, the performance of its functions under the Act, it is considered opportune to provide a specific power for the Personal Injuries Assessment Board to require any person, including a Minister, or a body established by or under any enactment to provide it with any information it may reasonably require for the purpose of this particular function under section 54(1)(c). Subsection 2 imposes a duty to comply with the requirement of the Personal Injuries Assessment Board in this respect. This means that the Personal Injuries Assessment Board can seek a court order against a non-compliant person or body.
Amendment No. 3 is consequential on No. 2. Therefore we will take amendments Nos. 2 and 3 together by agreement.
I move amendment No. 2:
In page 7, line 36 after "24(2),” to insert “any provision of”.
This is a technical amendment which relates to section 1(2) of the Bill. It is designed to reflect the fact that all of Part 2 might not necessarily be brought into operation on the same day and a different provision could be brought into operation on another day. It is quite clearly stated in Part 1, section 1(2) that "This Act shall come into operation on such day or days as the Minister may appoint by order or orders". The Minister is aware that we often bring forward technical amendments which are designed to be helpful and I hope that he sees them in that light.
Amendment No. 3 is quite clear; it seeks to delete the phrase "its commencement" and substitute "the commencement of that provision".
It may save time if I reply at this point that I accept these are meritorious amendments and I thank the Senator for tabling them. I am in consultation with the Office of the Parliamentary Counsel as to the exact terms to be used to achieve that effect. I intend to incorporate the Senator's amendments in a Report Stage amendment or else to accept her amendments. I just want to make sure that it is in apple pie order.
I thank the Minister for his approach.
Amendments Nos. 4, 5, 7 and 8 are related and therefore will be taken together by agreement.
I move amendment No. 4:
In page 7, paragraph (a), line 41, to delete “one year” and substitute “two years”.
This is one of the most important sections of the Bill. We welcome the Bill's overall aim to reduce the number of fraudulent claims. However, I have great difficulty with the prospect of limiting the right of genuine claimants to bring forward cases. The reduction of the limitation period from three years to one year is a matter of grave concern to many people. It is misguided and my amendments seek to change it. Recovery is the main concern of people who have been in a serious accident, which takes time. The first thing on the minds of people who make genuine claims is not putting the claims process in train; it is about getting better. Limiting the timeframe to one year will not give people the necessary time to recover and think about putting a claim forward. The real losers will be genuine people who want to make claims. They are not the ones we have set out to tackle but those who have been making fraudulent claims.
A case in point is the recent situation in Drogheda. I will not name the doctor involved but we are all aware of it. Only five of those women would fall within the 12 month time limit. As matters stand, only about 20 women come within the three year time limit. There are approximately 70 other women who fall outside the three year limit. If we go along with the Minister's proposal we will put in place a system where many people will fall outside the time limit. This would deny people the opportunity to lodge their genuine claims, which is something we must avoid.
We have received letters from numerous interested parties on this matter. I received a copy of a letter from Patient Focus addressed to the Minister. This group deals with women who have experienced medical negligence, particularly in Drogheda. The letter made for interesting reading and brought home the point of how these women need a time limit of at least three years. We suggest a time limit of two years. I realise the timeframe has been significantly reduced over the years, which was a good thing. At one point the reduction was from 20 years to 12 years to six years. However, there is a danger we can go too far, which would be the case if we bring it down to one year.
As the letter from Patient Focus indicated, taking legal action is not the first step. The priority for people in such circumstances is to get better and they may subsequently take legal action. In many cases it can take people months to recover. A year could well have elapsed by the time they get medical reports. A one year time limit could put people at risk. I urge the Minister to examine the timeframe again and increase it to two years to ensure we protect genuine claimants, which is the purpose of the legislation.
I strongly support Senator Terry, particularly her opening remarks where she referred to claims that are not frivolous or vexatious. In most cases, the claimants are genuine. The question of time is important for a number of reasons. In the traumatic aftermath of an injury, either through an accident or due to medical negligence, the first thing people worry about is getting better.
I have a letter from the Law Society, which is a body I am sure the Minister will regard with considerable respect. It described the measure with the following three adjectives, entirely "unrealistic", "unjust" and "unfair". That is the opinion of the Law Society. It is not a lobby group for patients, worthy though those are, but a senior body entrusted with monitoring and looking at the effective application of the law. The letter went on, in particular, to take up the question of victims of medical negligence, about which Senator Terry spoke. It made a number of significant and telling points and I hope in light of them and of Senator Terry's excellent arguments, the Minister will be disposed to look at this again and accept the amendment.
There is something special about victims of medical negligence because under the terms of the legislation they are excluded from the scope of the Personal Injuries Assessment Board. If somebody registers with the Personal Injuries Assessment Board, the clock stops while that is being examined, which gives claimants extra time. People who are taking cases on the grounds of medical negligence do not have the extra time that is afforded to all other cases, which appears to be a serious inequity. The situation for people who are alleged victims of medical negligence gives rise to the whole question, which we went through on Second Stage so I will not labour the point, of access to medical records and so on. It can be a long drawn-out process. It often takes a long time for people to get a clear and definite prognosis of their chances of recovery, what the long-term treatment plan will be and so on. Ironically, because there is uncertainty and they may not have a full grasp of the picture because of the absence of it in these things, there will undoubtedly be a tendency to issue proceedings in a pre-emptive way, so it could paradoxically be that the operation of this time clause would result in more people just shoving in claims. I know that is not at all what the Minister is intent on achieving. For those reasons I am happy to support Senator Terry's amendment. I hope the Minister will look kindly upon it.
I too support Senator Terry's amendment for the reasons already set out. I have also been lobbied, specifically by the "Tipperary Solicitors' Bar Association" in recent times about this particular element of the legislation.
I wonder why.
I wonder why as well. The reaction is an interesting one because the legislation is set against the background of a compo culture, which we know exists.
Fuelled by the legal profession.
The courts are being clogged up with claims. A person will sue if they allegedly fall into a pothole. We have read stories of Dublin City Council being sued for millions. The fact remains that accidents occur and there are genuine victims. I hope the purpose of the legislation is not to penalise people who have been involved in accidents or are the victims of events which were not their fault. If people suffer an injury, they should be entitled to claim. I hope we can look at the issue in that context and the Minister will accept it is the concern of the vast majority of legal practitioners in this country.
I have spoken to a number of legal practitioners in my area who asked to meet public representatives. They made the case that the legislation, as currently framed, would result in an unfair situation for people who have genuine accidents.
A year might appear to be a long time in terms of lodging a claim. I am not a medical expert but I am aware that an injury might not be immediately evident. For example, I had a car accident in 1989 and I am only now receiving physiotherapy for an injury I suffered but which was not apparent at that stage. That is only one instance of an injury which may not be immediately obvious. In such circumstances, a year is not a long period. We must look also at cases involving people seriously injured in accidents who may not be in a position to even consider lodging claims for a considerable period.
I agree with Senator Norris that reducing the period to one year will lead people to lodge claims just in case injuries flare up. They will submit claims because they will believe they might lose out if they fail to do so before the end of a year. Senator Terry's amendments suggest that the period be set at two years, which is extremely reasonable. Two years is not a long period. It will allow victims of genuine accidents to submit claims and ensure that there is no injustice.
I ask the Minister to take a broader view in respect of this matter. I take his point that it is important to amend the law to combat the compo culture. We need to send out a strong message that making spurious or fraudulent claims is an intolerable practice and that everything must be done to combat it. I support public bodies investigating claims to ensure that those of a fraudulent nature are exposed. However, it must never be forgotten that the law is there to ensure that victims can be heard and that fairness will ensue. In our rush to resolve one problem let us not create another, particularly for people who are genuine victims of accidents.
I am opposed to the entire section. However, perhaps the Minister will accept Senator Terry's amendments and I can withdraw that opposition. He has support from everyone in the House in terms of trying to deal with the fact that people put forward exaggerated, whatever about fraudulent, claims. In my profession as a doctor I have said to people, "I am not a lawyer and I hope you will not be relying on what I can do for you in the courts". It is a fact that people bring forward exaggerated claims.
This section could gravely discriminate against people who have been seriously injured and who, by the end of a year, would still be in no position to submit claims. Senator Norris referred to a letter from the Law Society which some other Members also received. I received a letter from Cheshire Ireland which is extremely concerned about this situation. Cheshire Ireland points out that it cares for adults, some of whom were involved in serious accidents, who have significant physical disabilities. The letter also states that frequently people who have suffered grave injuries and have been hospitalised or institutionalised for a significant period are neither physically ready nor in the frame of mind to consider pursuing a personal injuries claim until they have made as full a recovery as they are going to. It further states that in some instances their injuries have not resulted in a diminished mental incapacity but that they are severe in physical terms. It goes on to point out that Cheshire Ireland would be concerned that by obliging these people to take personal injuries cases within 12 months of the date accidents, they will be facing an onerous and exacting requirement with which many of them would be unable and unwilling to deal. I am sure the Minister does not want to see people in such circumstances penalised because the period in which claims can be made is being reduced to one year.
I am also concerned about the fact that this section covers medical negligence claims which are not covered by the Personal Injuries Assessment Board. In my opinion, and that of colleagues in the medical profession by whom I have been contacted, this may lead to an increase rather than a decrease in the number of medical negligence claims. A year is a short period for people to recover, in some instances, from operations or injuries. I suggest that we should not reduce the period to one year because people who have had serious accidents and suffered terrible injuries will be penalised. There are people who might submit claims because they believe they will recover quite well but who will decide to do so because they will believe that if they do not do so, they might run out of time.
As Senator Terry stated, the real substance of the Bill is contained in this section. I support, to an extent, the sentiments she expressed in respect of her amendment. However, we must remind ourselves that this legislation was welcomed by everybody in the House on the basis that something simply had to be done because of the abuse of the system which has been fuelled by members of the legal profession. These individuals have cultivated a profitable industry for themselves in this area and they fought, tooth and nail, against the inclusion of many of the provisions in the Bill from the outset. Having said that, however, I have also received representations from the Law Society and I was sympathetic to some of the arguments put forward, particularly, as Senator Henry and others stated, in respect of medical claims. I refer to claims where people are incapacitated to such an extent that making claims is probably the last thing on their minds.
Most reasonable people would want to ensure that where serious injuries occur, those who suffer them would have a fair way of processing their claims and gaining proper compensation. On the other hand, we must ensure that the many claims that are made without justification will be dealt with in a much more stringent way than at present. The establishment of the PIAB is a good measure in this regard. People in the legal profession have informed me that if they make a claim on behalf of an injured person and if they can have the case heard by a certain judge, they will achieve a better outcome than if the case was heard by a different judge. Insurance companies also try to have cases heard by judges who will favour them. Such behaviour introduces an element of lottery into the system which, in my view, should not be present. The downside of this behaviour is that exorbitant insurance costs have arisen for small businesses and industries. As a result of the escalating costs relating to employers' liability and public liability insurance, people are actually operating without insurance. That is alarming for the public at large and for employees and the type of behaviour to which I refer must be arrested.
I wonder if the one size fits all approach is correct. I would be sympathetic to the Minister reconsidering this matter in terms of what might happen in certain cases where good arguments are made for genuine claims, particularly those involving serious injuries. I do not know if it is possible to distinguish between the length of time it takes for a case to be heard by the High Court, where the quantum compensation being claimed is higher, as against that which applies in the Circuit Court, where a lower figure obtains and where, as a result, smaller claims tend to be heard.
A person stoned out of his mind on drink or perhaps drugs who, when walking down the street, breaks his ankle from a fall caused by a crack in the pavement or a pothole he failed to see should not receive compensation. I am aware of instances where people of this sort have waited three years to make a claim, by which time it is impossible for the defendants to ascertain if and where the accident happened. It is, therefore, impossible for them to mount a defence. We must be careful that we do not undermine the intent and purpose behind the legislation. Perhaps we should consider whether different periods should apply in particular instances. The Law Society and various Senators have put a serious argument for extending the period beyond a year for cases of serious injury, particularly medical injury.
Like my colleague, Senator O'Meara, I am well motivated by the Tipperary Bar association.
I am not motivated by it.
Whatever expression one chooses to use. Senator Terry's amendment raises an important point on which we would do well to reflect and there is much cogency in the argument put forward by Senator Jim Walsh that one may need a nuanced approach. While trying to deal with this we must not lose sight of the strategic function of this and other related legislation, which is to reduce the compo culture and the cost of insurance which is negatively affecting our competitiveness and the viability of jobs and enterprises, substantially in some cases.
We must bear in mind there are two categories of people, the small minority who abuse the law and the system and the vast majority who are generally reluctant to go to law if they can possibly avoid it. These do not instantly think of going to court if they hurt themselves or are injured. Going to court is a last resort for which they are reluctant to opt.
The most persuasive argument for extending the period was mentioned by Senator Norris and others. It is a pragmatic argument. Will reducing the time limit so drastically to one year act as a precautionary and pre-emptive measure or will the advice be given to people to make a claim regardless of whether they want to in case they decide to go ahead with it in the future? If that was to happen, the measure would be counter-productive and instead of reducing the number of claims it would perversely succeed in increasing them.
In some instances people are not sure they should claim. With medical conditions both we and others always live in hope that we will get better and that matters are not as serious as they feel. Unfortunately, we sometimes discover that is not the case and that an injury or condition is not as minor as we hoped. There is a prima facie case to be put and I am interested to hear what the Minister has to say in response.
I am grateful to Senator Terry for tabling an amendment on this matter. I have done a good deal of private soul searching on the issue since the Second Stage debate, which was constructive and fair-minded. As a member of the legal profession I must be careful not to be swayed by arguments which are ad hominem or come from a specific point of view to the exclusion of the public interest.
Taking all of this into the balance, I have come to the view that there is merit in Senator Terry's proposal. The reason I have come to that view is, among others, that the State Claims Agency, which is located in the National Treasury Management Agency, has communicated with me to the effect that it believes the one-year period is, in the case of medical negligence cases, too tough a limitation period. The request to extend the period, therefore, has not just come from groups with what the cynics might think were vested interests or an interest in delaying legislation. The State Claims Agency is a body with no such interests and no axe to grind, yet it has communicated with my Department to state it is worried about the particular provision.
This is a measure which limits access to justice just as any limitation period limits access to justice. There are good reasons for limitation periods. Justice must be justice for the defendant as well as the plaintiff. In any civilised society there must be some point at which defendants can safely assume they will not be sued arising from an incident. This is in the interest of the common good as much as is access to justice. People must know they are no longer, so to speak, under threat.
However, with any statute, whether the Statute of Limitations 1957 or this Bill if enacted, I believe in limiting access to justice on behalf of plaintiffs. There must be strong, coherent and proportionate reasoning behind the limitation. We cannot simply decide it would be great for the insurance companies if the limitation was three months instead of three years because we are dealing with a balance of rights and interests and with different competing interests with regard to access to the justice system.
Although this Bill has gone through a drafting and scrutiny process in the Attorney General's office, it strikes me, when I think about the effect on medical negligence cases, there could be a question mark over its proportionality in constitutional terms, for example, where somebody in the rehabilitation hospital in Dún Laoghaire has one year in which to decide on these weighty matters.
I am not extensively lobbied by the Tipperary Bar association, but its parent body, the Law Society, has also made the point to me that cases of medical negligence are complex and require time to establish the facts. I know from my experience as a barrister that even an enthusiastic solicitor seeking to marshall all the facts and get all the relevant reports will be hard pressed to get much of the material lined up so that the barristers can advise the client, if it is a case that requires advice, on who the appropriate defendant should be and on whether it was the anaesthetist, the surgeon or the hospital who was responsible for the medical catastrophe. Also, obtaining medical reports here frequently requires going outside the country and the laying out of considerable amounts of money.
I pay tribute to members of the legal profession who carry much of the slack in terms of undertaking to pay fees for consultants in cases where there is a considerable risk to themselves that nothing will come of it. Often one must arrange for one's client to be examined by somebody outside the country, arrange trips abroad and join a queue if the client requires examination by a busy specialist in the United Kingdom or wherever. One cannot just click one's fingers and get an instant report from such a person, even in an ideal world.
Having said all that, the reason I find Senator Terry's reasoning attractive is that if we have a general limitation period, it must be generally understood. It must be understood by everybody as a general feature of our law.
I fully accept that Senators Jim Walsh and Mansergh are suggesting that I could introduce nuances to provide different periods and circumstances etc. Medical negligence cases can frequently be married to personal injuries cases. If a medical worker fails to notice that somebody has broken a leg as a result of a motor accident, the potential exists for two linked actions to arise from the same incident. In such circumstances, would it be a good idea for the person in question to have a long period in which to sue the doctor, but a shorter period in which to sue the driver? There might be confusion if different periods of time were provided for the various categories. It would be an artificial arrangement if the last gasp of the plaintiff was to sue the doctor, but not the driver, after 18 months had expired. There would be all sorts of unintended consequences.
I take Senator O'Meara's point that the purpose of the Bill is to reduce litigation. Practitioners who receive defensive legal advice may regard themselves as obliged to commence proceedings against the risk that they will be found negligent, three or four months later, for not having taken such a step. One has the worst of all worlds in such circumstances. On the face of it, one is attempting by statute to reduce litigation, but one is actually stoking the fires of defensive litigation.
I am confronted with a dilemma when I take all of these matters into account. Is Senator Terry's approach preferable to the other possible approach, which is to introduce nuances to these matters and to attempt to put in place more specific provisions in respect of particular circumstances? I am attracted by Senator Terry's proposal because it means it will be generally understood that everybody has to operate within a certain period of time. Her approach would mean that people will not say "I know there is some kind of complex law in this area and I am not quite clear which side of the line my case falls on".
A point made by Senator Jim Walsh also has a certain attraction. He wondered why we do not have a shorter period for small claims, which are not as serious. They tend to involve people who tripped or fell — they may have broken their wrist, for example — rather than patients in rehabilitation centres. A possible problem with Senator Walsh's suggestion is that it would turn small claims into large claims.
One might go to the High Court to get around the problems created by the proposal.
It is relevant to point out that this Bill was published in discharge of the Government's decision to accept the MIAB report, which set out a substantial menu of proposed reforms. One of the proposed reforms involved the reduction of the limitation period and another related to the introduction of the letter of claim, provided for in section 7. The two issues are entirely separate. We need to sift out the cases, such as that referred to by Senator Walsh, in which a person announces that he twisted his ankle two years earlier when he stood in a pothole on Main Street in New Ross or somewhere else. In such cases nobody can contradict the person making the claim because it is far too late to investigate the circumstances. Such cases are addressed by the letter of claim provision. Although the provision does not provide for an absolute limitation period, it ensures that the lawyers involved in a late claim will find themselves at a serious disadvantage. It is a relevant consideration.
I am sympathetic to Senator Terry's argument. I cannot simply accept her amendment on my feet, however, without reverting to my Government colleagues on the issue. I am sympathetic to Senator Terry's approach because certainty is of great importance in this matter. I admit that I contemplated allowing the Oireachtas to fix the claim period on a transitional basis, before moving it. The question of certainty is hugely important, however. The limitation periods we provide for are probably better set as a matter of law. They should not be variable by some resolution of the Oireachtas to delay the implementation of something. I am sympathetic to the proposal, as I have said, and I am grateful to Senators for their reasonable approach to the issue.
I am still of the view that three years is too long a period. If one examines all the cases, one could make an argument for five years on the basis that a period of three years puts pressure on people to arrive at various decisions etc. We have to strike a balance in that regard. I am worried that the proportionality of the one-year period is a serious issue. The last thing any of us, particularly myself, would like to achieve is to end up in the Supreme Court in a couple of years to be told thismeasure constitutes a disproportionate and unconstitutional limitation of the right of action.
I ask Senator Terry not to pursue her amendment on this occasion, but to hold it back until Report Stage, when I will accept it if I am so minded and if my Government colleagues think it is appropriate to do so. Alternatively, I will table an amendment in my name to achieve the same result.