I welcome the Tánaiste and Minister for Enterprise, Trade and Employment and her team.
Personal Injuries Assessment Board Bill 2003 [Seanad]: Committee Stage.
Amendments Nos. 3 and 24 are related to amendment No. 1 and amendments Nos. 1, 3 and 24 will be discussed together by agreement.
I move amendment No. 1:
In page 7, line 31, after "actions" to insert "other than an action involving a claim for damages arising from a breach of the Constitution or the European Convention on Human Rights Act 2003, or a claim for aggravated or exemplary damages".
The first amendment defines the type of civil actions to which the Act will apply and which will be encompassed within the board's competence. This is to make it clear that the board would not be involved in claims for damages arising out of breach of the Constitution or the European Convention on Human Rights or a claim of aggravated or exemplary damages. Such actions would be totally inappropriate for the board we are now establishing, which will evaluate evidence on a document basis only.
This issue arose in the Seanad and I gave a commitment then to examine the matter again. I have, in consultation with the Attorney General, tabled my own amendment to resolve this issue.
I move amendment No. 2:
In page 8, lines 4 to 8, to delete paragraph (d).
Section 3(d) is a catch-all clause which is very vague and would cover a multitude of actions that would not be appropriate for the board. It provides that the board would have the power to deal with civil actions not falling within any of the preceding paragraphs, other than arising from the provision of any health service to a person, the carrying out of a medical or surgical procedure on a person or the provision of any medical advice or treatment to a person. It is the kind of paragraph that civil servants put into legislation to cover anything that might arise. We should, however, be very clear about what the Bill encompasses to ensure it is a success.
Could we get an example of what people have in mind when they insert such a clause?
I cannot accept the amendment because it would exclude product liability.
If someone falls off a defective chair, there are employer liability implications and product liability implications. To accept the amendment would rule out product liability and that is not desirable.
It is not but why is product liability not inserted as an area that the board will cover? The notion that it would include a civil action not falling within any of the preceding paragraphs is too broad. It might be difficult to envisage every clause but such catch-all phrases do not make for good law. If it is impossible for the Tánaiste to define the scope in a way she finds satisfactory, I will not labour the point, but as a matter of general principle, far-reaching provisions like this are not good in legislation.
Throughout the Bill there are exemptions to keep a focus on the work of the Personal Injuries Assessment Board (PIAB). We do not want to narrow its scope so that a year later something will arise that will require the legislation to be amended. The focus is narrow but we should not eliminate possibilities that could arise, things that we cannot see now. If we are specific about product liability, something else will arise and it is better to have an all-encompassing provision in the Bill than to be so restrictive that it may be defective and not do the job intended. Things change rapidly. Only this morning we were talking in the House about the implications of new technology in a different context. We live in a rapidly changing world and I do not want us to be so confined that we handicap the effectiveness of the Personal Injuries Assessment Board.
It is clear that this catch-all provision also captures areas that are inappropriate for the board. I would prefer the provisions to be clearly laid out. Having listened to the Tánaiste, however, and because we want the board to be effective, I will withdraw the amendment.
I move amendment No. 3:
In page 8, subsection (1)(ii), line 24, to delete "1945;" and substitute the following:
(iii) an action intended to be pursued in respect of an alleged breach by the State or any other person of a provision of the Constitution,
(iv) an action intended to be pursued under section 3 of the European Convention on Human Rights Act 2003;".
This amendment was proposed after consultation with the Attorney General and as a result of the debate in the Seanad. It differs from amendment No. 1 and what was proposed in the Seanad in that the exclusion of cases referred to in subparagraphs (iii) and (iv) is included in this section dealing with interpretation rather than in section 3, which deals with the civil actions to which the Bill applies.
I saw the amendment only last night and have not had the chance to get legal advice. I assume it does the job intended in amendment No. 1.
It is significant that the Tánaiste is tabling amendments because she said in the Seanad that she did not intend to table any. She gave the impression that there was no need for negotiation because the legislation was so perfect.
On certain matters I do not intend to make any changes.
Now she is coming forward with legal advice from the Attorney General. Could the committee see the legal advice that led to this fundamental change in respect of civil liability and Article 6 of the European Court of Human Rights that is so important now but was not important in the Seanad debate or on Second Stage in the Dáil?
I would never claim that anything is perfect and I said on several occasions in the Seanad that I was prepared to look at certain matters and take legal advice. This amendment is the result of a suggestion made by Senator McDowell. Later today I will accept a number of amendments tabled by Fine Gael and the Labour Party. I want to show a willingness, in the spirit of Christmas, to do that to ensure I can rely on the wholehearted support of the committee.
That is good news for Deputy Hogan, he will achieve something today.
Soft soaping me at this early stage will not work. It has nothing to do with Christmas.
I am sure Fine Gael celebrates Christmas. Things are not that bad.
The Tánaiste was provocative towards Members of both Houses, saying that everything was well thought out, but now she tables an amendment on Committee Stage having sought legal advice. I would have thought such advice would have been sought at the outset.
Amendments Nos. 5, 6, and 40 are related to amendment No. 4. Amendments Nos. 5 and 40 are cognate. Amendments Nos. 4 to 6, inclusive, and amendment No. 40 will be taken together by agreement.
It is difficult to handle the groupings as we try to deal with the amendments. I have only received a copy of them.
In future, members might request the groupings the evening before the committee meets.
We should get them as early as possible.
We shall ask the Clerk to do that in future, if possible.
I move amendment No. 4:
In page 10, between lines 11 and 12, to insert the following subsection:
"(6) For the purposes of this Act, a claimant and a respondent may nominate a third party to act on his or her behalf in relation to any matter that comes before the Board under the provisions of this Act.".
This is a fundamental amendment similar to the Tánaiste's last amendment. Having reflected on constitutional advice and advice from the Attorney General, she will see what the amendment seeks to do. It is to address a significant shortcoming in the legislation.
There is no provision in the PIAB for legal authority for an insurer to represent a respondent in dealings with the board. It may be that insurers involved in the preparation of the legislation were relying on the rights of subrogation, a contractual right they have with the policy holder. This right, however, is not likely to be binding on the PIAB and a specifically expressed statutory authority is needed if the PIAB is to deal with insurers who are representing respondents.
Similarly, the amendment provides that a claimant may nominate a third party to act on his or her behalf. This may apply to a person incapable of representing himself or herself, who would be able to appoint someone such as a brother, sister or other family member, trade Unionist or even a public representative or solicitor if he or she so wished. If the Bill is to be amended to give the respondents a right to representation, it is only fair to consider giving the claimants similar rights.
From time to time, a claimant who is unwell, perhaps as a result of an accident, may not be able to meet the time limits proposed to be represented before the board. The Tánaiste may argue that such cases are likely to go to court but in view of the fact that all the cases must be washed through the PIAB in the first instance, claimants who are not in good health as a result of an accident will want an opportunity either to be represented or to consider the matter carefully. What is the Tánaiste's fundamental objection to this type of representation, particularly given that the section does not even include the necessary wording to allow even the insurers to be represented at the PIAB?
My amendment, No. 6, is related to this issue. Some of the unfortunate comments used during this debate and in some of the submissions received by the committee signal a frame of mind that the PIAB should be a lawyer free zone. When a person wishes to engage legal advice, as some people will wish to do, the PIAB must be allowed to communicate through his or her solicitor. This is normal procedure. The approach in the Bill is equivalent to the Chairman making representations to the Tánaiste on behalf of a constituent and being informed by her that she will not respond to him but write directly to the constituent.
My amendment would insert after the word "proceedings" in subsection 2, the new sub-sentence, "save that where the claimant nominates a solicitor, the Board shall communicate with the claimant through the solicitor so nominated". People expect this procedure to be followed where a solicitor is involved.
I am mindful of the reasoning the Tánaiste may cite in objecting to the amendment, namely, that it may nudge people to employ solicitors in cases where they are not needed. Having thought about and discussed this issue, however, I am certain that if I was personally involved in a complicated case, I would take legal advice, despite being able to read legislation reasonably well. The courts have repeatedly stated that people are entitled to take legal advice. A functioning democracy should require that a person's legal advisor be in the loop in terms of communication, as it is a fair and reasonable position.
The amendments tabled by Deputies Hogan and Howlin go to the heart of the matter. There is an obsession in some quarters with taking a stance against the legal profession. I do not hold a candle for any part of the legal profession and have little contact with it. I also accept the thrust of the PIAB, which is to reduce costs and eliminate the need for large fees. However, when people become obsessed with a particular stance, good decisions may not be made.
A claimant should have the right in all circumstances to nominate or appoint a person to act on his or her behalf. Many of the people who will deal with the board may have difficulty communicating at the best of times and will certainly have difficulty putting together basic paperwork. In such circumstances, they are entitled to appoint or nominate others to act on their behalf and need to be protected.
That people dealing with the PIAB may not have adequate protection and may not be suitably qualified, educated or experienced to communicate with a board of this nature is a weakness in the Bill. We have to take into account that when faced with any board or body, regardless of whether it is easy to deal with or lenient, many people suffer a mental block or have difficulties. We must recognise and take this into account, otherwise the legislation will not deliver its objectives.
I take on board the comments of Deputy McHugh. The question of whether legal representation is part of the process brings us to the nub of the issue. As I understand it - perhaps the Tánaiste will comment on this - the purpose of this body is to remove legal correspondence from the process. I accept, however, that some people may have difficulty representing themselves. Perhaps, therefore, the Tánaiste will allow this issue to become an internal matter for the PIAB, which could have a nominated officer to talk people through an application before proceeding with a claim.
People sometimes inadvertently put things down on paper which they subsequently regret. We do not want anyone to put himself or herself in a position in which he or she may be prosecuted for inadvertently making a false claim. For this reason, the procedures of the new body should provide for some element of protection for the ordinary person who needs to be talked through them. The Criminal Injuries Compensation Tribunal appears to do this effectively. When I refer cases to the tribunal, staff appear to talk people through their entitlements and what they can claim in a neutral manner. This type of nominated officer may be needed to address the issue raised by the Deputies.
This issue does go to the heart of the discussion. The purpose of establishing this alternative mechanism is to reduce the cost of delivering claims and expedite the delivery of a person's entitlements. In 1986, when the former Deputy, Ivan Yates, chaired a committee, litigation costs, legal and other costs, amounted to 15% of overall costs. This figure is now 42%. We have had the Deloitte & Touche report, submitted to Deputy Rabbitte when he was Minister of State, the IBEC-ICTU voluntary code on workplace safety and, for many years, calls by a number of bodies for an alternative. The PIAB is the alternative.
The purpose of not providing legal costs or fees in this case is to reduce costs. The Insurance Industry Federation informed us that €340 million, an incredible sum, was paid in legal costs and fees, while IBEC stated in 2002 that personal injuries were costing employers €2 billion, of which legal costs accounted for €600 million. The PIAB will not hold oral hearings in which claimants will have to advocate or someone will have to advocate on their behalf. It will be claimant friendly organisation and statutory body, that is, a State organisation. It will have helplines to assist vulnerable claimants. We have already seen a draft, which I understand was circulated to members of the committee, of the user's guide prepared by the interim board.
Through the mechanism of the PIAB, we will go out of our way to help claimants, which is what the proposal is all about. Fees are not provided for in the Employment Appeals Tribunal or the coroner's court. People are free to take on lawyers if they wish - this will be the case given that hearings will be involved - but their costs will not be covered. Equally, if people want to obtain legal advice, nobody will stop them, nor would that be my desire. It will not, however, be paid for, apart from in the exceptional cases mentioned in the Bill. The reason for not dealing directly with lawyers, except where a claimant asks us to send a copy of correspondence to his or her lawyer if he or she has one, is that control over this entire matter is shared between the claimant and the PIAB.
The reason this goes to the heart of the matter——
If the claimant requests that the lawyer gets the correspondence it will be sent to the lawyer.
Yes. The lawyer will get a copy of the correspondence at the same time.
So the Tánaiste is accepting the amendment.
No, I am not accepting the amendment. The lawyer will get a copy of the correspondence at the same time as the claimant is sent the correspondence. Clearly, if claimants wish to engage a lawyer at their own expense they are free to do so. If we are serious about reducing the cost of delivering what people are entitled to, we can only do so through this mechanism. We cannot do it through the current system. Only 10% of cases end up in court even under the current regime. Yet, the legal costs surrounding that are too much for society to bear. After many years of going half way down this road we have reached the crucial point.
I accept many Deputies have been lobbied by representatives of the legal profession. I know who mentioned this in the Seanad. It was not me. I am not the author of this lawyer free zone, some of my best friends are lawyers. I have no doubt lawyers will always do well in any developed economy. However, if we want to reduce the cost of insurance here we must do things differently in the future. That is the reason the PIAB is being established on this basis and, much as Deputies would wish, I cannot concede to their demands in this regard.
Are insurers represented?
Nobody is represented.
They are on the board of PIAB.
There is a single representative of insurers on the board of 12 members.
They are represented in that way.
A Member of the Oireachtas is also on the board.
I know about that.
The board is made up of a group of citizens who have the interests of claimants at heart. It is not an insurance based board.
Has the Tánaiste got legal advice on the right of representation?
Is the Tánaiste satisfied that this legislation will stand up to Article 6 of the European Convention on Human Rights?
I have taken the Attorney General's advice on that matter.
Even though the Tánaiste did——
The Employment Appeals Tribunal and the Coroners Court do not provide for legal costs.
I want to tease out this. The Tánaiste amended section 4 for the same reason; she had to take into account what is provided for under the European Convention on Human Rights in regard to the definition of civil liability.
It was taken into account in respect of section 4 but not in the context of my amendment, which seeks to ensure that the claimant would not be treated in an unfair way in the event of taking a case to the PIAB. I am conscious of one thing. If a person has an accident and goes to the PIAB for a liability claim and irrespective of what claim he or she receives, the first person he or she will go to is the solicitor. That is human nature.
That is because of the current system. The first person he or she should attend is a doctor.
Such people normally go to a solicitor before going to a doctor.
That is the tragedy.
Yes. I agree the Tánaiste is trying to reduce the cost of litigation. I want to see that happen also. I am trying to be realistic. In practice what will happen is that after using the PIAB, claimants will go to a solicitor and have a discussion on the level of the claim offered. The solicitor will say the person is doing all right but would probably do better in court. Therefore, most of the cases will end up in court.
Section 16 deals with liability. All of this has implications. On the one hand, insurers will go in accepting liability and come out at the other end with the option of going to court, in a subsequent section, and fighting it all the way. Notwithstanding the fact that legislation is being introduced to deal with fraudulent and exaggerated claims and all the cowboys that should be dealt with, there are genuine individuals, for example the illiterate or the blind, who are unable to do their business fairly and well. Deputy Conor Lenihan agreed with this. There are those who need representation to ensure they get their legitimate rights under the Constitution. If the Tánaiste has legal advice to indicate she is covered in every possible way in the event of this section being challenged, I would be glad to get it.
I do not want the amendment to give the signal that we want to undo the principle to which we have all signed up. We want a simple, uncomplicated mechanism to give fair treatment to those who have suffered personal injuries where liability is not at issue. That is what we have agreed to do. What we are now putting in place is a mechanism that does that on a fair basis. My amendment - I am sorry the Tánaiste did not go through it seriatim - seeks to put into the Bill what she has said will happen as a matter of course. With a slight tweaking of it, she has indicated that a communication will be sent at the same time to the solicitor of a client where one is engaged. My amendment seeks to ensure that the communication would be through the solicitor, as is the normal course of action. I am not talking about costs. That will be dealt with in a separate section. Where a person chooses to engage a solicitor, as is normal practice, the communication would go through the solicitor to the client. That is the import of what I want to achieve.
To counterpoint what the Tánaiste said, in all our debates we have highlighted the 42% cost of legal fees in personal injuries claims. The Irish Financial Services Regulatory Authority has today published a survey it has carried out which has found that the cost of motor insurance can vary by almost 500% between insurance companies. For example, a 25 year old male bar worker in Galway, who drives a 1998 Honda Civic, was quoted €1,000 with AIG and €6,000 with Royal Sun Alliance. That is not a 42% differential nor has it to do with legal fees. There are fundamental changes we want to make. That is the reason our own committee report had 40 recommendations.
I am concerned about the absolute focus by some on this one issue as if it is the panacea for all. As indicated previously, we were presented with panaceas in the past, including the abolition of jury decisions, and the representations by two senior counsel, that did not have the impact we had been promised. While I am most anxious, as are all colleagues on this side, to have a simple and fair mechanism, those who are incapacitated who wish to engage a solicitor should not be disadvantaged. The proposal as it stands would disadvantage them. They may have one disabling injury which the PIAB may be involved in determining, thereby determining the quality of their life. These are not small matters and we have to get it right, even if it is not perfect in terms of what we want to achieve. If we do an injustice to any individual on the basis of decisions we make we do a grave disservice to natural justice.
As previous speakers have said, we all accept the spirit of the amendment. Hopefully, many benefits will roll on from it. Procedures will be streamlined. The brinkmanship which lawyers engage in before court cases would be eliminated and many similar issues would be dealt with. I would go so far as to say that given all that has been said about the legal profession, a claimant might be penalised by the PIAB if he or she had any association with a solicitor.
The bottom line here is the protection of the claimant but the nine pages of the user-friendly draft guideline that have been prepared and circulated to some will be of little use to a person who cannot read, for example, or to a person who does not have the benefit of a good education. There is no protection in the document circulated and I ask the Tánaiste to reflect on the issue again and see some merit in the arguments we are making.
The user's guide was prepared by the National Adult Literacy Agency, which is the expert in this area.
What good is it to somebody who cannot read or somebody who did not have the benefit of a good education?
The Deputy is approaching this on the basis that this will be a hostile organisation which is out to catch the claimant. The reality of what happens in Ireland currently is that barristers——
That is the perception that has been created.
I assure the Deputy it is not a perception being created by me. This is about helping genuine claimants to get their money much more quickly than is the case currently. In Ireland, barristers are involved in 70% of personal injuries cases whereas in the United Kingdom they are involved in 4% of cases. It takes six times longer to get what one is entitled to here than it does in the UK. We want to change that. That is why we have gone to such great lengths. I have been criticised in the House for the delay in bringing forward this legislation. Now I am being criticised because we are putting it through so fast. The Deputy cannot have it every way.
The reality is that this will be a claimant-friendly zone.
The Tánaiste, without interruption.
I have correspondence from the Law Society which has been circulated to all members.
We are not the Law Society.
The Tánaiste to continue without interruption.
I have been criticised for——
The Law Society said it. I have its correspondence before me.
We are not speaking for the Law Society.
You are just making the point on its behalf. The Tánaiste, without interruption.
I am delighted to know the Opposition members do not share the view that this is being done with undue haste, and I thank you for that because it is important.
Through the Chair, Tánaiste. Do not invite comment.
As you can see, before lunch they offer in abundance.
I apologise, Chairman. The difference between direct communication with a lawyer as opposed to the claimant is a control issue. The claimant has to remain in control of his or her case. If the claimant wishes to have a copy of the correspondence sent to their lawyer at the same time that will be done, but if we accept Deputy Howlin's amendment, there will be a lawyer involved in every case and we do not need that. We all have to accept that. I have no doubt in complicated actions citizens will take the advice of their family lawyers, which has been referred to here. My experience as a politician serving in these Houses of the Oireachtas for 26 years has taught me that people rarely move from their family solicitor. I often ask constituents in west Dublin why they still travel into town and it is because the solicitor has been in the family for perhaps two generations. That is not a bad thing.
They know too much about them.
I have no doubt that in many cases people will get legal advice but this body will deal with claimants. It will be a claimant friendly organisation established and supported under statute. That is the reason I do not believe it is desirable, in the interests of reducing costs and keeping to the simplicity Deputies want, to include Deputy Howlin's provision in this legislation, simple in intent as it appears. On face value it appears to be an unreasonable attitude of mine to reject it but I am certain that if I accept it, the kind of costs we have seen in recent years will not be substantially reduced.
Is the amendment——
Chairman, I indicated earlier that I wanted to speak. I thought you had seen me but clearly——
I thought you were acknowledging to the Chair that you had arrived.
If the Chair is waiting on me to acknowledge it——
We have two minutes remaining before the lunch break.
The concept of a lawyer-free zone is not necessarily the most laudable feature of this process. The lawyer-fee-free zone is the key element of it. That would help people who are not articulate enough or who, for whatever reason, may not be able to present their case adequately. For that reason, I agree with the concept of a lawyer fee free zone as far as the body is concerned.
Lawyers have to——
Does the Tánaiste think they will work for nothing? If she knows of any who will, perhaps she would advise accordingly.
On section 4, which is relevant in terms of an amendment I am considering tabling later, I welcome the Bill in so far as it goes but it is unfortunate that it does not deal with the most costly element of insurance, namely, the public liability element, which is crippling small and big businesses throughout the country. Had it been included as a priority, we would have been very enthusiastic about the Bill.
This is the same issue. In the first instance the intention is to deal with employee liability cases and then move on to motor cases and public liability. The interim board is currently recruiting staff and we hope to establish this body as quickly as possible after Christmas. It will deal with all the issues but, like any new organisation, it is reasonable that it would be done on a phased basis.
Unfortunately, I cannot accept these amendments even though they go to the heart of what we are trying to do here. I have given a good deal of consideration to this. I have discussed it with a large number of legal experts, and they take a different view. I do not take a black and white view on many of these issues. I like to think I am open-minded but I know that as night follows day, if we open the door here we will have the kind of cost infrastructure that we are trying to get rid of, and I cannot give way.
Is it agreed that we adjourn until2 p.m.? Agreed.
Amendment No. 16 is related to amendment No. 7 and they may be taken together by agreement.
I move amendment No. 7:
In page 11, subsection (1), line 26, after "claim" to insert "after liability is admitted by the respondent in open correspondence".
The background to this amendment is along the lines of what we discussed briefly before lunch, that once liability is admitted through the PIAB process it should continue to be admitted, even if a case subsequently goes to court. It is unreal that a claimant and an insurer may not be in conflict regarding liability in the PIAB process, in that it has been admitted, but that the position concerning it can be subsequently reversed. The purpose of the amendment is to allow for equality between the claimant and respondent in their dealings with the PIAB and to prohibit the reintroduction of the liability issue after an assessment has been made. It would be inequitable to the respondent if, once liability was admitted, it could be later withdrawn. An admission of liability is not a clandestine matter, which the Tánaiste sought to make it out to be on Second Stage. If an insurer is willing to go before the PIAB, it should be interpreted and stated categorically that the insurer is admitting liability. Such an admission should be made in an open and frank manner in open correspondence.
There is no provision in this forum to formally move amendments to titles. I ask the Tánaiste to consider amending the title of PART 2 to provide that after the words "Civil Actions" the words "After Liability Is Admitted" be inserted. I would like a similar change to be made to the title of Chapter 1 to provide that after the words "for Assessment” the words “after Liability is Admitted in Open Correspondence” be inserted. The objective here is to deal with the fundamental principle that once liability is admitted the same position should prevail, if a case subsequently goes to court, as that stated in the context of assessing a claim in the PIAB.
If respondents were expected to admit liability, nobody would ever go to the PIAB. Why would they? In 90% of the cases currently settled, liability does not arise. Even in the 10% of cases that go to court, liability is not admitted. In virtually 100% of current cases there is no admission of liability. There would be no possibility of getting respondents to go to the PIAB if liability was to become an issue from day one. There are also other issues that might arise. The respondent may be happy to go through the PIAB process and other parties may be responsible for liability down the road, as in a case to which I referred in the debate in the Seanad. If an employee falls off a defective chair, the employer may be prepared to go through the process and have the employee compensated. He or she is a genuine claimant and has sustained personal injuries and the employer may subsequently pursue the manufacturer of the chair, the supplier or whoever. To admit liability from the outset would make the PIAB useless.
The section deals with the making of an application for assessment by the board.
Yes, an assessment of the quantum to which a claimant is entitled. The Deputy is saying that before that happens, the respondent should admit liability.
No. I envisage a situation where one goes with a case through the PIAB. At that stage everybody is admitting liability in order to have the application assessed.
No, they are not. Nobody is admitting liability; that is the issue.
Liability is not contested.
Liability is being parked.
That is very unusual.
In 90% of the cases that do not go to court, liability does not arise. In the 10% of cases that go to court, nobody admits liability. That is perhaps why they go to court.
In this case we are talking about testing how we get on with employers' liability cases for the first six months.
We will be going into road traffic cases——
——and other public liability cases thereafter.
That will clog up the system with an enormous amount of paperwork. It will also involve an enormous amount of potential assessment for very serious cases. It will mean the figure the Tánaiste has just quoted about the number of cases she expects to go through this procedure, will be much greater than she has envisaged. She said that 90% of all cases will go through the PIAB.
All cases will have to go through the PIAB, except where liability is the issue. The vast bulk of cases currently have no liability related issues. People do not admit liability in the 90% of cases that are settled out of court. The remaining 10% of cases go to court invariably because somebody is not prepared to admit liability and the court may determine where liability falls. With the PIAB, the issue of liability is parked and the PIAB does the assessment. In other words, the respondent is not saying, "Yes, the employee fell and it's my fault".
If the Tánaiste wants to get the process sorted——
Respondents will not go through a PIAB process if they have to admit liability. Why would they? Why would they go through the administrative cost first and then end up perhaps in——
I thought all this was a paper-based exercise and that there would hardly be any costs.
It is, but the respondents will pay for it. We estimate the cost at €7 million or €8 million. Clearly, the higher the volume, the higher the cost.
It would be unfair to the claimant if, in order for the PIAB to work effectively and efficiently and to get quick, early and agreed decisions, respondents had the resources of an insurance company at their disposal where costs, if engaged, could be passed back to the insurance company and the policy holder if necessary. However, the claimant has no opportunity to pass back any costs. The claimant goes into the PIAB process, must bear all the costs, supply all the documents to carry out an assessment, fill up the applications and get professional advice, including medical advice and whatever else is necessary. At the end of the day the claimant does not know whether liability will be accepted.
Liability is not an issue for them. The first port of call will not be the PIAB. If somebody has an accident, the first thing he or she will do is go to his or her employer or to the employer's insurance company. If people have a motor accident they will get in touch with their insurance company. Many cases will be resolved at that point. Those that are not will go through the PIAB process where liability is not an issue. If liability is an issue, then it goes straight to the courts; it does not go through the PIAB. The PIAB is not there to establish who is right or wrong. It is there simply to do the quantum - to assess what one is entitled to and whether one is a genuine claimant. If respondents were to say at the outset that they were liable, it would not be a matter for the PIAB; that is a matter that should be determined through a court-related procedure.
I would have thought that——
Why does the issue of liability arise? In the first instance, the issue that arises is that the claimants get what they are entitled to, regardless of liability.
I would have thought that most people would engage with the PIAB as the result of an accident and that a fairly quick assessment would be made of the accident.
Therefore, the insurance companies would know immediately whether they are liable.
It is very often contested. The example I give, which I think is a good one, concerns a defective product in the workplace that has caused injury to the employee. The employer may wish to sue the supplier of the product. If the employer goes in hands-up and says, "I'm liable", that is the end of his right to pass that onto to somebody else or to seek redress from someone else. It simply would not work. In the meantime, until all that is sorted out, perhaps the employee will have to wait a considerable length of time to get that to which he or she is entitled.
The whole purpose of the PIAB is to improve substantially the delivery time to claimants. As I said earlier, it takes six times longer here than it does in the UK to deliver people's entitlements. Many claimants wait years before receiving their entitlements. If we are to go down the road of admitting liability, the PIAB will not function.
The Tánaiste's comments put a different complexion on the whole issue. The idea of the PIAB is to streamline matters but according to what the Tánaiste has said, what we are getting is a second tier. That will not streamline anything. It will create more paper, more hassle and more work for everybody but it will not solve anything. If anything, it will make matters more complicated and difficult. This is the first time I have heard the term "parking the liability element". The PIAB has been sold on the basis that it would deal with claims where liability was not an issue. If liability is not an issue today then the English language suggests it will not become one tomorrow. That is how I understand it.
If liability is the issue, one goes to the courts.
Exactly, and one goes to the PIAB where liability is not an issue.
That is right.
It may not be an issue today but, given what the Tánaiste has said, it may be one tomorrow.
No, I did not say that.
It is unfair to a claimant that a respondent can decide to go through this process and still have a second bite of the cherry. All the PIAB is doing is facilitating the respondent.
Respondents will have their day out, will run with the PIAB——
They will pay for it and then pay for the courts.
No, they will run with the PIAB, they will not make an issue out of liability until they see what the PIAB comes up with. If what the PIAB comes up with is not suitable to them, then they can bring in the issue of liability. That is totally unfair to the claimant. The claimant has to know what kind of game the opposition team is playing. He or she will not know that, however, if the opposition can change whenever it suits it. That is totally wrong.
The Deputy has misunderstood what we are trying to do.
Will the Tánaiste clarify the position for the benefit of members?
The Deputy is saying that on day one, before a claimant engages with the PIAB, the respondent must admit liability.
Yes, and the Tánaiste has said on numerous occasions that the PIAB will deal with issues where liability is not being disputed.
No. It is not going to deal with liability at all.
Okay, where it is not an issue.
The issue of liability is one for the courts. It is not a matter for the Personal Injuries Assessment Board. To repeat what I said earlier, at the moment some 90% of cases do not go to court. They are settled before the court hearing. They may go through the process but they do not end up in court. Liability is not an issue there. The remaining 10% of cases go to court - probably because nobody is admitting liability - for the courts to determine where liability rests. Why would the respondent, who is going to pay for the administration of this body, pay for the PIAB and then take the court route subsequently? Why would respondents add all that cost? Wouldthey not be better going to court in the first instance?
The understanding was that if the settlement was unacceptable to either party, it could then have its day in court. It was never an understanding that liability was going to come into it.
If, under the current system, respondents are not required to admit liability, why on earth would we require them to do so under this new streamlined, simple, cost-effective system?
Because it is a new system and a new approach.
They would be crazy to do it.
If they can park liability, however, it is just another tier.
If someone has an accident in the workplace and gets what he or she is entitled to through this mechanism, does the issue of liability matter?
It does to the claimant.
What is important here is getting claimants' entitlements to them as quickly as possible.
Nobody would dispute what the Tánaiste has just said. We are putting in place a mechanism to achieve fairness. We are dancing around an issue and I have to say that listening——
It is not an issue.
Let me try to explain why it might be an issue, because Deputy McHugh argued the case, with which the Minister has not engaged, very well. It was our understanding all along that in the majority of cases liability is not an issue. The issue is the damage done and the compensation that will accrue on foot of such damage. Why would it be an issue if liability is "parked", to use the Tánaiste's word? A claimant would go in on the assumption that liability was not an issue and engage with the respondent, whether a company, an insurance company or otherwise, to assess the level of harm done and its monetary worth. If, at the end of the process, the issue of liability can be reintroduced, time is lost in terms of being able to prove liability and to secure evidence thereof. The claimant is lulled into a false sense of security in the belief that he or she does not need to prove liability and that all he or she needs to concentrate on is a proper quantification of the damage done and its monetary worth.
The Tánaiste cannot have it both ways. She cannot say the claimant will come in and park the issue. The claimant is put in an invidious position where he or she is lulled into a false sense of security that he or she does not need to accrue basic evidence of liability and responsibility. At the end of the process, he or she may well have to do that despite a time lapse of perhaps 18 months and in a position of considerable disadvantage. This is something the Tánaiste cannot ignore.
A time lapse is probably more in the claimant's favour than in the respondent's or defendant's favour.
Not if he or she needs to secure evidence.
If there is an accident at work, there are requirements under the health and safety legislation for it to be inspected, for records to be kept and so on. If there is a traffic accident and personal injuries result, there is a requirement on the Garda Síochána. Those records are available. I will move an amendment later on preserving the scene of an accident that is provided for in current law but is hardly used. We want to ensure we protect it in this legislation.
The claimant's interest is to get what he or she is entitled to and to do so quickly. What will be the position if there are multiple parties involved in a dispute? Are we to wait until they all resolve the issue of liability before we give the claimant anything? That would not be acceptable. The Deputy is saying that from day one, respondents must admit liability and if they do not, the case should not proceed to the PIAB. If that were the case, it would narrow the board's focus. Why would anybody go through the administrative procedure and then go down the road of court related procedures if the issue of liability is going to arise from day one? At present it does not arise in 90% of cases. The reason the other 10% of cases end up in court is that the issue of liability is not resolved in advance. Since we do not require people to admit liability in advance at present, why would we bring in something that would completely strangle the PIAB?
At present the claimant is fully covered. He or she has professional advisers running the case.
At present the claimant has a solicitor or a legal person running the case for him or her and providing advice at every turn. Under the proposed system, the lawyer must not be seen and must operate undercover. Claimants are totally exposed because they must put all their cards on the table from day one. They are totally disadvantaged if the case ends up in court. That is unfair on the claimant.
How is the claimant disadvantaged?
The claimant is disadvantaged because he or she will not have legal or professional advice on how to present his or her case——
If the claimant brings in liability, he or she will need a lot of advice.
——in the event of it ending up in court. That is a serious issue. It is okay to present a case and provide medical certificates at the PIAB but if there is a possibility of moving to another tier, one will need more protection than that provided by somebody down the country or in Dublin filling in a few forms. Claimants need more protection than that and they should not be exposed in the way the Tánaiste has said.
My officials have kindly drawn to my attention what I said on Second Stage, which Deputy McHugh obviously did not hear. It reads:
A respondent's agreement to a claimant's submission for the PIAB assessment will not constitute an admission of liability nor can it be used in any other manner to prejudice legal arguments in subsequent court proceedings. Requiring a respondent to admit liability in advance of a PIAB assessment would effectively stymie the entire process . . .
Is that what the Tánaiste said in the Seanad?
No. That was said in response to Second Stage in the Dáil.
The Tánaiste did not speak in the Dáil.
No, the Minister of State spoke on my behalf.
Was that in the speech of the Minister of State, Deputy Fahey?
It was said in the Seanad as well. I find it hard to believe that somebody did not realise that until now.
The Tánaiste will have to admit that this Bill has been presented to the public as establishing a board to deal with certain categories of personal injuries claims where liability is not admitted. Examination of the Bill shows this claim to be false. The PIAB, as currently constituted, will only deal with cases where liability is not admitted, for as long as the insurer decides liability is not admitted. Under the Bill, as drafted - I know the Tánaiste will table amendments later - there is a farcical situation where an insurer can compel a claimant to go to the PIAB. The procedure for reaching an assessment can take up to 16 months. At the end of that process, the insurer can reject the assessment and put the claimant through the legal process in the courts and change liability and quantum. This puts the claimant in a grossly disadvantageous position. The Tánaiste said in the Seanad that she did not want to see this situation arising because insurance companies will pay for these procedures. I do not accept that. Insurance companies are able to pass on the costs to others, but the claimant cannot do so.
What can the claimant not do?
The claimant cannot pass on whatever costs accrue to anybody other than himself or herself. An insurance company, which is a corporate entity, can pass costs on to the policy holders. If the Tánaiste is confident about her assertion, then she should amend the Bill accordingly.
The admission of liability.
No. If the Tánaiste is confident that insurance companies will pay for these procedures, will speed up the process and will not unduly put additional costs on claimants, she should make sure of that in the legislation. Many cases are not settled. Given the reluctance of insurance companies to settle early - notwithstanding that insurance companies will ultimately fund the legal costs involved - the Tánaiste should take that into account in the Bill. We are looking at the issue of fairness. The way the Bill is loaded at present unfairly favours the corporate entity rather than the citizen. Perhaps the Tánaiste will reflect on that before Report Stage.
Deputy Hogan said only the respondent can admit or not admit liability and that there is no such right available to the claimant. Clearly, if the claimant was liable, he or she would not be making a claim in the first place.
I know that.
The issue of the claimant admitting liability does not arise. As I said, the claimant only goes to the PIAB if his or her employer, employer's insurer or motor insurer has not resolved the issue. Many cases are resolved in that way. We hope the majority of cases will be resolved in that fashion, or certainly a large portion of them. I wish to ask a fundamental question. Why would the respondent, who, after all, is paying for this new body, go through the administrative process, park liability and then go to the expense of court procedures and try to raise the issue of liability?
Does the Tánaiste think it is fair that if a respondent forces a claimant to go to the PIAB——
The law enforces that, not the respondent.
The respondent and his or her insurer compels a claimant to go to the PIAB.
Where liability is not an issue.
They subsequently reject the assessment produced by the PIAB under section 11, following which proceedings go to court to deal with quantum and costs. This is how the matter should be dealt with. They should be able to deal with quantum and costs but not contest liability to allow a respondent to raise the issue of liability 16 months later, which is an enormous disadvantage to the claimant. It is fundamentally unfair.
It takes years for a case to get to court.
We were told recently by another Minister that the court process has been expedited so much that a case can get to court within six months.
The record of personal injuries is a very long one.
The net issue is very simple. In what circumstances would a respondent go to the PIAB if he or she wanted to contest liability?
He or she would not.
What is the difference?
The Deputy is talking about admitting liability when he or she might think someone else is liable.
If the Tánaiste agrees with me that the respondent would go through the PIAB process if it was his or her intention, or there was a case to contest liability, what damage would it do to state overtly that it is a vehicle for non-contested liability rather than disadvantage one party, the claimant, who could 18 months later find himself or herself having to prove liability at a time distance from the actual injury occurring, without legal advice in the interim, that would make it more difficult for him or her to prove the case? To ensure that more people go through the PIAB process, but accept the argument on this side of the House that if liability is not an issue - the Tánaiste says it would be absurd to go through the PIAB process if liability was an issue - let us get that off the agenda so that the only issue is that of quantum and costs.
The Deputy makes a very good argument for not making liability the issue.
Is plain English that difficult? Parking means it can be reintroduced to disadvantage claimants.
No. I do not accept the respondent will go through the expense of the administrative process and then go to court.
Then state that.
The claimant can also reject the award.
Just the degree of quantum, not the issue of liability. The respondent is not being told to go back, prove something at the beginning and gather evidence without the wherewithal to do so.
By virtue of taking a claim against the employer, one is assuming the employer is liable.
With all due respect——
If as a result of defective products someone in the workplace is injured and the employer wants to pursue that with the supplier of the products, under the regime the Deputy suggests, he could not do so. If it is the case at the moment——
They come in, admit liability and go after someone else. How could that work?
The employer would be liable and be able to counter-sue subsequently. Why would that not be possible?
The employer might not be liable.
If I have an employer-employee responsibility and I present someone with defective material to work with, and my insurance company accepts responsibility, then he or she has another case to sue the defective supplier. Why would that not stand up?
There may be different degrees of liability resting with the employer and the supplier.
Why should the claimant be the one who is screwed?
The claimant is not being penalised. We are saying the liability will not even arise. We will give the claimant the money.
The Tánaiste cannot say that.
That is a fact.
Who will pay the money? Will the money be paid by the insurer or whoever?
The insurers will pay the money even though they are not liable?
We will not deal with the issue of liability.
I know that.
It may well be the case, and it often is the case, that employers or insurers take the view that they would be happy to pay a fixed amount, forget about liability and not go through the whole cost of pursuing the liability issue. It is an issue with which many of us deal in our everyday lives. If one is involved in a traffic accident or whatever, one might be happy to carry some of the cost because it is easier, simpler, less hassle and, in this case, less costly. If we are going to require people to put their hands up and say liability must be admitted, very few cases will go to the PIAB, they will all end up in the courts. If claimants get what they are entitled to I am sure they will be happy, as is the case at the moment.
I move amendment No. 8:
In page 11, subsection (3)(b), line 39, after “correspondence” to insert “(other than without prejudice correspondence)”.
I tabled this amendment for the purpose of clarity. The board is to be given a right of access to any correspondence. Presumably what the Tánaiste intends is open correspondence. For clarity, I propose the amplification of the section.
I object to the amendment, which is not necessary. Nothing in the PIAB process will prejudice either party in the event of subsequent proceedings. This is dealt with in sections 16 and 37.
What does the Tánaiste mean by "will not prejudice"? If documentation is available to the board that is not open correspondence, how could the claimant's case not be prejudiced?
Section 16 reads as follows:
Neither a statement referred to in paragraph (a) of subsection (1) of section 14 nor a failure of the kind mentioned in paragraph (b) of that subsection shall constitute an admission of liability by the respondent concerned or be capable of being used in evidence against him or her in any proceedings or operate in any manner to prejudice any proceedings.
This is reiterated in section 37.
The point the Tánaiste is making appears to make sense. However, the amendment clarifies and strengthens considerably the case. For this reason, I think it should be accepted.
It is already there. It cannot be used because a judge will not be aware of the information. It is made clear in two different sections, which is what Deputy Howlin is trying to achieve.
The Tánaiste referred to section 16. What I am taking about in section 11, to which I have tabled an amendment, is the application for assessment to the board itself. The Tánaiste is saying that all documentation should be available to the board, even documentation that is not open correspondence in the meaning of the law. Is she suggesting they should have been able to claim such correspondence? Section 11(12)(3)(b) refers to copies of any other correspondence between the claimant and that person or those persons on the relevant claim. This is what they can have access to. I am saying the board of PIAB has no right to have access to non-open correspondence.
Who has no right?
It has no right to the correspondence.
Not in a court of law.
I envisage that very few detailed personal cases will go the board. Presumably they will be decided on by the staff of the board. If a case must go to the board, why should the board not have available to it all the documentation? Is that the point the Deputy is making? Is he saying that any dealings the board has with the claimant cannot be used subsequently against the claimant in court proceedings?
That is not what I am saying. Is the Minister saying that, as drafted, the right of access by the board to correspondence is to include all correspondence, including correspondence that is not open in legal terms?
I ask the Deputy to explain to me what he means.
I am no lawyer. The Minister has advisers present.
I ask the Deputy to explain to me what he is talking about. Does he mean medical correspondence?
Possibly. I refer to correspondence that is not relied upon by the claimant, such as correspondence that is not submitted by the claimant.
I thought the Deputy was referring to the board as opposed to the organisation. The claimant makes an application and obviously it is substantiated with medical evidence. There may be subsequent evidence from the medical referees to which the board will refer the claimant. The medical advice is made available to the respondent, which is the case at present. I do not understand what the Deputy's amendment is trying to protect.
It is akin to the next amendment.
Does he mean correspondence from the claimant to the insurer or to the respondent?
I am advised under the rules of court that the court itself could only examine documentation that the claimant relies upon for the advancement of his or her case and not other documentation.
I do not know what other documentation the board would have other than documentation——
I do not know either other than that the rules of court limit what can be taken into account.
I will seek advice on what the Deputy is suggesting because I am not certain what he is trying to cover and I will come back to it on Report Stage.
It should be on the basis that it should not operate in a broader parameter than the rules of court would deal with.
I do not think that is the case. I think it is covered by the rules of court. I will clarify the point raised by the Deputy and will come back to it on Report Stage.
I move amendment No. 9:
In page 12, subsection (3)(c), line 3, after “injuries” to insert “and whom the claimant proposes to call as a witness in the event of bringing proceedings in respect of the claim”.
This amendment is related to amendment No. 8.
Does the Deputy wish it to be postponed until Report Stage?
I wish to state what it is first. I am advised that under the rules of court, the court would require disclosure of medical reports only by doctors upon whom the claimant intends to rely. In a court they would be called as witnesses and other medical documentation would not be amenable to the court. Is the Minister suggesting again in this phraseology that if she does not accept my amendment, the remit of the PIAB would be broader than the remit of the courts in this regard?
The PIAB will not interfere with anything that might happen subsequently in litigation in a court process.
I am not talking about that.
It is very rare for doctors to be called. The evidence is dealt with by way of exchange reports. Does the Deputy mean the PIAB procedures?
I am only talking about the PIAB. Amendment No. 9, is to put in the same delimiter on the medical evidence that could be examined by the PIAB as would be examined by a court if it was dealing with the claim.
Nobody will be calling witnesses because this is a paper-based system. The PIAB will merely require the medical evidence from the treating doctor. If some claimants do not go to their family doctor but take other medical advice, in those cases those matters will probably be referred to the panel of medical referees. It is not envisaged that witnesses will be called before the PIAB because it is based on documentary evidence.
Will the Minister take legal advice and assure me that regarding section 11(3)(c), the medical reports encompassed by that subsection deal only with the medical reports germane to the claim and no other medical reports can be demanded of the claimant by the PIAB?
I do not understand why the PIAB would want any other medical reports. It will only require medical evidence relating to the claim. I will reflect on the matter.
I accept the Minister's assurance if that is what she is giving me.
I ask the Deputy to give me an example of what he is trying to rule out. I will speak to the Deputy privately.
I will withdraw the amendment on that basis.
Amendments Nos. 10 and 68 are cognate and are consequential on amendment No. 60. Amendments Nos. 10, 60 and 68 may be discussed together by agreement.
I move amendment No. 10:
In page 12, lines 25 and 26, to delete "32, 36 or 49 and subject to those sections” and substitute “32 or 36, rules under section 46(3) or section 49 and subject to those sections or rules”.
Is the committee proceeding after 2.45 p.m.?
We are proceeding until 4.30 p.m. by agreement of the committee.
Amendment No. 10 is related to amendment No. 60. The proposed amendment has two purposes. The first refers to a case where the board will not proceed with an assessment if a respondent is of unsound mind. As the claimant may wish to bring proceedings against the respondent in future, then the PIAB needs to be able to authorise the claimant to do this. The second refers to a case where the claimant, through no fault of his own, omits to list a respondent as the proper respondent and incorrectly names a wrong respondent in his application form. This is likely to arise in the case of a group of companies. The PIAB needs to be able to authorise the claimant to bring proceedings against the proper respondent where necessary. In both these instances, the board may defer authorising the claimant to bring proceedings if it is considered that an assessment is to be made. This decision will be taken with due regard to the lapse of time to ensure that the claimant's right to bring proceedings is not unduly interfered with. This amendment will close off a loophole in the legislation.
I move amendment No. 11:
In page 12, between lines 27 and 28, to insert the following subsections:
"(2) Nothing in subsection (1) or any other provision of this Act is to be read as affecting the right of a claimant or a respondent to invoke the jurisdiction of any court to make an order referred to in subsection (3) that could be made if proceedings, but for subsection (1), were to be brought or were about to be brought in respect of the relevant claim and the court shall, accordingly, have jurisdiction to make such an order despite the enactment of subsection (1).
(3) The order mentioned in subsection (2) is any order of an interlocutory kind or power to make which is otherwise inherent in the court’s general jurisdiction in civil proceedings and, in particular, an order restraining the transfer of assets to a place outside the State or the dissipation of assets and an order requiring evidence to be preserved or restraining interference with the condition in which the place of any accident or occurrence is in at a particular time.
(4) Unless in the special circumstances of the particular matter the court which makes such an order directs otherwise, the making by a claimant of an application to it for such an order is not to be regarded as the commencement of proceedings in respect of the relevant claim for the purposes of the Statute of Limitations 1957 or the Statute of Limitations (Amendment) Act 1991.".
Under this Bill all relevant personal injuries claims not yet the subject of litigation must be referred to the PIAB before proceedings can be commenced. The purpose of this amendment is to clarify that these proceedings exclude orders restraining the transfer of assets to a place outside the State or the dissipation of assets or orders requiring evidence to be preserved or restraining interference with the condition in which the place of any accident or occurrence is in at any particular time. Furthermore, if a claimant makes such an order, it is not to be regarded as the commencement of proceedings in respect of the relevant claim for the purposes of the Statute of Limitations, except in special circumstances. This amendment is proposed on the advice of the Attorney General.
This is a significant change in what was originally the intention of the Minister. It was pointed out on Second Stage that the scene of the accident in the workplace or elsewhere would not have the protection or an order of inspection 16 months later or whatever duration of time had elapsed from the time it was processed by the PIAB. The claimant was being placed under a very serious disadvantage in the event of the case ultimately going to court where liability would be firmly contested by the respondent.
Subsection (3) will reintroduce the court system into the equation. If the remit of the board is extended to traffic accidents and it takes the full measure of time to be processed, which may be up to 21 months, and if damage has been caused to the road or on a bad bend in the road, does that mean that Roscommon County Council or Kilkenny County Council cannot improve or repair the road? It would be interfering with the grounds under which the claim arose and the location where evidence is required to be preserved would not be adhered to under this section. It is the practical implementation in which I am interested. It would be expensive for the claimant to go to the High Court.
I reiterate the point made by Deputy Hogan. This seems an extraordinary insertion. At the moment we have a simple, fast-track process which excludes lawyers; the effect of this provision is that an unfortunate person who is injured is expected to go to the PIAB without legal advice, go through the process and discover at some stage that he should be in the High Court seeking an interlocutory injunction. How is this supposed to dawn on him? Is he required to read the primary statute and decide that although he is happy with the PIAB process for looking after his injury, he had better get himself down to the Four Courts, find his way to a judge and obtain an interlocutory injunction by himself? How does that slot into the logic of the Tánaiste's argument on the last amendment we discussed?
What would be the consequences for industry if such an order were granted by the High Court? I can imagine the pints not rolling off in the Guinness factory any more, for example, although I am not a Guinness drinker myself. I can imagine the consequences for industry at large if such an injunction were granted. Factories all over the country could come to a standstill. This is a significant deviation from the original Bill.
To follow on from DeputyMorgan's point, subsection (3) of the amendment mentions "an order requiring evidence to be preserved or restraining interference with the condition in which the place of any accident or occurrence is in at a particular time". Effectively, we are talking about closing off an area in the event of an accident on a road, for example. We are creating a crime scene such as we see on television, in which people must wait for somebody to come down from Dublin to carry out an investigation. This does not make sense. There is no practical input into an amendment such as this; it is all theory.
That is how it was years ago. They are trying to reintroduce it.
This is the existing law. On the advice of the Attorney General we are writing it into the Bill to put it beyond doubt.
No. The Tánaiste is missing the point again.
Allow the Tánaiste to continue. I will allow the Deputy to speak afterwards.
It is the existing law.
Under which Act?
Never mind, we will find the Act.
I understand the Deputy's point, but anyone who practises the law is well aware this is the case. I understand from a practitioner in the last——
This is where we make the law.
We will return to the Deputy in a second.
We have already made this law and we are simply writing——
I am seeking clarification.
It is already the law and we are writing it in here to put it beyond doubt.
The Tánaiste needed a legal expert to tell her that.
Allow the Tánaiste to respond.
I am not a legal expert and I am sure the Deputy is not either. I do not claim to know all the answers.
We are fortunate in that we have a few infallible members.
As it happens, this matter was raised in the Seanad. We are responding to the concerns of Members.
I never said——
Allow the Tánaiste to continue. When members ask a question, they must allow the Tánaiste to respond.
Does the Deputy want me to quote what I said about several issues? I will not waste their time. This is the existing law; in order to ensure there is no doubt about it we are writing it in here, on the advice of the Attorney General. This matter was raised in the Seanad. Furthermore, under current health and safety legislation, as I said earlier in response to questions about liability, if there is an accident in the workplace the Health and Safety Authority is required to inspect the location and keep records of this, and the claimant is entitled to see those records. If there is a motor accident involving personal injury the Garda Síochána is required to inspect the site. We have an enormous amount of data on this at the moment, but we want to put this provision beyond doubt. I was told by somebody who has been a practitioner in this field for the past 20 years that he has never seen it used, but it is there and it can be used in exceptional circumstances. In addition to preserving the scene of an accident, the provision requires that assets cannot be transferred out of the jurisdiction and so on. It goes beyond the matter of the scene of the accident.
Is the amendment agreed to?
The Tánaiste did not answer the question about practical considerations in the case of a road accident or, as Deputy Morgan mentioned, an accident in a place of business. Must the business wait for 16 months or until such time as the PIAB process is concluded in order to ensure the evidence is preserved in the event of the case going to court?
No. Obviously there are practical considerations. Evidence must be preserved, but a hole will not be left in the road to cause other accidents and other claims. This is nothing new - it is existing law.
The Tánaiste is talking about liability being parked.
It is possible, then, that liability could be an issue 16 months later if the case goes to court.
The purpose of this provision is to make sure the records are in existence if the matter goes to court.
Just the records?
Yes, the records of the evidence and the records proving that the assets are in the jurisdiction.
Are audio and visual records involved?
The Tánaiste is now——
The records must show that the assets of the respondent have not been moved outside the jurisdiction, making it impossible for people to be compensated.
The amendment states that the condition of the place of any accident or occurrence is not to be interfered with.
The amendment repeats what is in the existing law. There is a requirement under the existing law, if there has been an accident, for the local authority or other body to put right any dangerous conditions.
The amendment reintroduces the potential——
I am re-enacting this provision on the advice of the Attorney General and in accordance with the wishes of the Seanad. We want to put it beyond doubt that the claimant cannot be disadvantaged by a rogue employer, for example, who destroys all the evidence. As I said, several records will be available to the claimant, including health and safety records and Garda records. We are putting beyond doubt the provisions that exist under the current law, which are rarely, if ever, used.
The claimant must invoke jurisdiction to go to the High Court.
This is extraordinary.
All the costs of going to the High Court must be met by the claimant.
Who does the Deputy think should meet them?
The Tánaiste said this would be a paper-based exercise.
She said there would be no problems, yet she is sending the claimant back to the courts and bringing in people from the legal profession in order to load costs on the claimant. This is completely contrary to what she said would be the case.
Before the Tánaiste comes in——
Since it is an existing right that is rarely invoked——
The Tánaiste knew about this when before she drafted the Bill.
This is the law of the land. Will the Deputy accept that?
Chairman, we make the law. If something is already on the Statute Book, we amend the law if we feel it is absurd.
That is correct.
That it is there does not mean we cannot change it. Let us deal practically with what the Tánaiste is saying. She did not answer my question, which dealt with the principle of establishing a paper-based, non-legal, simple injury compensation scheme. In the middle of the process of establishing this scheme the Tánaiste is parking a very complicated mechanism of which the claimant is supposed to be aware. The claimant may be a factory worker, a person driving a car or a pedestrian; he may have disabilities of some kind, or may not be especially literate. He could not be expected to be aware of the law. How is he supposed to realise that to preserve his rights properly, he must go to the High Court to ensure the scene of his accident is preserved?
The Tánaiste says the provision is to strike against rogue employers who destroy evidence. She cannot argue it both ways. I am numbed with shock at what the Tánaiste is saying. The Attorney General has told her to put this provision into the Bill, although it is a complicated procedure which can only be invoked through application to the High Court. The claimant is the only person who can invoke it, yet he is encouraged not to have any legal advice, and if he does take legal advice he must pay for it himself. This is a sham and a nonsense.
I must repeat that this is an existing provision in the law. I understand the Deputies' points. I will check later, but no practitioner to whom I have spoken can remember it ever having been used. Members of DeputyHowlin's party raised this matter in the Seanad, upon which we raised it with the Attorney General. It was felt, as is often the legal advice in these cases, that if it is existing law it should be repeated.
On the question of vulnerable people not knowing their rights, or knowing them only if they go to lawyers, the PIAB will have a duty of care to ensure people are informed of their rights. There will be helplines and the staff will be trained by the National Adult Literacy Agency on how to deal with vulnerable and illiterate clients.
Will the claimant receive the same training?
The Deputy should allow the Tánaiste to conclude. He will be called next.
The board will be there to advise the claimant. Is Deputy McHugh for or against this? I had understood that he was for it.
I am for it but I do not want this Bill to go through the Houses and be enacted before we find all the blemishes in the system.
Allow the Tánaiste to conclude. I cannot invite Deputy McHugh to speak because he does not know when to stop.
We want to sort them out now.
Will the Tánaiste please address the point?
That is why we are here.
Does Deputy McHugh think the claimants should get legal training as well because the way people are talking here we will make every claimant a lawyer before we are finished.
I have outlined the position as advised to me, but to put the matter beyond doubt we are not interfering with any rights the claimants have at present. We want to ensure that in the small minority of cases where claimants feel they must go to the courts following a PIAB assessment their rights will in no way be damaged as a result of the establishment of the PIAB.
There is a question here about the quality of the evidence. For example, it is not possible to preserve the scene of a motor accident. How will a motor accident be re-enacted? Is it going to depend on the records of the gardaí, who are not qualified to record such a situation? If the Minister saw a garda sketch of an accident she would understand. One would need special training to decode it at times. This is the problem with which we are dealing.
What is the Deputy's question?
It is about the quality of evidence available to the claimant in the event that he or she has to go to court. Who is going to record all the evidence? What will be that person's qualifications? Is the claimant to be expected to rely on the records of the Health and Safety Authority or will he or she be prevented from having an expert record the situation on his or her behalf? Will the claimant ever get that opportunity? The Tánaiste knows that if one is working on behalf of another person and visits the scene of an accident one focuses on the client's point of view. If one is working for the Health and Safety Authority one's focus is different.
I accept the Tánaiste's point about preserving the scene of an incident in a case of serious crime but I am not sure that this is the best place to include such a provision. For example, if a company sends out an employee to repair the crash barrier on the Red Cow roundabout, and a vehicle strikes that employee, the vehicle which struck the employee cannot be moved because it is evidence. It could result in up to two lanes of the roundabout being closed——
The stilts are being put up.
We will certainly need them but they may be closed off too, so that might be relevant.
The Deputy should stick to his question.
I accept the point because we have all seen pictures of the State Pathologist attending scenes of serious crime and there is no doubt that in such cases those areas need to be preserved. Is that the case in this Bill? Is this the place for it? Given the example I have cited - I could give several more with which there is no need to bore the Tánaiste - this is the wrong place for it.
We are going from the sublime to the ridiculous here. No one is suggesting that it is necessary to keep a big hole in the road and cause injuries to hundreds more people. We are talking about preserving evidence.
The Bill refers to the condition of the place in which the accident occurred.
Unlike Deputy McHugh I have great confidence in the Garda Síochána and the Health and Safety Authority, which has to keep records. Furthermore, if somebody is out of work for three consecutive days as a result of a personal injury the employer is required to call in the Health and Safety Authority. We have very good mechanisms to support claimants. We are making sure that no one accuses us of taking away any rights that the claimant has under the current unsatisfactory adversarial system.
I have confidence in the gardaí as well to do their job which they are qualified and trained to do. Recording the scene of an accident, however, is not the job of a garda, it is the job of an engineer. The gardaí are not engineers. That is the point I was making. I do not want it to be thought that I am casting aspersions on the gardaí because I am not.
That is clear.
I have a simple straightforward focus on this. There are two issues here. First, the Minister is beginning to sound like the Queen of Hearts in Alices Adventures in Wonderland; words say what she intends them to mean not what she says. She wants to insert into the legislation a section, which she says replicates an existing law without saying which law, to define “an order requiring evidence to be preserved or restraining interference with the condition in which the place of any accident or occurrence is in at a particular time.” If a court gave an order under this section it would mean, in plain English, allowing for the preservation of the condition that pertained at the time of the accident. If the Tánaiste intends to preserve some documentary evidence instead of the scene, her amendment is wrong. She needs to take issue with the Parliamentary Counsel, not with us.
Second, how is the claimant to know that he or she should do this? Who is to advise him or her?
Who advises claimants at the moment?
Do they? Apparently this provision is never used.
It is more serious if the Tánaiste says it is never used but she can lob it in here.
We are putting it in here so that we do not stand accused of interfering with claimants' rights as they stand.
Is it appropriate?
Deputy Howlin's party raised this in the Seanad.
It was raised in the Seanad and subsequently with my officials at the Parliamentary Counsel and that is why it is being introduced here.
The issue was raised in the Seanad in the context of someone going to the PIAB. It refers to the point I have made on the issue of liability. If a person enters into the PIAB process in good faith simply to have the degree and quantum of an injury determined and at the end of the process finds that he or she has to prove liability the person is at a disadvantage because he or she has wasted time, so this is a mechanism to enable the person to preserve the evidence from the beginning. It would be very wasteful if the person had to do both. If everybody feared that at the end of the process he or she needed to prove liability and go to the High Court to seek an order, that will clog up the High Court. People will have to hire lawyers because nobody is going to go to the High Court alone to look for an interlocutory injunction.
It is a triple layer rather than a double layer.
It does not make sense to do it that way. Surely it makes more sense simply to remove the issue of liability as this would mean there would be no necessity to preserve scenes for this process.
Much of the debate here, in the Dáil and in the Seanad, concerned this issue of depriving claimants of a right which they have in the current system. We want to make sure that we put that legally beyond doubt, as well as giving whatever assurance we can. Ultimately, my assurances will not matter, it will depend on the law. The law, as it was framed prior to this amendment, may have given the impression that we were denying something to claimants which they already had. We are simply inserting this provision on the advice of the Parliamentary Counsel - it having been raised in the debate - to ensure the matter is put beyond doubt, no rights are being interfered with and nothing can happen under this system which does not already happen under the current system that can subsequently adversely affect one's court rights. If a claimant or respondent refuses the assessment recommendation made by the PIAB, one's court rights will not be interfered with in any way.
That is legally beyond doubt.
The Tánaiste has not yet given the legal reference for this section.
I have not yet received it.
The Tánaiste will no doubt give it on Report Stage. Does the Tánaiste accept that the laudatory remarks made by her and by all of us about the principle of the PIAB have been negated by the insertion of this section? We did not know about this until today. A claimant cannot now do anything about going to the PIAB unless he or she considers going to the High Court. The suggested insertion of the line, "if it wants to restrain interference with the condition in which the place of any accident or occurrence at any particular time" is a very serious matter. If claimants want to ensure that they do not prejudice themselves in subsequent liability being contested in the courts, which could happen, for example, 16 or 21 months later, then to protect themselves from any eventuality they must, if they are in any doubt, go to the High Court when the claim is made initially and make sure that the place of any accident or occurrence is preserved, with no interference to its condition. That place could be a factory floor or a road.
It will be up to the court to decide.
Does this not defeat the entire purpose of what the Tánaiste set out to achieve, and what all of us thought she was achieving until now, namely a paper-based exercise in a lawyer-free zone?
It does not. If claimants currently do not feel the necessity to invoke this provision, why would they feel the necessity subsequently when the PIAB is established? I assume this provision exists in law to deal with some very exceptional situation which I cannot even envisage. It is clearly a matter for the court to decide to grant or not grant an order.
It would be a help if we were given the legal reference.
I shall get the Deputy the reference. Unfortunately I have not got it at present.
We need a debate about this because it undermines the principle.
It does not undermine the principle. It confirms that a claimant's rights will not be interfered with.
I will try to answer the Tánaiste's question and then put a question to her. She says that the provision exists for exceptional circumstances, but a new mechanism is being inserted. Instead of claimants taking their cases to a court and being given legal advice to argue their cases, we are now asking them to go through this process, which is without lawyers, and which will take some time to enact. The Tánaiste said that although liability is not at issue, it can become an issue at the end of the process if the respondent decides to contest liability at that stage. In such an instance there will be an onus on the claimant to make a case for liability, and the only way the claimant will have evidence is through having gathered it in the first instance.
The Tánaiste began by saying that the Health and Safety Authority exists, along with Garda reports, and she asked what more would claimants want. On that basis she debunked our previous case for liability. Now the Tánaiste is saying that the law enables someone to go to the High Court to preserve a scene in order to establish liability. How is the unfortunate claimant to know that he or she should, ab initio, go to the High Court to seek an interlocutory injunction? Is the Tánaiste suggesting that the individual should be able to do that on his or her own initiative, arriving in the Four Courts on a Monday morning, finding his or her way to the right court, presenting a case to an appropriate judge and obtaining such an injunction without legal representation or help?
As I understand it, the current position is that the gardaí gather evidence, for example, about a crash scene. They are under legal obligation to do that for the purposes of any court case that might ensue from a car accident. Under the particular provision before us, which is now being codified in law, one cannot be disadvantaged if, for example, some county council engineer decides, after the gardaí have gathered evidence, that there is something material to the accident which cannot be removed, for example by a county council employee working on the road. That is what this provision is about. It is a simple, practical matter.
It is most impractical.
The provision will mean that one will not have evidence destroyed while a case is ongoing, be it through the PIAB or a subsequent legal case.
How does one get the order from the High Court?
Is the claimant expected to apply to the High Court?
Irish claimants are fairly well versed. They will know when their claims are being undermined. Deputy Howlin is presuming a level of stupidity about such matters.
Will claimants have to go to the High Court for an injunction? Does Deputy Lenihan think an ordinary citizen could apply to the High Court without legal help? That is absurd.
If this is such an important provision, and it is so important that it be used, I wonder why it is not currently used with the system we have.
The Tánaiste is bringing in a new system.
What has been suggested here is that the ordinary citizen will have to find out about such a matter and apply to the High Court, with nobody there to give advice. There is a duty of care on the PIAB, which applies particularly to vulnerable citizens. The PIAB will have its own in-house legal expertise. I can assure the committee that the PIAB will leave no stone unturned in ensuring that people are aware of their entitlements. I wonder how many claimants who have gone through the current system are aware that this provision exists.
They get legal advice.
I wonder how many of them were ever told they could get a legal order.
They get legal advice. The Tánaiste said legal advice will not be needed.
I envisage that this kind of regime, under which it is clearly up to the courts to decide to grant an order, will arise only in very exceptional circumstances. I cannot currently even think of any circumstances in which an order might be granted.
The Tánaiste is asking for liability to be parked, and for people to be second-guessing the liability decision which might be made some 16 or 21 months after the claim is made. Claimants will, therefore, have to apply to the courts at the outset in order to have the scene protected.
What we are trying to do, hopefully with the support of all sides of this committee, is to provide a mechanism that is claimant-friendly and will deliver what people are entitled to as quickly as possible. We are trying to do that in a way which does not interfere with any rights that people currently have. We stand accused by many people who have written to Deputy Hogan, to me and to many others, of seeking to interfere with claimants, and to be putting in place a State body which will be friendly to the insurance industry. That is not what we are doing. Where there are existing provisions in the law, we want to ensure they are repeated in this legislation, so that we can put beyond doubt the idea of a claimant's rights being put at risk.
The Tánaiste is setting out to achieve with this legislation a paper-based exercise that reduces the cost of litigation, of claims, in order to reduce premia costs for policy holders. What she is inserting in the section under discussion is an opportunity for claimants to go to the High Court, which reintroduces lawyers. Claimants are being given legal advice that liability is not an issue. The Tánaiste is asking them to park liability for a process that is a lawyer-free zone. She is now introducing lawyers into the system again.
Parking liability makes it a lot easier for claimants, who would otherwise have to establish liability.
The Tánaiste is inserting the right of claimants to apply to the High Court. How does she envisage the claimant would vindicate that right?
That would be——
I am sorry. I did not realise Deputy Conor Lenihan had been appointed Tánaiste. The Tánaiste is restating the right referred to, in a new process, without lawyers. Under this new process, how does she envisage that the claimant would vindicate that right, or does she agree with Deputy Conor Lenihan that every citizen is capable of going to the High Court and applying without help for an interlocutory injunction?
The claimant must do so.
It seems I have senior counsel with me.
This will be used only in the kind of rare circumstance that I cannot even envisage. Having spoken to those who practise the law in this area, a number have told me they never heard of this provision being used. I want to repeat, we do not want to take any rights away from claimants.
The right is vindicated, however, only if it can be utilised. How will they vindicate that right?
By going to the court and getting the order - and only if they get the order.
They can get legal advice. The PIAB can advise them.
Is the Tánaiste suggesting the PIAB will advise them?
The PIAB has a duty of care to ensure people are looked after. It has its own in-house legal expertise. How are people advised at present?
How can this duty of care come into play if the PIAB does not realise the respondent is going to make liability an issue at the end of 16 months? How, therefore, can the PIAB advise a claimant that liability is an issue and that he or she had better go to the High Court to get an order to preserve the scene? The PIAB cannot advise the claimant because it does not know that liability is going to become an issue. If liability does not become an issue there is no need for the order and there is no need to preserve the scene.
The Tánaiste is working in reverse. There are serious issues here and it is hard for them to be addressed forward and back like this. Will the Tánaiste reflect on them? Perhaps we could approach them again. The issue of liability is linked and the question of professional advice is linked. There is a trail of issues here and unless it is resolved claimants will be disadvantaged.
The committee has had a good quality of debate on this section. It has spent almost an hour on it. Is the amendment agreed to?
We are not opposed to the amendment, but it totally alters the Bill.
The Deputies have made known some serious views to the Tánaiste. I am sure when it comes to Report Stage further clarification will be provided.
I would not count on it.
Amendments Nos. 12 and 13 are alternatives, as are amendments Nos. 14 and 15. As amendments Nos. 12 to 15, inclusive, are related they may be discussed together by agreement.
I move amendment No. 12:
In page 12, subsection (1), line 28, to delete "As soon as practicable" and substitute "Within 10 working days".
The purpose of the amendment is to give certainty to the timescale involved. The timescale is open-ended in a number of the sections as regards procedures being passed through the PIAB. The only element of expedition I can find in the Bill is in the wording of the explanatory memorandum. There is none in the Bill, which is filled with loose phrasing as regards time limits. It is not good enough to state "as soon as practicable" or "within a period specified". The Bill should be clearer and more specific about these aspects. Time limits must be as expeditious as possible.
I am not sure if the time limits referred to in the amendment are appropriate. Is it possible to get the business dealt with in that time? If not, the sooner the process may be completed through the PIAB the better.
A good point.
Are we dealing with all those amendments together?
We are dealing with amendment Nos. 12 to 15, inclusive. Two of them are in the name of Deputy Howlin.
Again we are concerned with a process——
We are on amendment No. 12.
I am referring to amendmentNo. 13.
I suggest we first discuss amendment No. 12. The Deputy is speaking to amendments Nos. 12 to 15, inclusive.
I am speaking to amendments Nos. 13 and 15 in my name. Amendment No. 13 states: "In page 12, subsection (1), line 28, after "practicable" to insert "and, in any event, within 14 days"." I suggest the insertion of these words because there should be a clearly defined legal timeframe here and elsewhere in the Bill. A timeframe such as "as soon as practicable" means nothing. If we are serious about an expeditious process we should determine what is an appropriate time. I have suggested 14 days in amendment No. 13 and 21 days in amendment No. 15. If the Tánaiste says there is a reason those numbers are inappropriate I have no fixed mind on that but I hold the strong view that there should be a specific timeframe in the statute for the various procedures to be accomplished.
We are trying to establish an organisation that will deliver to claimants in a speedy fashion. While there are time limits for the termination period of the PIAB we must also be practicable. Many of the amendments can be more appropriately dealt with by way of the rules of the organisation than by way of statute. Let us be realistic. We do not want to insert deadlines in the Bill that might prove unworkable. For example, sometimes claimants make a mistake about the respondent, which may be the case if there is company which belongs to a group. We are open to very tight deadlines if we want to do it by way——
I will withdraw the amendment but the timescales are already envisaged in the legislation. They are too long at nine months, six months and a further six months if a request is made. This adds up to 21 months, which is an enormous amount of time considering the issues discussed earlier. I ask the Tánaiste to reflect on it before Report Stage with a view to reducing the timescale.
There are some that can be dealt with by way of the rules. To be fair, we must deal with the position from the time a stable medical report arises. In the immediate aftermath of an injury that is not possible. The extension of time can only happen with the agreement of the claimant. Those issues arise further on. The intention is to deal with matters as quickly as possible and I have no doubt that would be the intentionof the board in determining any rules it establishes.
I am minded to have regard to what the Tánaiste has said. My amendment No. 13 seeks to amend section 13(1), which reads: "As soon as practicable after receipt of an application under section 11 the Board shall serve the following notice. . . ". I propose it should read, "As soon as practicable and, in any event within 14 days. . . ". It is not a huge difficulty to fix some timeframe.
Amendment No. 15 seeks to deal with the response of the respondent to a notice. This cannot be open-ended. I recognise the board can specify the period within the notice but what time does the Tánaiste envisage would be appropriate?
That is an issue I would like to discuss with the board. I envisage the shortest time period that is practical. I understand issues arise in the business of trying to identify the individuals through PPS numbers and so on. Things are not as simple as they appear. I will later accept some amendments on the time related issues but the intention is to have rules that are tight on time but are practical in their application.
Amendment No. 16 has already been discussed with amendment No. 7.
I move amendment No. 16:
In page 12, subsection (1)(a), line 39, after “states” to insert “in open correspondence to the claimant that the respondent accepts liability for the claim and states”.
I appreciate the amendment has been already discussed. I am advised it is required to avoid injustice. I wish to reiterate that the Tánaiste is reflecting on that aspect for Report Stage. On that basis I will withdraw the amendment.
Amendments Nos. 17 to 20, inclusive, are related. Amendments Nos. 18 and 19 are alternatives, therefore, amendments Nos. 17 to 20, inclusive, may be discussed together by agreement.
I move amendment No. 17:
In page 12, subsection (1)(a), line 40, to delete “the period specified in it” and substitute “one month”.
I have tabled these amendments to ensure insurance companies can conclude their business within a particular timeframe and that cases will not drag on indefinitely. It is reasonable to require an insurance company to issue a response within one month. The purpose of the amendment is to give certainty to claimants that cases will not be indefinitely prolonged and to assist in the speedy and effective delivery of the PIAB process.
The same answer applies. The intention is to deal with all these matters in the rules of the organisation.
Amendment No. 18 is in my name but it deals with a different issue. However, it is one we have already rehearsed well and I do not intend to spend much time on it. It concerns the issue of liability. The amendment proposes the deletion of section 14(1)(b), which provides that if a respondent “fails to state in writing, in response to that notice, within the period specified in it, whether or not he or she does so consent, then the Board shall . . . arrange for an assessment to be made”. In other words, the PIAB process begins. There is no requirement on respondents to come to grips with the claim and decide whether liability is accepted under the provision which the Tánaiste has defended. They can do nothing. Nor is there an incentive on them to come to grips with the application and accept or contest liability, if necessary by recourse to the courts.
If they do not reply within a specific time they are deemed to have consented to the assessment being made.
That is the point I am making.
I am advised that the devolved procedures in this section are in accordance with the court rules on failure to respond on the service of legal proceedings and we cannot go beyond that.
It comes back to whether one accepts liability.
If one looks at the role of the respondent in an insurance company, a claim can be made but nothing can be done about it. It is allowed fester. Since there is no response it is placed with the PIAB and a decision is made. Without having expended anything the respondent can decide to challenge liability. There is no need for it to engage proactively with the process and make a determination to have a quick and early decision.
Except to say it will pay for it. Any organisation that pays the costs will not be inclined to avoid responding. These issues can arise after the determination. On the question of time limits, they will be very strict but they should be the responsibility of the board. To impose them in statute could prove unworkable. I accept most of the points being made, as does the board of the PIAB. It intends to prove quickly its credibility in this whole area. Time is not something it will ignore.
I accept the Tánaistes point that it may be easier to change them by regulation or by the board.
Amendments Nos. 21 and 48 are consequential on amendment No. 44 and may be discussed together by agreement.
I move amendment No. 21:
In page 14, line 1, to delete "Neither" and substitute "Subject to section 32(4) neither”.
The amendment concerns an issue we have already discussed, that of liability. I will not rehearse the argument.
Is the amendment being withdrawn?
We have already discussed the issue involved and I am strongly opposed to it. However, I will withdraw the amendment.
I strongly oppose the section on the basis that it creates a legal fiction. It is a fallacy in that it seeks to deny the existence of the admission of liability.
I am afraid I have to oppose Deputy Hogan's position on this.
That is terrible.
I move amendment No. 22:
In page 14, subsection (1), line 12, to delete "be required to".
If the Personal Injuries Assessment Board route is inappropriate for the reasons specified in the section, the PIAB should not have jurisdiction to assess regardless. Section 17 states: ". . . the Board shall not be required to arrange for the making of an assessment under section 20 of the relevant claim concerned (or, as appropriate, shall discontinue any such assessment the making of which it has arranged) if . . . ”. My view is that the words “be required to” should be deleted.
The intention is to give the board some discretion, and that is desirable. Circumstances may arise where there is a good deal of case evidence which the board will be able to draw on in making determinations. New situations may arise, however, and the best option is to leave it in this discretionary framework rather than have it too prescriptive.
The Tánaiste is saying it should not be required to do it but it may do it. If it is inappropriate, it is inappropriate.
The board would have to decide whether it is appropriate. The idea is that the discretion should rest with the board. If it believes something is inappropriate, it will not deal with it. It will not put itself up to have an assessment shot down if it has not got, for whatever reason, the expertise, sufficient data, precedent or some new issues that arise. The board would want those determined by a court rather than the PIAB.
If it is inappropriate under the terms of section 17, in what circumstances should the PIAB continue to make an assessment?
Section 17(1)(iii)(II) states: ". . . because the injury or injuries alleged to be sustained consist wholly or in part of psychological damage the nature or extent of which it would be difficult to determine by the means of assessment to which the assessors are limited. . . ". There may be some psychological issues on which it would be well able to make a determination but others may arise on which it would not be able to so do.
A good deal of thought went into this provision. We want the PIAB to do as many assessments as possible but evidence or circumstances change over time or a good deal of precedent may be established in new areas which we cannot think of now. The idea is that where the board does not have the confidence, for whatever reason - either something is new or it does not have the specialist expertise required - it is better that the matter not be dealt with by the board. Given that it is a claimant board, however, it is better to leave the discretion in these matters with the board and not to have it restricted in statute.
I accept the Tánaiste's view.
We now move to amendment No. 23. Amendment No. 28 is related to amendment No. 27 and amendment No. 29 is cognate. Amendments Nos. 28 and 29 are alternatives. It is proposed to discuss amendments Nos. 23, 27, 28 and 29 together by agreement.
I move amendment No. 23:
In page 14, subsection (1), lines 16 and 17, to delete subparagraph (i).
The amendment proposes to delete a subsection which makes it mandatory for the board not to make an assessment if a respondent does not pay a charge imposed on him or her. A subsequent amendment provides for the discretion of the board not to make an assessment in such cases.
I move amendment No. 24:
In page 14, subsection (1)(iii), between lines 40 and 41, to insert the following:
"(III) because aggravated or exemplary damages are bona fide (and not for the purpose of circumventing the operation of this Act) sought to be recovered in the relevant claim, or".
I move amendment No. 25:
In page 14, subsection (1)(iii)(III), lines 41 and 42, to delete all words from and including "in" in line 41 down to and including "person," in line 42.
This amendment relates to section 17(1)(III) which states: ". . . in case the relevant claim arises out of a trespass to the person, [I understand that is a legal phrase] because the making of an assessment of the claim by the means to which assessors are limited to employing by this Act would not respect the dignity of the claimant, or. . . ". Why should the dignity of a claimant only be protected in cases of trespass to the person? It struck me as I read it that there should be a blanket prohibition on proceeding where it would trespass on the dignity of the person without the specific nature of trespass to the person as a legal entity being the only case. Perhaps I am not making my point clearly. The words "respect the dignity of the claimant" should be enough. If it does not do that, it should not proceed to make an assessment.
Trespass to the person is a legal term.
The PIAB environment would not be an appropriate one in which to deal with those kind of cases. That is the intention of——
I have no difficulty with that.
Is the Deputy saying the dignity of the person is not referred to elsewhere in the Bill?
It should not act where employment by this Act would not respect the dignity of the claimant but only in so far as it relates to a claim arising out of trespass to the person. Surely it should have general application and, in any case, where the employment of this Act would not respect the dignity of a claimant it would be inappropriate.
That is a fair point. I would like to reflect on it.
On that basis I withdraw the amendment.
I move amendment No. 26:
In page 14, subsection (1)(iii)(III), line 44, after "not" to insert "in the opinion of the claimant".
This relates to the same subsection. Even if we were to remove "trespass to the person" and there was a general provision to respect the dignity of the claimant, who will make the determination on the question of respect? I suggest it should be the claimant.
There may be a difficulty that but I would like to reflect on the issue before Report Stage.
I move amendment No. 28:
In page 15, lines 26 to 31, to delete subsection (3) and substitute the following subsections:
"(3) In addition to the grounds specified in subsection (1) for its not doing so, the Board may, in its discretion, decide not to arrange for the making of an assessment under section 20 of a relevant claim if a charge imposed by it pursuant to regulations under section 22(1) on a respondent has not been paid to it; any such decision shall be recorded in writing by the Board as soon as may be after it is made.
(4) It shall be the duty of the Board, as soon as may be after recording an opinion or a decision referred to in subsection (1) or (3), to issue to the claimant concerned a document that contains the statement and operates to have the effect mentioned in subsection (5).”.
I move amendment No. 30:
In page 17, subsection (2), line 21, to delete "come" and substitute "came, before the commencement of this section,"."
This amendment corrects a minor grammatical error.
I move amendment No. 31:
In page 18, subsection (1), line 28, after "documents" to insert "in the possession or control of the claimant".
This amendment places the same requirement on claimants to provide information or documents as is placed on respondents in the next subsection. It is unfair to oblige a respondent to produce documents in the possession or control of the respondent or respondents while obliging claimants to furnish all information or documents, regardless of whether they are in their control. In accepting this amendment, the obligation of the claimant will be equal to the obligation of the respondent in terms of the material that would be supplied to the PIAB.
Deputy Hogan makes a good case and I am prepared to accept the amendment.
Amendments Nos. 33 and 34 are cognate to amendment No. 32 and they may be discussed together by agreement.
I move amendment No. 32:
In page 19, subsection (2), line 13, after "more" to insert "registered".
I hope the Tánaiste will readily accept this amendment. It proposes to insert the word "registered" in the appropriate place. Citizens should not be required to submit themselves to examination by anybody other than registered doctors.
I cannot accept this amendment because I am advised it may cause difficulties in terms of competition law.
Is it the case that quacks are in competition?
If people want to use them and have faith in them, as some people do, they can certainly submit the evidence. In those circumstances, they would be referred to the medical referee panel, which is the reason for having such a panel. I understand that in current cases only a tiny minority of people ever use non-registered medical practitioners, and I am sure that will be the case in this instance. In the event that somebody sends in medical evidence from a person in whom he or she has confidence and who is not a medical practitioner, such evidence would be referred to the panel of medical referees, the members of which are all registered doctors.
In terms of food and everything else, we require standards. Irrespective of what the Tánaiste says, by way of advice she received, we should look towards evidence from registered medical practitioners as being the evidence to which we would have regard.
If one takes the case of registered practitioners, somebody could be registered abroad and he or she may not be registered under the relevant Act in this country. The Deputy can take it that the medical evidence on which the PIAB will make an assessment will be that of a doctor submitted by a claimant or an independent medical panel of 300 plus doctors that the PIAB has assembled. Members of the panel will be available regionally and there is no question of anybody being referred to anyone other than a registered practitioner.
I would rather such provision was in the primary statute.
It would involve a good deal of difficulty to write it in.
I accept the Tánaiste's assurances.
I move amendment No. 35:
In page 19, subsection (1)(b), line 27, to delete “section 23(2)” and substitute “section 23(3)”.
This amendment is designed to correct an incorrect cross-reference to another section. I admire the genius who can go through all of this and find such references.
Amendment No. 39 is related to amendment No. 36 and both may be discussed together by agreement.
I move amendment No. 36:
In page 20, subsection (1), line 3, after "them" to insert "within one month of the request".
This amendment is in a similar vein to a number of previous amendments regarding the setting of time limits to speed up the process. I presume I would get the similar answer to that which was given to those other amendments.
I move amendment No. 37:
In page 20, subsection (1), line 15, after "Act" to insert ", and it shall be the duty of such person to comply with such request".
This section empowers the assessors to request documents from other sources. The amendment is basically technical because its purpose is to ensure that those other sources are explicitly required to comply with the request for documents.
I am happy to accept this amendment. I want to show how reasonable I am.
It is appreciated. We are making good progress.
I move amendment No. 38:
In page 20, subsection (3), line 23, after "company" to insert "or undertaking".
This is a technical, drafting amendment.
I move amendment No. 41:
In page 21, subsection (3), line 44, to delete "as soon as may be" and substitute "within 10 days".
This amendment proposes the setting of time limits.
I move amendment No. 42:
In page 22, between lines 2 and 3, to insert the following subsection:
"(5) For the avoidance of doubt no statement contained in any medical report or other document furnished to the assessors in respect of the relevant claim concerned, of itself, gives rise to any duty on the part of the Board to do one or more of the things specified in subsection (2).”.
The purpose of this amendment is to insert a new subsection to the effect that anything contained in a document furnished to the assessors does not of itself give rise to any duty on the part of the board to do one of the things specified in the subsection, for example, advise the claimant of the desirability to seek legal advice or provide certain assistance or explanations to the claimant. The duty of care in this section arises out of the board inferring from the claimant's actions that he or she do not properly appreciate the legal consequences of taking a particular step.
I move amendment No. 43:
In page 22, between lines 6 and 7, to insert the following subsection:
"(2) A notice under this section shall not contain any particulars relating to the Board's opinion of the claim other than the amount of the assessment and in particular shall not disclose any information obtained by the Board pursuant to sections 26 to 28.”.
The purpose of this amendment is to insert a new subsection (2) after subsection (1). The objective is to safeguard the claimant in the event of a subsequent court action. It is important that details compulsorily acquired from a claimant for the purposes of the PIAB should not be furnished to the respondent, otherwise any subsequent legal proceedings are prejudiced to the disadvantage of the claimant.
I cannot accept this amendment. We have to be able to explain the basis on which an assessment is made.
Does the Tánaiste understand the point I am making? If a claimant's case is compulsorily disclosed to the PIAB and that is an open book, surely subsequent litigation is prejudiced.
One would have to be able to make the respondent aware of the claimant's claim, otherwise, one cannot expect the respondent to decide that, regardless of the circumstances, he or she will agree to X, Y, or Z. Medical evidence will have to be made available to the respondent. If one is a respondent and a claim comes in against one through this process, surely one is entitled to know the basis on which the claim is being made, the medical evidence on which it is based and the details about how the board came about the assessment. I do not see that as damaging anybody's rights.
We are back to the same net issue. We are saying we trust the PIAB to make a fair determination, but both sides must make that trust. If a respondent is properly represented in terms of the structures by way of an independent board and a panel of medical experts available to it, why would he or she not accept the board's determination? If the Tánaiste says that there must be full disclosure of all the facts garnered to justify the decision of PIAB, would she accept that subsequent litigation would be prejudiced? If she does, how would she go about ensuring that the rights of a claimant are not simply flushed out through the PIAB process and the very issues exposed through that process are not attacked in subsequent legal proceedings?
It is good to give a breakdown of the assessment arrived at, the medical expenses involved, the days out of work and the damages. That is good for a claimant and important for a respondent, but it may make the difference between a respondent agreeing to accept what may appear to him or her to be a high award and agreeing to pay it or going down the legal route. Giving information must be a good thing in this process. The more information people have, the more they will be able to make an assessment as to whether they have got a fair deal from the PIAB. That is what we want to encourage.
Is the Tánaiste saying that no issue will arise out of prejudice?
I do not believe there will.
I do not agree with the Tánaiste but I will withdraw the amendment.
It is better if one is aware of the basis on which the assessment was arrived at. That is in everybody's interests.
If one thought the issue of liability would not be challenged subsequently.
It is more likely to be challenged if one does not have the information.
I move amendment No. 44:
In page 23, between lines 11 and 12, to insert the following subsections:
"(4) Notwithstanding the provisions of this Act, where-
(a) the Board makes an assessment in respect of a relevant claim, and
(b) the respondent declines to accept the assessment under section 30, the effect of an authorisation issued under this section shall operate in any subsequent proceedings so as to preclude a respondent from denying liability in respect of the claimant’s claim.
(5) Subsection (4) shall not operate so as to prevent a respondent from contesting the quantum of damages (including any award for costs) that the claimant may seek in such proceedings.”.
This amendment was already discussed in connection with section 16 and amendment No. 21. I am proposing the insertion of these two new subsections because the Tánaiste did not accept the argument concerning section 16. The admission of liability if a key issue and I seek leave to discuss these matters again on Report Stage. Consequently, I will withdraw the amendment.
I move amendment No. 45:
In page 24, subsection (4), line 3, to delete "Subsection (4)” and substitute “Subsection (3)”.
This amendment is designed to correct an incorrect reference to another section.
I move amendment No. 46:
In page 24, subsection (2), line 27, after "any" where it secondly occurs, to insert "lodgement, tender or".
I am moving this amendment on foot of advice I have been given that there is a flaw in the section. Section 35(2) states "Where any enactment or rule of court requires any settlement of a relevant claim to which this section applies . . . ". I am advised, however, that there are no rules of court relating to the approval of a settlement. The rules of court relate to approvals of lodgements or tenders and, therefore, this amendment is required.
I wish to obtain legal advice and will revert to this matter on Report Stage, if that is in order.
Very well, I will withdraw the amendment.
I move amendment No. 47:
In page 25, between lines 16 and 17, to insert the following subsection:
"(5) For the purposes of proceedings which are brought subsequent to an authorisation under this section, a decision of the court under subsection (1) refusing to approve an assessment shall be deemed to be a decision of the court in which the proceedings are brought refusing to approve a lodgement in the amount of the assessment.”.
This amendment seeks to insert a new subsection because I am advised there is a flaw in the drafting of the section, which I will try to explain. If an assessment for a minor is rejected by a judge on application to a court, the proceedings will be brought and that amount will, in all probability, be lodged by the respondent. In those circumstances, there is no protection for the plaintiff because the earlier ruling by the judge has no status in the proceedings. The amendment will give a ruling in the PIAB procedure, with the same status as a ruling in proceedings before a court of law. The amendment is being proposed in the interests of children so that where a judge determines that the award is inappropriate, the judgment for PIAB proceedings will have the same status as a judgment overturning a legal determination of an amount.
I am advised that we cannot trespass on the jurisdiction of the court but the Deputy has made a valid point upon which I would like to reflect. I would like to obtain legal advice on the matter, if I may.
I look forward to debating the matter again on Report Stage.
I move amendment no. 49:
In page 25, subsection (1), line 40, to delete "As soon as may be" and substitute "Within one month".
This amendment is designed to ensure that the process is a speedy one. It is consistent with earlier amendments in which the matter has been dealt with.
I accept the amendment.
I move amendment No. 50:
In page 25, subsection (1), line 43, after "as" to insert "an".
This amendment is required to include the word "an".
I move amendment No. 51:
In page 26, subsection (2), lines 30 and 31, to delete all words from and including "but" in line 30, down to and including "1981" in line 31.
I tabled this amendment in order to seek information. Why is it proposed to exclude section 22 of the Courts Act 1981? Why would the board have less jurisdictional interest than a court?
As I understand it, the 1922 Courts Act deals with interest payable from the date of bringing proceedings to the date of the court award and it specifically excludes that. This is not appropriate to the PIAB, as in PIAB cases the interest will be repayable from the date of assessment.
Amendment No. 52 is consequential on amendment No. 53 and both may be discussed together by agreement.
I move amendment No. 52:
In page 26, subsection (2), line 32, after "shall" to insert ", with any adaptations of them that may be made under subsection (3),”.
This amendment is proposed on the advice of the Attorney General to make it absolutely clear that the rules of court which deal with the various procedures that are available for enforcing a judgment are also available for the enforcement of an order to pay.
I move amendment No. 53:
In page 26, between lines 32 and 33, to insert the following subsection:
"(3) The authority for the time being having power to make rules regulating the practice and procedure of any court (being a court which would have jurisdiction to make an award of the amount or amounts specified in the order to pay concerned) may make rules providing for such adaptations of any enactment or instrument referred to in subsection (2) as are necessary for the purpose of enabling each of the methods that are available for the enforcement of a judgment of that court available for the purpose of the enforcement of an order to pay.”.
I move amendment No. 54:
In page 27, subsection (1), between lines 9 and 10, to insert the following:
(c) any one or more of the foregoing persons and one or more other persons (not falling within either of the preceding paragraphs) who are concurrent wrongdoers as respects the relevant claim,”.
This is a technical amendment provided by the Office of the Attorney General concerning cases involving more than one wrongdoer. It is designed to close off a potential loophole.
I move amendment No. 55:
In page 27, subsection (2), line 14, after "section" to insert "and the following section".
This amendment deals with a technical drafting point to make it clear that the definitions of non-accepting respondent and non-participating respondent in this section also apply to section 43.
I move amendment No. 56:
In page 27, subsection (3), line 41, after "are" to insert "any charge imposed on the claimant under section 22(1) and any other".
The amendment is moved for purposes of clarity, to ensure that charges under section 22 are recoverable.
That will be included in the rules.
Is there a reason why they are not in the Statute?
Can we deal with that on Report Stage?
I am advised that it will be in the regulations but I will look at the matter.
I move amendment No. 57:
In page 27, after line 44, to insert the following subsection:
"(4) Where a claimant or his or her solicitor disputes the amount of fees and expenses specified in a statement under this section, that amount may be the subject of review by the person or authority which would have jurisdiction to review the fees and expenses had they been incurred in proceedings to recover damages amounting to the value of the assessment.".
The amendment seeks to insert a new subsection. No doubt the Tánaiste will have the advice of the Attorney General but I am advised that unless there is some taxation system or independent adjudication system for costs under the PIAB, the section will be struck down because it is unconstitutional.
We are dealing with that in another amendment.
Does the Tánaiste wish to come back to this matter on Report Stage?
In a later amendment.
Will the Tánaiste refer us to her own amendment?
It is amendment No. 59.
I move amendment No. 58:
In page 28, between lines 15 and 16, to insert the following subsection:
"(7) Where an authorisation is given under this Act, the court hearing the proceedings brought by the claimant shall have discretion as to the fees and expenses incurred by the claimant before the Board.".
In examining the way in which the court applies these measures, I am advised there is a flaw which may well give rise to constitutional problems. The individual has no choice but to go to the PIAB and will incur costs in doing so. If that route fails and there is a subsequent requirement to go to court, there must be the possibility to recover costs that are required to be recovered under the law. If, at the end of any process, an individual is determined to be right, surely one cannot impose a cost structure without the means of recovering it at the end of the process.
That was not my understanding of the amendment. The advice was that we could not trespass on the jurisdiction of the courts, which is similar to what I said earlier. I will reflect on what the Deputy has said.
The Tánaiste has much reflecting to do. When are we taking Report Stage?
I move amendment No. 59:
In page 28, between lines 33 and 34, to insert the following subsections:
"(4) If a direction under subsection (3) is given, and the respondent or respondents concerned and the next friend or committee of the claimant cannot agree as to what is the amount, for the purposes of this section, of the fees or expenses reasonably incurred by the next friend or committee in complying with the direction referred to in subsection (1), those fees and expenses shall be taxed by a Taxing Master of the High Court or, if the Board determines it would be more appropriate, having regard to the limited amounts involved, for a county registrar to do so and so directs, the county registrar for the circuit of the Circuit Court in which the respondent or any of the respondents concerned resides or carries on business.
(5) A reference in this Act to an amount specified in an order to pay shall, in so far as the reference relates to an amount the subject of a direction under subsection (3), be deemed to be a reference to the amount, as agreed between the parties concerned or taxed under subsection (4), in respect of the fees or expenses the subject of that direction.”.
This section refers to cases where the next friend or committee of a minor or person of unsound mind was directed to incur legal expenses. The amendment has been proposed because the board does not wish to get involved in matters which are more appropriate to the Taxing Master of the High Court or a county registrar.
Since we were only circulated with some of these amendments last night, I have not had much of a chance to read through this amendment and get advice on it. Does it meet the intent of the amendment I tabled on having a taxing procedure?
Yes. This amendment is in lieu of the Deputy's one.
I will take the Tánaiste's word on that.
I move amendment No. 60:
In page 28, between lines 45 and 46, to insert the following subsections:
"(3) Rules under this section shall enable the Board (subject to rules under subsection (4)) to issue to a claimant a document (in this Act also referred to as an ’authorisation’), in circumstances where the claimant is not otherwise authorised under a provision of this Act to bring proceedings in respect of his or her relevant claim, in either or both of the following cases, namely-
(a) section 18(3) or (6) applies in respect of one or more of the respondents to the relevant claim and the claimant wishes to bring proceedings in respect of that claim against that respondent or those respondents (acting, unless he, she or they are no longer of unsound mind, by a guardian or a committee),
(b) the claimant wishes to bring proceedings in respect of his or her relevant claim against one or more persons whom he or she omitted, through a genuine oversight or ignorance of all of the facts relating to the matter, to specify in his or her application under section 11 as being a person or persons liable to him or her in respect of that claim.
(4) Rules under this section shall enable the Board to defer making a decision as to whether to issue an authorisation referred to in subsection (3) unless and until the relevant claim concerned has been the subject of an assessment or, as appropriate, a fresh assessment under this Act (which rules under this section may include a requirement for (but subject to those rules permitting the Board to waive that requirement where, due to lapse of time or other circumstances, compliance with that requirement would unduly interfere with the claimant’s right to bring proceedings)).
(5) An authorisation referred to in subsection (3) shall state that the claimant is authorised to, and operate to authorise the claimant to, bring proceedings in respect of his or her relevant claim against the person or persons concerned and such an authorisation shall be in addition to any authorisation issued under another provision of this Act to the claimant.”.
Amendment No. 62 is related to amendment No. 61; therefore, amendments Nos. 61 and 62 may be discussed together by agreement.
I move amendment No: 61:
In page 29, subsection (2)(a), line 5, after “section 11,” to insert “unless such fresh application is made within the overall time-limit provided for the bringing of a claim”.
Section 47(2), as drafted, seems to prohibit an individual from reassessing his or her claim after it has been withdrawn. This is inconsistent with an individual's right under the Statute of Limitations. An individual should be free to reintroduce a claim within the Statute of Limitations and the amendment ensures that.
I am happy to accept amendment No. 62.
I move amendment No. 62:
In page 29, between lines 6 and 7, to insert the following subsection:
"(3) Where a claimant indicates that he or she wishes to withdraw an application made by him or her, the Board shall formally notify the claimant by notice in writing of the desirability of obtaining legal advice before withdrawing an application and shall not accept the claim as withdrawn until after 14 days from the date on which such notice is served on the claimant.".
Retrospective application of this proceeding to existing proceedings is, I am advised, almost certainly unconstitutional.
The idea is that where both parties agree, the PIAB will take on the case. I will have the matter checked legally but I am strongly advised in that regard.
We will have a busy Report Stage.
Is the Tánaiste suggesting that where proceedings are before the courts that——
It would not have gone to court, but proceedings may have issued. The trial would not have begun.
The Tánaiste will come back on Report Stage to advise——
If the claimant and the respondent agree, I do not see the issue.
Is the section agreed?
No, the Tánaiste is coming back on Report Stage with advice.
If both parties agree, what is the difficulty?
I do not know but I have received legal advice in this regard. The Tánaiste should get legal advice from the Attorney General and reassure me as I am not a legal person.
Surely if two parties to a dispute agree to a route, we should not want to stop them.
Amendments Nos. 64 and 66 are related to amendment No. 63; therefore, amendments Nos. 63, 64 and 66 may be discussed together by agreement.
I move amendment No. 63:
In page 29, subsection (2), line 23, to delete "9" and substitute "3".
These amendments relate to the timeframes involved. The current provision of nine months plus an extension of six months is too long for a decision on claims. In amendment Nos. 63, I suggest nine months plus an extension of three months and in amendment No. 66, I suggest three months plus an extension of three months. I will not insist on those numbers but nine months plus an extension of six months is a long period.
This is the statutory duty we are placing on the board but the idea is that it would be done much more quickly. Medical evidence evolves in many of these cases and it would be unfair on some claimants if one was to make an assessment too quickly. The six and nine months provided for in the Bill, which is the statutory duty, is tight.
It is nine months and six months.
Yes. It is six months with the consent of the claimant.
The problem is that it is like the timeframe for An Bord Pleanála. Whatever one includes as the outer limit becomes the norm. I would be much happier if there was a tighter limit with an application for an extension.
The intention of the board is to deal with matters as quickly as possible. I have no doubt that will be the manner in which it sets about its business. One needs stable medical evidence before one can make an assessment.
Does one need nine months?
Sometimes it can take much longer. In those cases, it would end up going back to the courts. For example, if somebody is critically ill in the National Rehabilitation Hospital in Dún Laoghaire, it could be some time before one could get a stable medical report. I agree with the limits, given that the statutory requirements are tight.
I move amendment No. 65:
In page 29, subsection (2), to delete lines 24 to 29 and substitute the following:
"beginning on (without prejudice to subsection (3))”
(a) if there is only one respondent as respects the relevant claim concerned, the date on which it receives the respondent’s consent to an assessment being made under section 20 in relation to that claim,
(b) if there are 2 or more respondents as respects the relevant claim concerned-
(i) where only one of them consents to such an assessment being made in relation to that claim (irrespective of whether there is a failure of the kind mentioned in subsection (3) on the part of the other or others), the date on which it receives that consent,
(ii) where 2 or more of the respondents consent to such an assessment being made in relation to that claim (irrespective of whether there is a failure of the foregoing kind on the part of the other or others), the date it receives those consents or, if the dates on which it receives those consents are not the same, the earlier or earliest of the dates on which it receives one of those consents.
(3) If a failure of the kind referred to in section 14(1)(b) occurs on the part of the respondent or, if there are 2 or more respondents as respects the relevant claim concerned, on the part of each of them the period of 9 months referred to in subsection (2) begins on the expiry of the period specified in the notice served under section 13 on the respondent or, as the case may be, each of the respondents.”.
This is a technical amendment to the current version of section 49.
I move amendment No. 67:
In page 29, subsection (5), line 46, to delete "as soon as may be" and substitute "within one month".
I would like to hear the Tánaiste's response.
The time limits are reasonable and it might be unfair, as I said earlier, to claimants whose medical condition is evolving to make a determination earlier.
I move amendment No. 68:
In page 30, lines 11 and 12, to delete "32, 36 or 49” and substitute “32 or 36, rules under section 46(3) or section 49”.
I move amendment No. 69:
In page 30, subsection (1), line 29, after "as" to insert "Bord Measúnaithe Díobhálacha Pearsanta or in the English language".
I tabled this amendment so the Chairman could say An Measúnaithe Díobhálacha Pearsanta.
The Deputy has said it and we all agree with his pronunciation.
There is a convention that we insert the Irish form of statutory bodies in Bills and I propose we do so in respect of this body.
The board will have to comply with the Official Languages Act which will come into effect shortly. However, the board is commonly known as the Personal Injuries Assessment Board and it is desirable that we leave it at that.
There is a requirement - I do not mean to be facetious about this - that the names of statutory bodies be included in Irish as well. It is the first language and we have regard for it. There is a new Bille na Gaeilge which allows citizens to do business with any State agency through Gaeilge. It would be appropriate for the Tánaiste to accept the amendment.
The board will have to ensure it can deal with citizens through the Irish language. I will look at the amendment before Report Stage.
I move amendment No. 70:
In page 31, subsection (1), line 16, to delete "a cost-benefit analysis" and substitute "an independent cost-benefit analysis by the Comptroller and Auditor General".
This amendment seeks to ensure the cost benefit analysis procedure will be objective and independent.
A cost benefit analysis will be independently carried out and I have given that commitment. I do not believe we need to include it in the legislation.
Amendments No. 71 and 74 are related and both may be discussed together by agreement.
I move amendment No. 71:
In page 31, subsection (1), line 43, to delete "and the chief executive".
I have tabled this amendment to a number of Bills. The Minister of State dealing with the companies Bill saw merit in it and said he would be disposed to accepting it on Report Stage. The general view is that it is contrary to best corporate governance for a chief executive officer to be a member of the board. The chief executive officer can attend and speak, but he or she should not be a voting member of the board in order to separate the directorate from the executive.
There are mixed views on this. The practice is that there are no executive chairpersons, but separate people who act as chairpersons of organisations. I believe from a corporate governance point of view it is good to have the chief executive officer present on the same basis as everyone else. This leads to best practice. However, different people have different views. It is standard practice in many State organisations and it works well.
There is another view that it should be separated out because what happens is that the chief executive officer acts as the board, rather than the employee of the board, in the interim when the board is not meeting. It is a very important issue and I ask the Tánaiste to reflect on it between now and Report Stage.
I have reflected on this, as I have done with much other legislation. In my experience it works well to have the chief executive officer present on the same basis. It leads to better corporate governance.
Amendments Nos. 72 and 73 are related and both may be discussed together by agreement.
I move amendment No. 72:
In page 32, subsection (5), between lines 9 and 10, to insert the following:
"(a) one shall be appointed jointly by the Law Society of Ireland and the Bar Council,”.
In terms of board members, one should be appointed jointly by the Law Society and the Bar Council. Knowledge of the law is an essential requirement for members of the board and in view of this, it is striking that representatives of the Law Society and the Bar Council have been omitted. While they both applied for individual representation, it is fair that there should be one nominee and that he or she make the determination.
This is not a representative board. There are two lawyers on the interim board and after the Bill is passed I will establish a statutory board. There is also a member of the Law Society, an employee of the Revenue Commissioners and a member of the Bar Council, Dr. Denis Cusack. It is preferable that there is no one in a representative capacity from the legal profession. The board will have its own legal expertise. Members of the Oireachtas suggested that we should include a representative of an Oireachtas committee. I reflected on this but we may stand accused of politicising the organisation. I do not accept the amendment.
I move amendment No. 75:
In page 36, lines 51 and 52 and in page 37, lines 1 and 2 to delete subsection (2).
This is an amendment I have tabled in other legislation. It seeks to delete the gagging of the chief executive officer in relation to giving evidence on Government policy. Under the Bill, the chief executive officer would not be able to come before the Oireachtas committee and make comment on Government policy, which appears contrary to the whole tone of freedom of information and open debate that I thought the Tánaiste supported. I would make a longer argument but time is against me.
I accept the amendment.
Amendments Nos. 76 and 78 are related and both may be discussed together by agreement.
I move amendment No. 76:
In page 43, subsection (4), line 19, to delete "section 77” and substitute “sections 77 and 83”.
This amendment is required if the amendment to include a new provision relating to annual reports is accepted.
I move amendment No. 77:
In page 45, lines 1 to 3, to delete subsection (6).
This amendment seeks to remove the requirement that the board would be obliged to include in its annual report a list of all the consultants and advisors it engages during the year. In view of the potential volume of mainly independent medical referees, it would not be practical——
Is the amendment agreed to?
No. I ask the Tánaiste to withdraw the amendment until Report Stage when we have time to debate it.
I move amendment No. 78:
In page 45, after line 16, to insert the following new section:
83.-(1) The Board shall submit to the Minister, in such form as the Minister may direct, an annual report of its activities after the end of the financial year to which it relates and the Minister shall cause copies of the report to be laid before each House of the Oireachtas as soon as practicable after the receipt by him or her of it.
(2) A report under this section shall not include information to which paragraph (c) or (d) of section 73(4) applies.”.
I move amendment No. 79:
In page 45, after line 16, to insert the following new section:
84.-The definition of 'specified body' in section 223(1) of the Social Welfare (Consolidation) Act 1993 (as amended by the Social Welfare (Miscellaneous Provisions) Act 2003) is amended-
(a) in paragraph (t), by deleting ’or’, and
(b) by substituting the following paragraphs for paragraph (u):
'(u) the Personal Injuries Assessment Board, or
(v) such other persons as may be prescribed;’.”.
The purpose of this amendment is to insert a new section to amend social welfare legislation to allow for the PIAB to be listed as a specified body to use the personal public services number. The PIAB will require claimants to quote their PPS number on their application forms. The PIAB will then validate and verify the number with the Department of Social and Family Affairs. The PIAB will request from the Department details regarding the amount of social welfare benefits paid while the claimant was off work as a result of an alleged accident and the duration of these payments. The PIAB will not engage in any other type of data-sharing with the Department and the PPS number will not be used for any other purpose. The Department has the approval of the Data Protection Commissioner for this approach.
I move amendment No. 80:
In page 45, after line 16, to insert the following new section:
85.-Schedule 13 to the Taxes Consolidation Act 1997 is amended by inserting the following paragraph after paragraph 139:
'140.-The Personal Injuries Assessment Board.'.".
The purpose of this amendment is to allow the PIAB be an accountable person for the purpose of deducting professional services and holding taxes from service providers.
I move amendment No. 81:
In page 45, after line 16, to insert the following new section:
86.-(1) This section has effect in relation to any database (a 'central database') maintained for the time being by any group of persons in which particulars are entered with respect to accidents or incidents proceedings in respect of which-
(a) may be brought,
(b) may subject to this Act, be brought, or
(c) are brought,
for the purpose of claiming damages for personal injuries, but only if the database is, for the time being, maintained in accordance with the Data Protection Act 1988.
(2) There may be supplied to the Board, for the purpose of its dealing with an application made to it under section 11, any relevant particulars entered in a central database.
(3) The Board may supply the following, and no other particulars, for the purpose of their being entered in a central database and, by means of that database, being disclosed to other persons who have access to that database, namely-
(a) the name and address of a claimant who has made an application under section 11,
(b) the date on which the accident or incident, the subject of that application, is alleged in that application to have occurred,
(c) the name and address of the person or each of the persons who the claimant alleges in the application is or are liable to him or her in respect of the relevant claim concerned, and
(d) the name of the insurance company or undertaking, if any, which has entered into a policy of insurance with the person or any of the persons referred to in paragraph c) and which policy provides an indemnity in respect of the claimant’s proposed proceedings.
(4) This section is without prejudice to the generality of the provisions of Chapter 4 of Part 2.”.
The purpose of this amendment is to allow the PIAB input certain details in regard to claims into the central claims database. The system is registered with the Data Protection Commissioner and has been in operation since 1991, recording accident dates and names of injury claimants against insurers and self-insured alike.