Seanad Éireann debate -
Wednesday, 15 Nov 2017

Vol. 254 No. 4

Civil Liability (Amendment) Bill 2017: [Seanad Bill amended by the Dáil] Report and Final Stages

Acting Chairman (Senator Diarmuid Wilson)

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 148, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For the convenience of Senators, the Cathaoirleach has arranged for the printing and circulation of these amendments. The Minister will deal separately with the subject matter of each related group of amendments. I have also circulated the proposed grouping in the House. A Senator may contribute once on each grouping. I remind Senators that the only matter which may be discussed are the amendments made by the Dáil.

I welcome the Minister, Deputy Flanagan, and call on him to speak on the subject matter of the amendments in group 1.

Question proposed: "That the Bill be received for final consideration."

Minister for Justice and Equality (Deputy Charles Flanagan)

I thank the Acting Cathaoirleach and I am pleased to be here to discuss a number of Dáil amendments, most of them technical in nature. I note that the Acting Cathaoirleach has, for the purposes of this debate, divided the amendments into three groups: amendment No. 1 on its own; amendments Nos. 2 and 3 together; and amendments Nos. 4 to 10, inclusive, together. I take it that is agreed.

I hereby introduce Dáil amendment No. 1 and refer the Seanadóirí to section 51(j) on page 9 of the Bill as passed by Dáil Éireann. This provides that a court may only make a periodic payments order where it is satisfied that the continuity of payments under the PPO is reasonably secure. Subsection (2) sets out the matters which the court shall have regard to when considering whether the continuity of payments is reasonably secure.

I tabled this amendment following a request from the Motor Insurers' Bureau of Ireland. The bureau noted that when similar legislation was introduced in the UK some years ago, its equivalent organisation, the Motor Insurers Bureau, was not specifically designated as being "reasonably secure". This, unfortunately, led to a situation where the Motor Insurers Bureau, UK, had to provide evidence to the court in each case where a periodic payments order was proposed for an MIB claimant to establish that payments made by the MIB under a PPO would be "reasonably secure". This situation gave rise to increased legal costs for the MIB, which were, as is of course always the case, passed on to motor insurance consumers.

It also had the effect of delaying the introduction of PPOs for claimants under the MIB scheme. Following discussions with other stakeholders, including the State Claims Agency, the Minister for Finance, the Minister for Business, Enterprise and Innovation, and the Minister for Transport, Tourism and Sport, I am satisfied that to avoid the issues that arose in the United Kingdom, we should make an amendment to this Bill that will clarify that payments eligible to be paid by the Motor Insurers' Bureau of Ireland are regarded and defined as reasonably secure for the purposes of the making of the order.

On grouped amendments Nos. 2 and 3, amendment No. 2, concerning indexation and the periodic payments, states: "In page 11, line 13, "may" deleted and "shall" substituted." The effect of amendment No. 2 would be to make it mandatory for subsequent reviews of the index applying to periodic payments orders to be carried out five years after the previous review. This amendment was proposed by Deputies Clare Daly and Mick Wallace. I can see the merits of the amendment and I agree that a mandatory review provision would, in the circumstances, be advantageous and beneficial.

With regard to amendment No. 3, the new section 51L deals with the issue of indexation of payments. The section provides for the annual adjustment of a payment under a periodic payments order in line with the prevailing rate under the harmonised index of consumer prices, HICP, and provides for a review of the application of that index after a five-year period. Section 51L(4) provides for the making of regulations where a review of the prevailing index has concluded that an index other than the HICP would be more appropriate for use in catastrophic injury cases. This amendment, which was also proposed by Deputies Daly and Wallace in the Dáil, would make it mandatory for the Minister to make such regulations. Again. I can see merit in the proposal. It makes sense to me that if an alternative index were considered more suitable for use in periodic payments orders, the Minister should be required to make the necessary regulations, subject, of course, to the consent of the Minister for Finance.

Group 3 comprises amendments Nos. 4 to 10, inclusive. Amendment No. 4 is a technical drafting amendment. Part 4 concerns open disclosure. Amendments Nos. 4 to 10, inclusive, are technical amendments to sections 16, 17 and 19 to include commas in some places, merely for consistency. Amendment No. 5 is merely a technical drafting amendment, whose purpose is self-explanatory. Amendment No. 6 is a technical drafting amendment on page 32 and it concerns section 17. Amendment No. 7 is similarly technical, as are amendments Nos. 8 to 10, inclusive.

Question put and agreed to.

Question proposed: "That the Bill do now pass."

Minister for Justice and Equality (Deputy Charles Flanagan)

I acknowledge the co-operation of Seanadóirí, particularly their engagement earlier in the debate. It is important that we re-emphasise the reasons this Bill was introduced. The courts award damages for personal injuries to try to ensure the injured party is put in the same position as he or she would have been in if he or she had not sustained the wrong for which he or she received compensation. At present, damages for personal injuries in catastrophic cases are paid by way of a lump sum. The Working Group on Medical Negligence and Periodic Payments identified deficiencies in the lump sum system as it applies to persons who have suffered an injury that might be described as catastrophic. In this regard, the group recommended that, to address those deficiencies, legislation should be introduced to enable the courts to award damages in catastrophic cases by means of periodic payments. The Civil Liability (Amendment) Bill 2017 seeks to address the issues raised by the working group.

Although the Bill is short, its provisions are somewhat complex. The Bill grants courts the power to make periodic payment orders in cases of catastrophic injury, provides that payments under periodic payment orders are secure and will last for the lifetime of the injured party, provides that payments will be indexed initially in line with the HICP, provides for a review of the index after a five-year period, provides for the treatment of periodic payments in bankruptcy, and provides for the treatment of periodic payments for income tax purposes. The Bill also contains detailed provisions on the issue of open disclosure of patient safety incidents.

Unfortunately, things sometimes can and do go wrong in health care. I believe that we all share the view that when this happens, patients should feel supported by the health system and should at all times be given appropriate and proper information. The open disclosure provisions in the Bill will go some way to ensuring that a culture of safety and openness is firmly rooted in our health service and that the health service can learn from mistakes to make the service far more safe for patients.

This Bill, which allows the courts the power to award periodic payments in cases of catastrophic injury, is extremely important. It will ensure that people who have been catastrophically injured will receive the care and assistance they require during the course of their lives. I thank the Seanadóirí for their input on this important legislation.

Senator Lorraine Clifford-Lee

I thank the Minister for attending for the passage of this important legislation. As a practising solicitor, I can see the merit in it. It was about time something like this was provided for. Quite often, lump sum payments are made and do not have an actual benefit for the claimant. This is an absolute travesty and we have corrected that this evening. I thank the Minister for co-operating with Members of this House and Opposition Members in the Dáil to allow them to have a real input into strengthening the legislation.

Senator Michael McDowell

I, too, thank the Minister for being present today. I am very glad this legislation has gone through the legislative process and has been passed. I fully accept its underlying logic. When I was in the Minister's position, it often occurred to me that such legislation should be passed. Curiously, in those days the insurance industry seemed to be the biggest opponent, for some reason. I believe it was afraid of it and preferred at the time to have a file marked as finished and completely dealt with. Obviously, circumstances have changed in the meantime.

When someone who is catastrophically injured gets his lump sum, it is supposed to do him for the rest of his life, so to speak. Sometimes, unfortunately, the individual dies very shortly thereafter and, under existing law, the fund itself is distributed among the individual's heirs or on intestacy. That will cease now. That makes perfect sense and I have no problem with that.

It does strike me, however, and maybe this is a matter for another day, that while we compensate parents and siblings sometimes in the event of a death to the limit provided for in the Civil Liability Acts, whatever that limit is now, it is somewhat strange that somebody who is in that position will not get any compensation whatsoever for seeing his or her loved one, be it the husband, wife, son, mother or whoever, reduced to a catastrophically injured person and then dying subsequently. There is no compensation at all for that if it does not happen within the limitation period. Perhaps that is something that some law reform Minister will have to think about at some stage in the future. In the past the residue of the money frequently went to compensate the relatives, which was too much probably.

Deputy Charles Flanagan

Oftentimes it was not intended.

Senator Michael McDowell

Exactly. On one occasion I remember meeting somebody who in very strange circumstances seemed to have a lot of money. He looked at me and said that he knew what I was thinking, that being, where he got the money from. He went on to explain that a situation like this had actually happened. It is an issue that dependants, within the meaning of the Civil Liability Act, of a catastrophically injured person will get nothing under this system. Perhaps they should be put on the same pedestal as somebody who has suffered a death because very frequently the consequences are worse for the relatives than an immediate death. I congratulate the Minister on getting this through and I am glad it is becoming the law.

Senator Niall Ó Donnghaile

I thank the Minister for attending today and I commend the passing of this legislation. I reflected on the earlier debates on the Civil Liability Bill and I do think the amendments have strengthened the legislation. I commend those who have moved and, as Senator Clifford-Lee mentioned, the co-operation and understanding between parties and between the Government and Opposition in trying to progress what has been in many ways an anomaly for all of the reasons that Senator McDowell outlined. We have all said thus far, and I am sure we all accept and concede given the passing of this Bill, that the system thus far has not always been appropriate or ideally suited to those who were in receipt of the lump sum payments. These periodic payments will be more appropriate and much better suited to the needs of patients and people who have suffered those catastrophic injuries as outlined. It is important and positive legislation that will make a direct and tangible impact on people's lives for the better. I thank the Minister, the officials and all those who strengthened this legislation.

Senator Martin Conway

There is little for me to say that has not been said. It is good to see this legislation. It will impact very directly on the lives of people who have been injured. It also brings us into line with best international practice. The idea of a lump sum, shut, done and over with in a case does not really reflect the ongoing needs. The complex, difficult and challenging medical needs of a person with a catastrophic injury could require significantly more resources to deal with it in ten years. When payments are made, we are relying on trustees and people behaving appropriately, which does not necessarily always happen either. This is a lesson in terms of how this Minister in particular is prepared to listen to reasonable observations from other quarters. I refer to those amendments that were made as outlined by the Minister. I have to confess that probably like everybody else here, I had not studied them in advance of the debate. On listening to the logic of changing even a word, such as proposed by Deputies Wallace and Daly, it made absolute sense. When something is a good idea and it comes from whatever quarter, that good idea should always be embraced, enhanced, developed and made part of the Bill. That is good politics. That is what the people who elect us and give us the privilege of serving here expect of us. I commend this Minister. It is nothing less than what I know he would do anyway and that I would expect of him, but it is great to see it in practice. The Houses of the Oireachtas should acknowledge that of this Minister.

Question put and agreed to.

Acting Chairman (Senator Diarmuid Wilson)

I thank the Senators. I ask Senator Conway to move the suspension of the House.

Senator Martin Conway

I move we suspend until 6 p.m.

Sitting suspended at 5.55 p.m. and resumed at 6 p.m.