Before I moved to report progress last evening I was dealing with what appear to be some defects in the existing code of workmen's compensation. I was dealing in particular with the position that faces a workman who, without any court award, was in receipt of weekly compensation in respect of injury that he met with arising out of and in the course of his employment. I said that it often happens that the employer and the insurance company, where the employer is insured, often pick what appears to them an opportune time to cut off that compensation. The workman then has recourse to the courts and if his compensation has been cut off shortly before the beginning of the long vacation, he is in a particularly vulnerable position from the point of view of having his claim settled by a tempting offer, often inadequate, from the insurance company.
I said last night that I thought that was a matter that the Minister possibly could not remedy, but, on giving it second thoughts, I feel, perhaps, there might be some method whereby such a man could have his claim brought before a court, say some kind of floating Circuit Court, during the long vacation. Otherwise, if his compensation is cut off, say early in July, that will not give him time to have his claim heard before the end of that particular term. The courts normally do not resume until well into October, therefore, giving him a very long period in which he has no weekly compensation to remunerate him for his loss of earning capacity. In urgent cases in different types of litigation, people who have to seek redress from the courts are given that facility and I think it might, in some manner, be extended to workmen whose compensation has been stopped at such an inopportune time.
There is one other aspect of that problem which again is a defect in the present system as it has evolved from legal decisions; that is, if the workman's compensation is cut off he usually goes to court for the purpose of having it restored or else of having whatever proper compensation the court considers fit awarded to him. Under the present legal position, if the court finds that the man is no longer totally incapacitated, the court then has to look to what earning capacity the workman has in his partially incapacitated state. But unless the court has actual evidence of what the earning capacity of the man is, it must adjourn the award of his partial compensation to see what work the man can actually do.
It usually happens, I think, that if a man is cut off from full compensation he has not in the meantime tried to work in his partially incapacitated state, and even though the court decides on the hearing of his case that he is no longer totally incapacitated and that he is partially incapacitated, it cannot give him a partial award until such evidence is forthcoming. That evidence cannot be got together by the workman until another period has elapsed, when he has tried his hand at other jobs. After he has succeeded in getting a job and earning some reduced wages, only then can the court assess his partial compensation.
There is, of course, a prejudice always against such a man and having been injured with a particular employer, a prospective employer is not anxious to take him on. Fortunately there is a section providing against any hardship in that respect, that is, Section 24, whereby the court, if by reason of his continuing disability, even though he has recovered somewhat, but still fails to find employment, can treat his partial incapacity as total and award him full compensation.
Last night I mentioned, too, that I was doubtful whether an appeal would lie to a superior court in the event of either the employer or the workman being aggrieved in respect of an award given under Section 8. Generally it is only on legal questions that appeals can be taken against workmen's compensation decisions in the Circuit Court. Possibly in the case where an award by a circuit judge is considered inadequate or excessive, the Supreme Court, which is the appellate tribunal in this case, would probably exercise its judicial discretion in setting that particular award right, but I would ask the Minister to ensure that there is some appellate jurisdiction in respect of that section.
Another aspect of the present code which urgently requires remedying is the award of medical fees. Under Section 73 of the 1934 Act that sum was fixed at a maximum of £5 to the doctor who treated that workman for his injury. I accept entirely that the principle of workmen's compensation is not compensation for pain or suffering or for any consequential loss, but compensation for loss of earning capacity. Nevertheless, nobody can tell me or convince me that a man who is seriously injured can adequately repay his medical adviser, his surgeon as the case may be, by a court awarding this paltry £5 under Section 73. It must happen that the workman's commitments are very much higher than that particular fee. Therefore, apart altogether from the rights of the medical profession to get their just fees, I think it is only fair to the workman that he should at least have the comfort and satisfaction of knowing that his medical adviser, his doctor or surgeon, is properly compensated and properly paid for whatever treatment is given.
I do not think anyone will accept that the £5 which at present is the maximum—and that is only given on application to the court by the doctor at the end of the year—is adequate. There are cases and cases will continually arise where not only ordinary medical treatment but a surgical operation is necessary. The insurance company or the employer are, under the present legislation, in no way bound to provide that treatment.
In practice it does not appear that in reference to their own liability the employer or the insurance company will undertake to pay whatever fees are due for such specialist treatment so long as there is no obligation on them to do that—so long as they are not bound by existing legislation to do so. It often happens that the workman, in relief of his own conscience, will make some attempt to pay out of his weekly or lump sum compensation something over and above that £5 to which the doctor may be entitled.
One other matter to which Deputy Kyne referred, and rightly referred, is the question of whether or not workmen's compensation insurance should be compulsory. I do not think there is any doubt that it should. The man who owns and drives a car continuously on the roads is obliged, under pain of fine or imprisonment, to insure that car. He is presumed to have an instrument of death under his control. Many employers, even employers in a small way, who own or occupy factories have instruments of death so long as they have inexperienced, and sometimes experienced, workers occupied around their machines. It would be false economy and, in some cases, actual exploitation of the workman, for employers to fail to insure employees. We all have knowledge of cases of severe hardship where people were severely injured, often maimed for life, and got no benefit because they were uninsured. In some such cases an employer might pay the workman a small sum, but in many cases a small employer is no mark because he has no money and he emigrates rather than submit to the execution of a court decree.
If anything requires to be compulsory in this country I think it is insurance of workers against injury, particularly in factories and on farms. With reference to the amendment put down by Deputy Dr. Ryan, I should like to say that even though we are discussing it now in the middle of 1955, the Bill is titled the Workmen's Compensation (Amendment) Bill, 1954. The Minister has said that one of his first acts on assuming office was to examine what was necessary for the relief of injured workmen and this Bill was produced as a result. The last Government did set up a committee to examine the whole problem of workmen's compensation and the Minister, even though he did not agree with the personnel of that committee, should have tackled the matter seriously at the beginning and there is no doubt that in the 12 months that have intervened that committee would have reported adequately and would have enabled the Minister to bring in a comprehensive measure. Even when the Bill had its First Reading he should have adjourned the Second Reading for three months, set up a committee, and have had their report for the Second Reading.
As I said at the outset, that is my main objection to this measure. We all agree that increases in compensation are necessary but, on the other hand, one must also consider the effect it will have elsewhere. Some suggested effects, made from this side of the House, were scorned by Government Deputies but there is no doubt that the increased weekly maximum compensation payments will put a big new onus on employers. There must be an increase in insurance rates and, therefore, it could happen that a man now able to employ four people will have to reduce that number to three in order to meet the increased insurance commitments. It is very likely that this increase will have such an effect, and much as we appreciate what the Minister has done for the employees, we have a corresponding obligation to insure against the imposition of additional hardship on employers.
On the question of the constitution of the suggested committee, I said last night that I thought it should be a mixed body of Oireachtas members and of outside interests. I would suggest that if possible the committee would be presided over by a Circuit Court judge because the Circuit Courts have most to do with awards under the existing legislation. I think the Minister would find very little difficulty in finding a chairman among the Circuit Court judges who would do justice to the work of this committee. I would also suggest that some of the lawyer members of the House should be put on the committee. I should like also that the industrial employers, the trade unions and the farmers represented in the House would have representatives on the committee. Outside interests, I suggest, should similarly find a place on this committee. I have little doubt that when this body would make its report the cleaning up and the tightening of the workmen's compensation code would at last have been achieved. I would appeal to the Minister that, having got this Bill on the Statute Book, he will not rest there but proceed with the greatest possible expedition to set up this committee and remedy the defects in the code, some of which I have referred to and the many more equally important flaws.
