I thank the Minister for his response and his recognition of our proposal to increase the limitation period from one to two years. He has approached the matter from both a legal and sympathetic point of view. The purpose of the amendment is to ensure that we do not discriminate against people who may, some time after an accident, suffer from injuries or problems not initially identified or diagnosed at the time of the incident. The Minister's approach is fair and will address the matter. I will take his response on board by withdrawing the amendment and moving it and the others in the group on Report Stage. This will afford the Minister some time to discuss the issue with his Government colleagues. I thank him for taking my concerns on board today.
Civil Liability and Courts Bill 2004: Committee Stage (Resumed).
I, too, thank the Minister for his thoughtful response. I have a question about one group of cases about which I am not clear and, again, they relate to the medical negligence sphere. As the Minister will be aware, the Medical Defence Union and the Minister for Health and Children are in dispute regarding historic obstetric claims. What is the position regarding claims for cases of obstetric cerebral palsy, which do not come before the courts for six years on average?
Senators O'Meara and Terry also raised the case concerning claims made by women in the Drogheda area who for many years did not know they had been injured. What is the position with regard to people with historic obstetric claims or those who do not realise they have an injury until many years after the event?
Senator Henry has raised the questions I wanted to ask. I look forward to the Minister's response and commend him on his open approach to the views expressed in the House and elsewhere on this fundamental element of the legislation.
I seek the Chair's guidance on a matter and the Minister's response thereto. The Minister will return to Government to discuss whether to impose a limitation period of three, two or one years, after which he will return to the House for the Report Stage debate, which is very limited compared to Committee Stage. This amendment addresses a fundamental point, which also arises with regard to later amendments in my name on the pleadings issue and medical negligence. I propose that the House consider adjourning Committee Stage to a later date to allow the Minister to table amendments to later sections of the Bill. In other words, I wish to ensure that fundamental aspects of this legislation, for example, medical negligence, pleadings and so forth, are debated on Committee Stage, rather than Report Stage. I propose, therefore, that we adjourn Committee Stage to a later date to allow the Minister to discuss the relevant matters with his Cabinet colleagues and enable the House to have the widest possible debate on the amendments. If he returns to the House with significant amendments on Report Stage, which I presume he will, debate will be relatively restricted.
I second the proposal.
My suggestion probably subverts all proper procedures. Will the Minister conduct a dialogue, even on the side, with Senator Terry and others interested in this point before tabling amendments? This would in a sense be a halfway house between adjourning the debate and allowing Committee Stage to proceed, while also having an opportunity to explore the issue fully on Report Stage.
I, too, welcome the Minister's helpful and open attitude to addressing the possibility of a real injustice being done in one area and trying to make a complicated issue simpler. I assume that linking the two year limitation period to the date of knowledge will address matters such as latent hurt and so forth, which emerge over the years. That would take much of the sting out of the issue.
I have been particularly impressed by a submission I received from the Cheshire Foundation which explained the difficulties of people in circumstances of this nature. I have a good deal of experience of dealing with medical negligence cases. Most people do not seek legal action but want either an explanation or satisfaction and are driven to action because of the defensive nature of the medical profession and the bodies which represent it on insurance matters.
There is a difficulty in this area and I am happy the Minister is proposing to address it, roughly along the lines suggested by Senator Terry. I hope he can convince his colleagues of the importance of doing so. Otherwise, as the Minister already noted, the outcome could be that people will bang in an action before the end of the limitation period in order to cover all the possibilities.
While closure is necessary, we should seek a means of providing for exceptional cases in which persons acting in good faith come up against medical or administrative bureaucracy which creates a difficulty for them. I found myself virtually advising the other side by recommending that people issue writs because nothing else gets a response. I welcome, however, the Minister's appreciation of the importance of the point Senators have raised.
While I appreciate that certain restrictions apply to debate on Report Stage, as the Chair is bound by the order of the House, I cannot act on Senator O'Meara's proposal.
In response to Senator Henry's comments, it is important to stress that the limitation period is from the date of discoverability not of the injury done. If a medical practitioner commits an act of negligence such as attaching the incorrect internal organ to another, the clock begins to run from the date on which the patient becomes aware of the injury or ought reasonably to have been aware of it and not the date of the operation. That is an important factor.
Senator Henry asked why it takes six years for such cases to come to court. There is a longer gestation period in medical negligence cases. They are complex and involve considerable manoeuvring. The plaintiff's solicitor must ensure he has all his ducks in a row. Expert reports must be exchanged and other documents discovered. All these procedural steps must take place and take considerable time.
I do not defend the imponderable delays of the legal system but I am not shocked that it can take up to five years for serious medical cases to come to a full hearing. I wish they could be heard sooner but such periods are commonplace in medical negligence cases. Procedures are followed with a view to being fair to the professionals involved. If a case is conducted at breakneck speed, it is both unfair to the plaintiff and the defendant that they should be rushed into litigation.
It should also be borne in mind that a practising medical practitioner cannot make himself or herself available for months on end to defend civil proceedings. These cases can be catastrophic in terms of the time involved, psychological pressures and so on. It is not all one way traffic. If one is on the wrong end of a medical negligence suit and one's work is at the mercy of the opinions of one's colleagues, it can be traumatic.
Senator O'Meara stated it would be better if the House adjourned Committee Stage so that we can come back to this issue. I do not know what are the procedures in the House but it is possible to recommit amendments on Report Stage in the Lower House. I defer to the Chair on that matter but, if that is not the case, the proposal by Senator Maurice Hayes to hold consultation in the margins would be another way to approach the issue.
Amendments can be tabled again on Report Stage but the debate is restricted in that Members may only contribute once on each amendment.
I thought amendments could be recommitted. Regardless of the procedure, I will not accept an adjournment of Committee Stage. This issue can be dealt with in a practical, robust way. I could have used the easy, shock tactic of accepting Senator Terry's amendment. She would then not be able to say she wants to think about it again. I want to progress the legislation in a considered manner and not rush it.
The legislation is urgent and I do not want its passage to drift into 2005. I would like to conclude its passage in this House, bring it before the Dáil and return it to the House, if necessary, in July before it is goes on the Statute Book rather than delay its passage. I will be practicable and flexible in trying to achieve that result. It would not be helpful to adjourn Committee Stage so that I could sort out this issue. It would be better if we proceed on the basis I suggest. Nobody will be short-changed in that process.
It is not my intention to delay the House on procedural issues and I accept the Chair's ruling. The business of the day has been ordered but we were not aware the Minister was taking this approach. It is also not my intention to delay the legislation and I accept it is urgent and needs to be on the Statute Book as soon as possible. The House is not in the habit of delaying legislation. Opposition Members have co-operated with the Government in moving legislation along but we also take the approach that fundamental changes to our laws need to be explored as extensively as possible. It is essential, on balance, that the legislation should proceed.
I hope the Minister will communicate his proposals to the party spokespersons following the Cabinet discussions on this fundamental element of the legislation. We should be given plenty of notice of the amendments before Report Stage because we will only have one opportunity to contribute to the debate on them.
I move amendment No. 6:
In page 8, between lines 2 and 3, to insert the following paragraph:
"(c) the insertion in subsection (1) of section 5, after ’disability’ the words ‘or incapacity’,”.
If disability is accepted as a ground for affording a longer period, the legislation should not discriminate against somebody who is incapacitated for a period following an accident or serious illness. For example, an individual could become seriously depressed following an accident and might not be capable of putting his case. It would an injustice if such incapacity were not recognised.
Disability in this context is not similar to disability in other contexts. It has a specific meaning in limitation law, which includes that "he or she is an infant, he or she is of unsound mind, he or she is a convict subject to the Forfeiture Act or that he or she is a victim of sexual abuse suffering from consequential psychological injury". If somebody suffered from a profound psychological condition, which made it impossible for him or her to address the case or give instructions, it would come under the definition of "disability". Disablement in this context means disability from functioning as a litigant and does not relate solely to physical disabilities. I am grateful to the Senator for raising the issue but I assure the House the colloquially accepted meaning of "disability" does not apply.
I move amendment No. 9:
In page 8, between lines 17 and 18, to insert the following subsection:
"(2) The amendment effected by this section shall not apply to actions for personal injuries arising from medical negligence or other actions falling outside the jurisdiction of the Personal Injuries Assessment Board, or to actions for personal injuries which are so serious as significantly to impair the plaintiff's capacity to institute proceedings within one year from the date of the incident concerned.".
This amendment is the last in section 6, which refers to the Statute of Limitations, specifically to the issue of medical negligence. In light of the broad discussion we have had on the issue, I hope the Minister will look favourably on this amendment because it specifically meets the concerns raised by Members.
As the Minister pointed out, the issue of medical negligence cases is a difficult one in respect of ensuring that one has a balance of fairness for the victim on one hand, while also having certainty that all sides are properly represented. As the Minister also pointed out, there can be a high degree of complexity in cases of medical negligence leading to delays in discovering an injury, knowing that one has arisen and was caused by negligence and putting the case together in such instances.
This amendment specifically seeks to address these issues. It seeks that the proposed limitations shall not apply to the actions of persons arising from medical negligence or other actions falling outside the jurisdiction of the PIAB. The second part of the amendment refers to injuries which are so serious as significantly to impair the plaintiff's capacity to institute proceedings within one year. Some Senators have raised the issue of people who have accidents causing them to be hospitalised in a rehabilitation institute for a considerable period of time or to suffer from a brain injury and are, therefore, not in a position to give instruction to a solicitor. This amendment would increase the level of fairness, which I am sure is the intention of this Bill.
I have explained my position in this regard and I do not wish to pre-empt my position further by responding to this amendment. If I take an approach sympathetic to Senator Terry's original amendments on this matter, I would prefer not to start dividing the whole issue vertically. I am not tempted to deconstruct the Bill and provide a very complex law. A simple limitation period is the desirable approach.
Is the amendment being pressed?
No, it is not being pressed today. However, when this amendment comes back it will be a fairly significant amendment to the legislation and because it will be Report Stage, we will not be able to have the broad debate all Senators would like to have. I welcome the Minister's approach and look forward to seeing what he returns with. However, I regret that we are taking the wrong approach in terms of the proceedings of the House.
Amendment No. 10 in the name of Senator Tuffy is out of order as it involved a potential charge on the Revenue.
We had a good discussion on the amendments to the section. I signalled this opposition to the section, which was intended to go for the jugular, shortly after Second Stage before I received any representations on the issue. Cheshire Ireland requested that the period of limitation should be two years rather than one and I am sure the Minister would agree that the organisation is not a vested interest but rather views the issue dispassionately and out of concern for the patients for whom it cares.
I was taken by the Minister's point that there must be justice for the defendant as well as for the plaintiff. A very long time span is extremely difficult for a defendant. I will ensure the Minister's kind words of concern about the medical profession are passed on. I am happy to say I have never had one, but having medical negligence claims hanging over one's head has a terrible effect on people, psychologically and physically and on their careers.
Amendment No. 12 is an alternative to amendment No. 11 and we can take amendments Nos. 11 and 12 by agreement. Is that agreed? Agreed.
I move amendment No. 11:
In page 8, subsection (1), line 19, to delete "2" and substitute "4".
This amendment deals with the letter of claim, to which the Minister referred earlier. The person intending to bring an action has not more than two months to lodge the letter of claim. The section states that the two months should be not later than two months after the date of accrual of the cause of action which, to be clear, I presume means the date the incident actually occurred, or the date of knowledge of the person in respect of the cause of the action concerned.
Two months is an extraordinarily short period of time in which to lodge a letter of claim and this amendment seeks to substitute four months for two months even though four months is also a very short period of time. We know the Minister's intention is to ensure the process is speeded up and that the defendant is made aware of a letter having been lodged. The section also provides that, where the plaintiff has failed to comply with the section in respect of the two months timeframe, there is a considerable penalty. This is a significant and important section and my comments coincide with the intention of the legislation. As the Minister pointed out, we all welcomed the legislation, but the amendment seeks to ensure that it is fundamentally fair. In that context, by any objective standards, two months is a very short period of time in which to lodge a letter.
Two months after the date of knowledge of the incident or injury is still a very short period of time in which to put together a letter of claim. I am not a lawyer but I would have thought that in many cases a fair deal of work would be involved in lodging a claim. Therefore, in order to give the genuine claimant a fair crack of the whip, I would have thought that four months is a better option than two.
I concur with Senator O'Meara's remarks. The most important issue for someone following an accident is his or her recovery period — it is what is foremost in his or her mind rather than seeking compensation or redress. Therefore, we are reasonable to suggest that the timeframe for the letter of claim should be increased from two months to four months. It is still a very short time, but is more reasonable. We must remember that many people, particularly in medical negligence cases, are not just seeking financial compensation, rather they are seeking an acknowledgement that something wrong has been done to them and want to ensure it does not happen to anyone else. It takes people time to even make the decision to lodge a letter of claim and, if it is a wider and more serious issue of compensation, a great deal of data must be collected. We are not being unreasonable in seeking to extend this period from two to four months.
I am opposed to these amendments. The purpose of the section is to encourage those who are contemplating litigation to put the other side on notice at an early stage. If one is being sued for a minor road traffic accident, one is put on notice that this is happening at a time when it is reasonable for one to find the witnesses or put down in writing one's side of the story. In this way, one is given some capacity to defend oneself. Likewise for a doctor in a medical negligence case, if somebody is contemplating suing, the doctor is in a position when the matter is fresh in his or her mind to make a note of what happened rather than have to struggle afterwards to recreate a memorandum of what happened.
I draw to the attention of the House the consequences in this regard. Section 7(1) provides that a person who intends to bring a personal injuries action shall, not later than two months after the date of accrual of the cause of action or the date of knowledge, service notice. It does not affect anybody who is unaware of their situation. Subsection (2) states:
Where a plaintiff in a personal injuries action has, without reasonable cause, failed to comply with subsection (1), [If there is any reasonable cause the consequences in paragraphs (a) and (b) do not apply] the court hearing the action may, where the interests of justice so require . . .
In such instances, subsections (a) or (b) may apply. With the greatest of respect, anybody who knows the general disposition of the court knows that section will not be interpreted in a draconian or unreasonable way. It will only be invoked where the interests of justice require that something be done in regard to the costs because the plaintiff, without reasonable cause, failed to put the defendant on notice that a case was being taken. It is not simply that there was a failure without reasonable cause. It is also that the interests of justice require that the defendant be assisted by the penalisation as to cost issues.
In practice, it will not have a dramatic effect on genuine cases or people who did not get their act together. I do not think the courts would so interpret it. There is every reason to believe the courts will interpret it in a reasonable way. They will say that if a solicitor had a clear indication of the crash or an industrial accident, he or she should have written a letter to the other side stating, for example, that a person dropped a hammer on his foot at work last week and was not wearing protective boots. There is no reason that they should not be alerted within two months of being made aware of it. That is not draconian. Subsection (3) states:
Where a plaintiff in a personal injuries action has, without reasonable cause, failed to comply with subsection (1), the court hearing the action may draw such inferences from the failure as appear proper.
What could be fairer than that? If a person does not notify the other side and allows it to go to one year or two years, there is not a dicky bird out of the plaintiff for 15 months over a two year period and suddenly there is a claim that something happened, the court is being specifically asked to inquire why this matter was not brought to the attention of the defendant in a timely way. There has to be a proper inference from the failure.
It is not just that since one did not do it, the onus is on one to convince the court that something or other should be the case. What it is saying to a court is to be alert to the proposition that plaintiffs must, unless they have reasonable cause for not doing so, alert the other side. It is about getting people to face up to the issue. It is getting away from Senator Walsh's twisted ankle 18 months later psychology, where suddenly the urban district council receives a letter stating that 18 months previously somebody twisted their ankle on a section of road. That is not acceptable in this day and age. It is unfair to the defendant.
Defendants have rights, one of which is to know that a case is likely to come up so that they can get together the foreman who was present on the day, or the witness or foreign visitor who saw the incident. They have the right to hunt down their witnesses as well. The two month period is reasonable. It puts plaintiffs and legal practitioners, because the remedies in subsection (2) are cost based — a matter usually in the minds of legal practitioners — in a position where they have a strong motive to give a clear indication that litigation is in contemplation.
I agree generally with everything the Minister said. However, it can be achieved more fairly in four months. If the amendment suggested one year the Minister would have a case to make. The request that the period in question be extend from two to four months is not unreasonable. I am not a legal practitioner and do not spend time in the courts. I do not know the minds of judges. The Minister appears to have an insight into how the courts will interpret this section. I do not have that insight; I am simply going on what is written in the legislation. As legislators that is what we are required to do. I do not have an insight as to how the courts will interpret the section. They may not interpret the section as the Minister has stated, in which case there will be an unfair situation. I am sorry the Minister is not adopting a more broad minded approach to the amendments.
I am disappointed the Minister has not accepted these two reasonable amendments. We are not talking about the simple twisted ankle. We are taking this much more seriously and looking at genuine cases. We are all agreed on the need to cut out the fraudulent and exaggerated claims. We are dealing with serious cases where people take time and that time should be allotted to them. We are being reasonable in asking for a four month period.
I move amendment No. 13:
In page 8, subsection (2), to delete lines 26 to 29, and substitute "may deduct from any costs payable to the plaintiff such amount, if any, of additional costs as has been incurred by the late service or non-service of a letter of claim.".
This amendment refers also to section 7 and relates to the discussion we had. The purpose of the amendment is to make the deterrent as to costs more realistic. The Minister already referred to the issue of the deterrent as to costs. It is unrealistic to suggest that a plaintiff should not be entitled to any costs simply because they failed to issue a letter within the two month period. A fairer provision would be that they should be at risk of losing any additional amount of costs incurred as a result of the late service of the letter.
I am opposed to the amendment. The additional costs issue would be almost impossible to calculate. This is intended to be a significant incentive to legal advisers to litigants to get on with the job and to put them at risk if they do not send the letter of claim. How could one say extra costs were incurred by the letter arriving in month four rather than month three? One would need to be a philosopher or mathematician to work out the additional burden on the defendant arising from that month's delay. If one wants to recover costs, one has to get on with the job, concentrate on the issue and notify potential defendants. Section 7(2)(a) and (b) are alternatives. Either one makes no order as to costs or makes a deduction from the costs. Most judges would choose the latter. In a brazen case where the defendant has been seriously damaged and there was no excuse for leaving the defendant un-notified, then a person acting for the plaintiff should be at risk of being seriously penalised. This will concentrate the mind of the plaintiff’s solicitor wonderfully.
As a former practitioner, the Minister has probably greater insight, but I am surprised at his remark about the difficulty of calculating the extra costs of the defendant. I think there would be nobody better to calculate the additional costs on the defendant and the defendant's legal adviser than the legal adviser himself. They are good at issuing bills and I do not know any office that does not calculate hours spent on a job, so it should be easy to calculate the additional costs involved. I do not accept that argument.
I will not press this important amendment, but I will re-enter it on Report Stage. The legislation puts the onus on the plaintiff and the Minister refers to the plaintiff's legal adviser, but the Bill refers only to the plaintiff.
Amendment No. 14 has been ruled out of order.
The rules of court are not a matter for us and we have no means of making representation to people who make them. Perhaps in a moment of ultimate boredom, they might even read the proceedings of the Seanad. I was struck by what the Minister said earlier. I hope the rule of court would make it easier for doctors when they are in court. When doctors are in court, they are not treating patients. In another jurisdiction, it was found that the best way of reducing orthopaedic waiting lists was not to appoint more orthopaedists who are in short supply, but to provide through the rules of court for different means of proving the case. I hope that could be borne in mind.
I support that suggestion. This gives rise to medical practitioners charging the same fees as the legal profession in some instances. Fees are very high. As Senator Maurice Hayes rightly said, it takes people away from their duties. Some medical practitioners specialise almost exclusively in court cases because they are more lucrative. We should try to avoid the tendency towards this.
I very much agree with Senators Maurice Hayes and Jim Walsh in this matter. It is terrible that doctors are brought to hang around courts for days on end and then told they are not wanted and sent away. That is a terrible aspect of current practice and could be so easily avoided by proper case management, to see if their presence is needed. Later provisions of the Bill deal with that issue. It is really absurd. We have to get our act together in terms of a legal system. I see no reason a doctor should not be able to put his evidence on video, so that if it is needed it is there. If somebody wants to cross-examine the doctor at a later stage, he or she can be brought to court at a time that is convenient to him or her. The idea of leaving six, seven or eight doctors in a medical negligence case loitering around the corridor in the Four Courts for days on end is simply unacceptable.
I move amendment No. 15:
In page 9, subsection (2), line 20, after "summons" to insert "shall be in such form (if any) as may be prescribed by rules of court and".
This is a technical amendment designed to make clear that the rules of court may specify the form of the summons, provided that the information listed in section 9 is included.
Section 17 of the Interpretation Act 1937 gives powers to rules committees to make new rules in court where a jurisdiction is conferred on a court or an existing jurisdiction is extended or varied. That may cover the point the Senator is making, but if it does not, I will look at the matter between now and Report Stage.
I move amendment No. 16:
In page 9, between lines 37 and 38, to insert the following subsection:
"(3) A Statement of Claim shall not be required in a personal injuries action in the High Court and a defendant shall join issue on a personal injuries summons by delivering a defence thereto within twenty-one days from the service of the personal injuries summons.".
Under this Bill the personal injury summons will contain all the information which is currently contained in a statement of claim and, accordingly — this is the intention of the amendment — the Bill should make clear that a statement of claim is not necessary. I think it will appeal to the Minister because the Bill is very strong on time limits for the plaintiff and as the Minister has pointed out, on more than one occasion this morning, it should correspondingly specify a time limit for the defendant to deliver his or her defence.
The statement of claim would not be, in my view, required after the new summons is served. It is for the Courts Service to amend its own rules and to provide that a separate statement of claim is not so required. These are rules of court and I do not think it is necessary for me by statute to start making provision for what should be in the rules.
I agree with the Minister, but will the Courts Service do that or will he prompt them?
I have great faith in the service and I believe it will recognise that it will be entirely redundant to require people to put the same material in two separate documents and that they should therefore amend the rules of court to state that the period for defence runs from the service of the new summons rather than the statement of claim, which is now involved in this type of litigation.
I move amendment No. 17:
In page 10, subsection (1), line 10, after "with" to insert "the following information so far as it is known to him or her".
Some of the information referred to in this section, for instance, medical particulars under section 10(1)(c) would not necessarily known to a plaintiff and, accordingly, it seems appropriate to make clear that only the information known to the plaintiff is to be provided pursuant to this section.
There is a rule of construction which is enshrined in the Latin maxim ad impossibile nemo tenetur — nobody will be required to do the impossible. If one does not know something, one cannot supply the information. I do not think a reasonable interpretation of the section could be that somebody was in breach of its provisions in respect of something they could not know. It is already implicit in the section that the information is only information that is available to a person and of which he or she has knowledge.
I will accept what the Minister says.
I move amendment No. 18:
In page 10, between lines 21 and 22 to insert the following subsection:
"(2) Upon the request of a plaintiff in a personal injuries action, the defendant shall provide the plaintiff with full particulars of any matter alleged in the defence of the defendant and such other information as may reasonably be requested by the plaintiff within the knowledge of the defendant including full particulars of the plaintiff's earnings where such earnings were paid by the defendant, during such period as may be specified by the plaintiff.".
This is designed to correct an imbalance. The section is imbalanced in that it provides for particulars to be furnished by a plaintiff and not by a defendant. The amendment is designed to redress that imbalance. For instance, where a plaintiff was formerly employed by the defendant and the defendant failed to make available adequate payroll information. This amendment seeks to redress that type of omission.
There is provision in the present rules of court for particulars arising out of any pleading to be served on the party who has served that pleading so a defendant is obliged to provide particulars of any matters stated in the defence. The Senator is going one stage further, that sometimes the plaintiff may require information from a defendant such as to their earning or so on. This is normally dealt with by letter and if the defendant does not come up with the goods so to speak, the court would take a very poor view of it. Sometimes, when one is a defendant in proceedings, if one simply says that one was not negligent, one is putting the matter at issue. One cannot ask someone to say why he or she was not negligent. There is a danger of people thinking that justice must be symmetrical. The onus of proof is on a plaintiff. The defendant, therefore, need not prove or disprove anything, except some positive assertion that he or she is making.
Second, the whole process is not symmetrical, in that the plaintiff seeks damages from the defendant. In general terms, the latter does not seek anything from the plaintiff. To ask a defendant to particularise a defence on the basis that the plaintiff may be required to do so assumes there must be symmetry between two situations which are fundamentally asymmetrical. If one is a large-scale employer, one simply may not know much about how an accident is supposed to have taken place. To be inundated with letters demanding that one set up one's defence in such circumstances is not the same as asking the plaintiff to do the same for his or her claim.
If, at the end of any civil proceeding, the court is left in the position that it simply does not know one way or another what the situation is, matters are not decided on a 50:50 basis. The plaintiff must lose, since he or she undertakes to prove things on a balance of probabilities. If something is left in doubt, the defendant should win. That is a principle of our civil law. In this case, to ask a doctor in a medical negligence suit, for instance, to give particulars of the reasons that he or she was not negligent is effectively to change the onus of proof, casting on the doctor the obligation in those circumstances to begin to justify all the actions taken. The doctor is not brought before the court to justify anything. Our system is that the plaintiff must prove matters on a balance of probabilities. It is not a system in which the doctor is told to prove that he or she was not negligent. That is not how our system works.
I will consider what the Minister is saying.
I move amendment No. 19:
In page 11, subsection (1)(d), line 18, after “alleges” to insert “and full particulars of the acts of the plaintiff constituting any alleged negligence or contributory negligence”.
This amendment makes a similar point, so I do not expect that the Minister will accept it. However, it concerns the requirements of a defence, which are more limited in this Bill than in the case of a personal injury summons. The amendment proposes that the defence should set out particulars of contributory negligence, for instance, in subsection (2)(e), which requires such particulars, but only in a counter-claim. Those particulars should be required in a defence which alleges contributory negligence.
Such particulars can be sought under the existing rules of court. However, in very many cases, it is difficult for a defendant to particularise a claim of negligence on the part of a plaintiff. If, for instance, an employee puts his hand into a machine, the defendant, the employer, may say that he was guilty of negligence. However, if one asks him to say exactly why the employee was negligent in putting his hand into the machine, suddenly there is an almost philosophical problem from the defendant's point of view. He was not there, did not see what happened, and does not know precisely why the employee was negligent, but his hand went into the machine. That is how things happen. I will re-examine the issue to see if I am being guilty of unfair discrimination in that regard, but my current temptation is to take the view that, in the rules of every court, there is a procedure sufficient to allow particulars to be obtained by the defendant where necessary and where it is reasonable to expect the defendant to have them.
Is botún soiléir é seo.
I comment at the request of the Tipperary Solicitors' Bar Association, which points out that section 12 proposes to require all plaintiffs and defendants to lodge every proceeding in court. That was the procedure up to approximately ten years ago, when it was changed, having been found to be too onerous and time-consuming for plaintiffs and defendants and to lead to unjustifiable extra expense in personal injury actions. It also required far more work to be carried out by the court staff in dealing with each document. The present requirement that legal papers be lodged in the court when the matter is set down seems to be working well for plaintiffs, defendants, practitioners and court staff. The question is why the Minister has gone back in time, for want of a better phrase, in this regard. Perhaps he might comment on that.
I have recently discussed this with the Law Society. The reason is to make it very clear what the pleadings were in a case and, in the next section, relating to the verifying affidavit. It is for the purpose of policing the false claims provision. When a plaintiff brings a claim against a defendant, there will be an official record of what he or she claimed and an official repository of the affidavit, so that people cannot claw it back or settle the case and get their files back from the other side. It is a policing mechanism to ensure that somewhere there will always be a full record of what someone has claimed in a personal injury action. There will be evidence of the making of the verifying affidavit so that people afterwards are in no doubt about where something is and whether it is in the office of someone's solicitor. We do not want a situation where the defendant will effectively be under some form of obligation to keep documents which might later be of use in policing the matter. We want a centrally stored set of proceedings and a verifying affidavit so that if there is any doubt afterwards concerning what the pleadings were and what the affidavit said, it is there rather than lost in some office.
That is understandable. The logic is clear, but is there currently a problem?
No. What the Law Society said is correct. It is turning the clock back, since all pleadings used to be lodged in files, and it was considered that, in most cases, that was a waste of time as the interested parties could be relied on to keep an eye on each other in any litigation. However, in the context of this new, fairly tough regime whereby, if one makes a false claim or swears a false affidavit, one exposes oneself to a statutory penalty of ten years' imprisonment, we want a clear, official record of what the person claimed, and clear, official evidence centrally available that the person swore an affidavit in certain terms. We do not want a defendant to have lost the file or left it under the cat's bed in the corner of the solicitor's office so that the whole matter simply evaporates.
I may return to that on Report Stage. While the Minister is making a very logical argument, if it is not broken, why fix it?
It is broken.
Is there a problem?
We have had many people chancing their arm in pleadings who bring cases to the door of the court and when confronted with the fact that they will be exposed, they simply walk away from the matter. What is important under this new regime is that it will not be a matter of walking away or the defendant not pursuing the issue in the circumstances. There will be an official record so that afterwards — even years later — a plaintiff or the Garda Síochána, when alerted to a false claim, would know where to go to find the papers.
I move amendment No. 21:
In page 12, subsection (4)(a), line 45, to delete “7 days” and substitute “one month”.
Amendment No. 21 is straightforward. The Minister refers to a tough regime in this legislation. That is fair enough. However, once again let us not have it so tough as to be unfair. I am not a lawyer, as I keep saying, but I would have thought that to swear an affidavit is a serious matter. One needs to be absolutely sure of what one is swearing, that every fact is checked and so on. These matters may need time. Seven days is too short in that regard. The object of the amendment is to substitute "one month" because seven days is too short.
I have had representations from the legal profession to the effect that much documentation is involved and the time period is considered too short. Naturally enough, I would be interested to hear the considered opinion of the Minister, with his legal background, on this point.
I will consider whether seven days is too draconian. However, the section in its entirety is not draconian because it states that "7 days after the service of the pleading concerned or such longer period as the court may direct or the parties may agree". There is a good deal of flexibility there. Legal people usually are reasonable with each other. They do not want to go to court and get a direction. They will concede that it may be submitted later. If seven days is considered too short, however, I will have a look at it between now and Report Stage.
I move amendment No. 22:
In page 13, between lines 3 and 4 to insert the following subsection:
"(5) The court concerned may enlarge the time for lodgement of an affidavit under this section for sufficient reason.".
Amendment No. 23 is related and refers to enlarging the time for lodgement of the affidavit, for sufficient reason.
That is already covered.
I move amendment No. 25:
In page 14, subsection (5), line 14, after "conference" to insert "or any records thereof".
This is a technical amendment to include something which we believe is a serious omission.
I will have a look at it, but I am not sure that it is not already implicit.
I move amendment No. 26:
In page 14, subsection (1), line 22, to delete "court," and substitute "court".
This is also a technical amendment.
This is a point on which I would resign as Minister if I had to back down on it. It is a comma. If it were accepted, the next comma would have to be deleted as well, so I am not accepting it.
Deleting two commas instead of one is surely not a resigning matter for the Minister.
I move amendment No. 27:
In page 14, subsection (1), line 22, after "concerned" to insert "and the parties to the action".
In the interest of fair procedures, the objective of this amendment is that any report submitted to the court must also be distributed among the parties.
The amendment appears reasonable and I will consider it for Report Stage.
I move amendment No. 28:
In page 14, subsection (1), line 23, to delete "include" and substitute "state the following but not any other details of the contents of a mediation conference".
As the section is currently drafted, it does not expressly prohibit the chairperson of a mediation conference from informing the court as to why agreement was not reached. I would suggest that this is a vital component of a mediation process. If the details could be given to the court, the mediation process would never get off the ground. Accordingly, we wish to make clear that no details may be given to the court other than those specified in the section.
I know where the Senator is coming from, but I am reluctant to accept that this amendment is necessary. I will consider the matter further and return to it, if necessary.
I move amendment No. 29:
In page 14, subsection (2)(b), line 37, after “action” to insert “unreasonably”.
This amendment is being tabled in an effort to be helpful, to make it clear that there may be circumstances where a party might reasonably decline to attend a mediation conference.
The point about this is that the court has directed it should happen. Therefore, if the court requires people to do "unreasonable things", where are we? I do not believe it is necessary to include it. If a court directs one to attend a mediation conference, to say, in effect, that one now has reason not to do so suggests that one may disobey a direction from the court on the grounds that one subjectively believes oneself to have good reason to do so. I am not attracted by that idea.
Amendments Nos. 30 and 31 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 30:
In page 15, subsection (7), line 28, to delete "order of the Minister" and substitute "rules of court".
Both amendments are designed to preserve the integrity of the rules of the court system. Dates for lodging pleadings and proceedings are normally specified in rules of court, which are made by a rules committee. The Minister may have referred to this already. The Bill, as currently drafted, would bypass the system and allow the Minister, by order, without reference to the rules committee, to override rules of court. That is why we tabled the amendment.
They were deliberately drafted in that way.
May I ask the Minister why?
At present rules of court are devised by autonomous committees and I have to countersign them. However, I have no right of initiative in these matters. I want to create a right of initiative for the Minister as regards these time periods. I do not want to be totally reliant on the rules committees in arriving at a set of time periods.
This is similar to the matter raised in an earlier amendment. Is there currently a problem and the Minister needs the power of initiative in this regard?
I do not want to be in any way dismissive of the rules committees because their members are mainly volunteers and they work hard. However, sometimes there are areas where the Minister should have the power of initiative, as opposed to waiting until something is done and then signing off on it. This is one of those cases. I do not want to make any broader observations on the rules committees. However, it was considered sensible that in this particular area the Minister should have a separate power of initiative.
I am not convinced. I will withdraw the amendment, but I will consider resubmitting it on Report Stage.
I had the opportunity to meet with and address the Joint Oireachtas Committee on Enterprise and Small Business on two occasions last year. In the course of those discussions it was clear the committee wished to ensure the courts had regard to the Book of Quantum being prepared by the Personal Injuries Assessment Board. This has become very topical because a Book of Quantum is emerging. In the report it published last year the committee made a direct recommendation on that issue. I indicated at the time that I was receptive to the idea and this section is a response to the committee's recommendation. Section 54(1)(b) of the Personal Injuries Assessment Board Act 2003 makes it one of the principal functions of the board, “to prepare and publish a document (which shall be known as the “Book of Quantum”) containing general guidelines as to the amounts that may be awarded or assessed in respect of specified types of injury”. It appears logical that the courts should have regard to this Book of Quantum in assessing damages. There is a precedent in that there was a guideline for the Army deafness claims. It is not mandatory, a court is free to disregard it if it wishes but it asks courts to have regard to the Book of Quantum.
If one is a judge in a Circuit Court in Tipperary town, with counsel from both sides addressing a case, and one is trying to decide how much a broken leg or hand is worth, it is useful at least to have a document which addresses that issue. It may be that the judge in his or her independent judicial function regards it as low or high in the circumstances of the particular case but it is in the interests of uniformity in the administration of justice that there should be some general document available to which the Judiciary can have regard, even if it is not strictly legally bound. Subsection (2) makes it clear this is not an exhaustive procedure or that the court cannot have regard to matters not covered by the Book of Quantum. It is a serious advance in an effort to bring consistency if not uniformity to the question of damages.
Will there be provision made to have the Book of Quantum reviewed periodically? Should it be reviewed annually or is there any provision to review it? It appears the Book of Quantum could remain in place without being reviewed for five years or more.
I take it the Book of Quantum is drawn up under the Personal Injuries Assessment Board Act. I agree with the Minister that some degree of order and certainty is welcome. The phrase "The court shall in assessing damages in a personal injuries action have regard to the Book of Quantum" suggests that it is required to have——
It is to have regard to it, not to follow it.
I am not a lawyer, that is why I need clarification on these matters. When I see "shall" I assume it is directive but "have regard to" simply means to take it into account and not be obliged to follow it. If judges are required only to have regard to it why is it necessary to put that in the legislation?
I want to make it clear to judges that they are expected to have regard to the contents of this Book of Quantum, that it is their legal duty to have regard to it and to consult it. I do not want a price list that is invariable in every case which counsel could consult and say a case is worth a given amount and that is it. Injuries vary from case to case, for example, a broken ankle can be very serious or less so.
It is beyond the wit of man and woman to devise an exact scale of damages in these matters. Early legal systems attempted to do it. In ancient Rome a man discovered that the liquidated damages for assault under Roman law had been rendered ridiculous by inflation so he went around striking people in the face and directing his slave to hand them the sum that was in the book of quantum in that system. That was the end of the matter.
This is a major new step. It would be unlawful for a court to decide damages without having regard to the Book of Quantum, but it would not be unlawful to deviate from it. The High Court, on appeal from the Circuit Court, would be in a position to ask why was there a departure from the Book of Quantum and if there were grounds to justify it. It is an effort to bring consistency but not uniformity into the application of the law.
This is an eminently sensible measure which will bring a certain element of consistency to awards of damages in an area where there is a significant degree of inconsistency depending on which judge is hearing the case, which should not be so. While we are establishing this the Personal Injuries Assessment Board must have regard to this Book of Quantum which will be the Bible for it in adjudicating on cases. It would be inconsistent to have the courts adjudicating on a different framework. While allowing for judicial discretion is good, if the Book of Quantum did not exist solicitors and others may encourage people to go to court. This will introduce some form of predictability in situations which in turn will make the PIAB system work better and prevent people seeing this as a cash cow and going to court on such issues. The House should fully endorse this.
I agree this is eminently sensible. There are various degrees of severity of a broken ankle but the person's occupation should also be taken into consideration. For example, if I lost the tip of my little finger it would be very sore and upsetting for me but it would not be the same as for a concert pianist.
I have compared awards given by the courts here to those given in the United Kingdom. Are they mean and are we flathúlach, or do we suffer greater anguish when we are injured because the awards for similar injuries here are much greater than those given in the United Kingdom?