Willie O'Dea
Question:8. Deputy Willie O'Dea asked the Tánaiste and Minister for Enterprise, Trade and Employment his plans for reform of the Personal Injuries Assessment Board; and if he will make a statement on the matter. [18639/22]
View answerThursday, 7 April 2022
Questions (8)
Oral answers (7 contributions)
This question is to ask the Minister his plans for reform of PIAB, and if he will update the House on progress to date.
The programme for Government contains a commitment to enhance and reform the role of PIAB. This commitment is being given effect under action 19 of the Government's action plan for insurance reform. In 2022, I intend to enhance and strengthen the agency to facilitate an increase in the number of personal injury claims PIAB resolves. On 9 February, I published the general scheme of the personal injuries resolution board Bill 2022.
The policy objective of this general scheme is to facilitate an increase in the number of personal injury claims that may be resolved through the board's process and without recourse to litigation. The scheme amends the Personal Injuries Assessment Board Act 2003 in several ways: PIAB will be given a new function to offer mediation as a means of resolving a claim; it will retain claims of a wholly psychological nature, which is a new departure; it will promote public awareness and conduct public information campaigns; and it will have additional time to assess claims where an injury has yet to settle rather than releasing it to litigation. Pre-legislative scrutiny of the general scheme by the joint committee commenced on 30 March 2022. I am determined to progress this legislation to enactment in 2022 and I am confident these reforms will increase the number of personal injury claims resolved through the PIAB process.
Regarding mediation, because there have been queries regarding its benefits, mediation provides an opportunity for both parties to consider if an agreement can be reached on issues that can cause claims to proceed to litigation. Mediation is recognised as an effective dispute resolution method and is already used as a preliminary option in many different settings, including in the context of the Residential Tenancies Board, RTB, the Financial Services and Pensions Ombudsman, FSPO, and the Workplace Relations Commission, WRC. Mediation provides an opportunity for the parties to agree a mutually satisfactory resolution to personal injuries claims and avoids the potential of prolonged and expensive litigation.
The Minister of State's reply contained some interesting ideas. I have also been reading some of his reports and statements on this issue of late. He is going in the right direction. This move towards alternative dispute resolution is very welcome. It makes perfect sense. I am surprised to see that some commentators have frowned on mediation for some reason. Mediation is always very sensible and usually reduces court costs dramatically by avoiding matters going to trial and full hearings, which is a far more expensive approach. Equally, mediation can also help parties to see the other side's view outside an adversarial conflict situation, as would happen, for example, in a courtroom setting. Therefore, mediation is to be commended and welcomed.
The Minister of State also previously indicated he was looking at the possibility of PIAB being a quasi-judicial body, in the same way as the WRC, the RTB and other such bodies operate. I understand that perhaps the Minister of State received some advice that this was not possible. I ask him to re-examine this issue. There is a great opportunity here. Perhaps the Supreme Court's recent decision regarding the Zalewski v. WRC case might be of assistance in this regard. This was where the Supreme Court found that the WRC was grounded in statute and was a perfectly legitimate forum for claims. These kinds of quasi-judicial bodies can operate very well and successfully and relieve the strain on the courts while reducing costs for all. Therefore, I ask the Minister of State to keep on track with this approach because it is an interesting idea.
While there was some support for this type of approach in reforming PIAB, strong arguments against it come from the Attorney General. This is because such an approach might impinge on the constitutional right of access to justice delivered by the courts, as well as the primacy of the courts regarding the administration of justice, particularly in respect of a body of common law. Personal injury claims may be resolved by direct settlement between the parties, a PIAB assessment or litigation. Court decisions ultimately determine matters such as liability and overall damage levels. The new and reformed PIAB model preserves the constitutional right of access to the courts. There are constitutional guarantees that a citizen has a right of access to the courts and a right to litigate.
The decision of the Supreme Court in the Zalewski v. WRC case provides important context for any consideration of a possible quasi-judicial role for PIAB. While the Supreme Court found the WRC to be administering justice, it also found that this was permissible under Article 37 of the Constitution, given the limits of the subject matter applicable to cases coming before the WRC. A similar argument may not be successful regarding PIAB, given that personal injury claims involve broader legal considerations that have been determined by the courts over time, rather than the statutory employment law issues which come before the WRC.
I did suspect the Zalewski decision might be helpful. I noticed that the Minister of State said it may give rise to a challenge. Everything may give rise to a challenge, because that is the law. I again encourage the Minister of State to pursue this approach and to consider it. There is of course a constitutional right to appeal. A constitutional right of access to the courts is imperative and that is what an appeal body is for. Decisions of the WRC can be appealed to the Labour Court and those of the RTB can be appealed to the High Court on a point of law. I think the Minister of State's own plans in this regard also included provision for an appeal on a point of law. Therefore, I do not see a constitutional right of access to the courts being denied in any way in this regard. I reiterate my comments in this regard. It is certainly worth exploring this kind of approach.
On the flip side of this argument, I will add a note of caution and I spoke about this here before. Not every applicant to PIAB and not every plaintiff in a personal injury matter is a chancer or someone out to try their luck or to try to score some money from a defendant. Most of these claims are grounded upon legislation governing employment, workers' rights, health and safety and the environment. We do not want to return to the dark ages of the industrial revolution when children were working in factories until they died prematurely because the conditions were so abhorrent. Most of these claims are grounded on laws we have passed in this House and in the European Parliament. This has been progressive legislation. Therefore, I appeal to the Minister of State not to throw the baby out with the bathwater.
I congratulate the Minister of State on the progress made on this proposed legislation. PIAB fixes cases in half the time and at one twentieth of the legal cost. Therefore, it is a worthwhile venture. A worrying trend, however, has seen the number of PIAB cases accepted fall from over 50% to 37%. This suggests people are testing the courts and their willingness to implement the quantums of damages. Can the Minister of State give us any reassurance that the courts are sticking to the quantums of damages and that we will not see this decline in the use of PIAB continue?
PIAB is actively engaged in that process and it wants to ensure that it wins its court cases and that the courts are sticking to the judicial guidelines. We will have to wait to see how this aspect turns out. Hopefully, however, it will remain the case.
Regarding Deputy Lawless's comments, I thank him for his support regarding mediation. Broadly speaking, there has been general support during pre-legislative scrutiny and even during public consultation. I share his view of PIAB as a quasi-judicial body. This has been the reason why it has taken 18 months to get to this stage. We were going backwards and forwards on this issue, and I was continually arguing with the Attorney General to try to get him to go to the next level. It was felt, however, that rather than stall the progress we are making, that we would start with this proposal and it will not prevent us from working further to enhance PIAB even more later. We want to get this legislation enacted this year because we believe it will contribute to bringing down the cost of insurance. Equally, however, I still believe there is an opportunity to go further later.