Léim ar aghaidh chuig an bpríomhábhar

Dáil Éireann díospóireacht -
Wednesday, 18 Jun 1986

Vol. 368 No. 2

Estimates, 1986. - Courts Bill, 1986: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Before moving the adjournment of the debate I was dealing with some of the arguments for and against the abolition of the jury system with particular reference to the level of high premiums that have to be paid by Irish business policy holders. I pointed out that they have reached the stage where they are unwilling, and unable, to pay the premiums being demanded of them. I made reference to the effect those high premiums are having on business generally and the dangers that will ensue if this policy is continued. Many business people will not be able to meet the high cost of insurance and there will be serious job losses. I was critical of the Government's attitude to the abolition of juries and their proposals in the Bill before the House concerning malicious injuries claims. I have no doubt that the provisions of that Bill will involve policyholders in increased premiums to recoup the £20 million per year which the Government must pass on to the insurance industry to be claimed back in premium increases. I gave statistics that make it imperative that some initiative is taken now by the Government to reduce the level of crime and vandalism in Dublin city and restore some semblance of law and order to our streets.

I repeat that in high crime areas businesses have suffered substantial losses and businessmen feel undefended and unprotected by the law enforcement agencies and the underwriters. The Government have failed to provide the law enforcement with sufficient capital and manpower to do the job they were established for. Businesses cannot afford the increases in insurance costs as further overheads, and risks are being taken by businessmen taking out inadequate insurance. That must be of serious concern to the whole business community. Many papers have been written and agencies have been bringing to public notice that under-insurance is the order of the day and is leading to business closures and consequently to job losses with general debilitation in the business community.

Business people are also looking with concern at the Malicious Injuries Bill and insurers will be bound to expand the no-go areas for insurance while those who manage to get cover after that Bill is passed will be saddled with increased costs. It is an extraordinary situation, showing that the Government, in confusion, are producing ad hoc measures and are walking away from their responsibilities in these matters. The sooner they are put out of their misery the better.

While referring generally to the legal system, we are all aware that the District Court has jurisdiction to award compensation of up to £2,500 and the Circuit Court can award damages of up to £15,000. Both courts can do it with a judge or justice sitting alone. Therefore, we have a misunderstanding in regard to the civil jury system. It was thought to be a universal right in injury claims and all civil liability cases. It is normal only in the High Court, where juries decide on liability and the amount of damages. If a judge sitting alone can do it in claims of up to £15,000 in the Circuit Court, why is it not regarded as proper that if a claim was for £15,001 a judge could decide without requiring a jury? As I have said, it has worked quite well in the lower courts.

Can it be stated that a decision of a judge sitting alone has always been inferior to a collective decision by a jury? I should like to get the Minister's response to that question. It has been stated by barristers that collective decisions by juries have not always been superior to those of judges. Why then is it mandatory to have juries officiating in all civil cases at all levels? That is an argument the Minister has not addressed himself adequately to.

Dissatisfaction has not been expressed that there has been inferior justice in the lower courts. The Committee on Court Practice and Procedure, which sat as long ago as 1965, recommended the abolition of juries in all civil cases. It took 20 years for us to get as far as that single item. My objection to this legislation is that the Minister is doing only part of the job here. He is dealing with civil juries but he is not prepared to bring in the other reforms suggested in the MacLiam report and the reports of the Committee on Court Practices and Procedures and recommendations in many papers published since. The Minister has not found it necessary to deal with our entire legal system, including the high costs of litigation and the causes for the high cost of insurance related to the number and the size of claims.

There was also a report from the Oireachtas Joint Committee on Small Businesses which dealt with insurance for small industries. The Minister chose to ignore all those important matters and to go ahead with this single item.

Judges sitting alone can decide certain cases right up to the Supreme Court. It is only reasonable to suggest that they would be enabled to do likewise in ordinary personal injury cases. If there was a suggestion of a noticeable divergence of opinion as between different judges, the Minister could have introduced in this legislation a quantum book on damages so that technical guidelines would be laid down for judges. This has operated in other jurisdictions and they have achieved a better balance in regard to damage awards. Such a system here would do away with possible unpredictability of individual judges and people would not be waiting to see which judge they would draw before reaching settlements.

The Minister spoke about inconsistency in awards by juries but he said nothing about inconsistency in decisions as between judges sitting alone. If there was a standard book of guidelines on damages there would not be inconsistency in regard to personal injury claim awards. All that is necessary is a good standard reference book. Provision for that is omitted from this Bill. That would have allayed fears expressed by many in regard to individual judges, and that has been clearly expressed by barrister associations. Barristers are well versed in law and know the tendencies of particular judges. If they are prepared to put that in writing we must take it in good faith. The Minister has not taken the necessary steps to help in the matter. This is faulty, incomplete legislation. As I said before, it is piecemeal legislation, not fully thought through and will not be of any great consequence in getting a final solution to the high cost of insurance and claims.

Awards must be assessed by professional methods. This is a complex area involving many factors and it lent itself to the professional advice that might have been made available had the Minister opted for an advice system to help the judges. I take it the legislation will be passed and that the Government will not fall because of it. That being the case, surely the Minister might try to improve the Bill even at this stage.

The system of processing civil liability claims should be streamlined. That was recommended to the Minister but it is not incorporated in the legislation and neither is the streamlining and improvement of the whole legal process leading to the finalisation of claims. These are integral parts of the system but to pluck out one item and to make a very limited case is not adequate. The Minister did not make his case well and that is regrettable. If there was a case to be made and if it had been made sufficiently well, we would have had to answer it but that did not happen.

It is quite possible to settle many more cases out of court and obviously that is the intention. If the process could be streamlined, if we had more consistency and predictability with regard to awards, then people would take the option of settling. They would not do so on the steps of the courthouse because by that time all the legal costs have been incurred and they become part of the final settlement. To reduce the size of claims and their cost, they must be settled well in advance of that stage. If the Minister had taken the necessary steps to improve the legal processes we could have ended up with agreement rather than half agreement, as is the case here. In nearly all of these cases juries are dealing with insurance companies. It would be reasonable to expect they would have a certain sympathy and compassion over and above that expected of an individual judge but that is not guaranteed. I have sufficient faith in the judicial system to expect that if a judge had a quantum book on damages and the necessary technical, professional expert advice he would be kept within normal guidelines.

There was no reference to the delays that are an additional factor in actions so far as personal injuries are concerned. It is not reasonable to have delays of two or three years. Such delays are a major factor in the overall cost of litigation. The Minister referred to the legal representation on cases. People in this House and outside it have referred on many occasions to the number of lawyers involved in these cases. There seems to be a universal acceptance that the four-lawyer system is antiquated and is superfluous to the requirements of the system. There may have been need for it in the past for some reason, but today a more equitable system would be to have a two-lawyer system. That could have been addressed by the Minister at this time but he only gave a vague promise that he would look into the matter in a critical way. By that I understand the system will be changed because I presume one does not make a critical analysis of some matter unless one intends to change it. The Minister's reaction to this problem has not been adequate.

There is also the matter of expensive specialist witnesses. Having doctors, consultants, engineers, architects and other expert witnesses standing by for long periods must add substantially to the overall cost of awards in the High Court. All these people stand by in advance of the case being called and even though the case may be settled on the steps of the courthouse the witnesses have to be paid. That process could be streamlined. I accept it may be necessary to have cross-examination of expert witnesses on occasion but I am satisfied much of that could be done by documentation. That is particularly so if there is not a long drawnout court battle, with individuals trying to convince other individuals that their point of view is the only one that matters. All these matters should be dealt with in a professional way by way of points of law.

The Minister could have gone much further in dealing with this problem. The fairest way to put the matter is that justice delayed is always justice denied. A long delay of several years not only can have a material effect on the people involved but it can lead to considerable injustice for people on both sides. It is not just the plaintiff having a bad time because of the delay: the insurers suffer. They must keep their money on reserve. They have to estimate what is needed in their reserve ratio in order to cater for their liability and that puts a strain on their investment income, on the premium reserve and on their solvency. All of this leads to increased costs for the policy holders and that is what this is all about. The Minister made no bones about that in his contribution. This is an effort to bring the cost and level of claims into some kind of order. Legal costs account for 20 per cent of liability claims payments. Adding 20 per cent to the cost inevitably must mean substantial premium increases that have to be borne by the policy holders, those who are lucky enough to have reasonable cover. Unfortunately, fewer and fewer people are able to get the cover they require at a reasonable cost. It has had a significant effect on business, job creation and job prospects.

As far as I am concerned, it is not suitable in a democracy to have no-go areas in a city, to have no insurance areas in a city, to have certain classes of business which cannot get a reasonable insurance cover. I believe that in the long term that must have a debilitating effect on the insurers, the underwriters and business generally, and will lead to greater demands to have the freedom of services directive introduced here at the earliest possible date. I am on record as seeking a derogation in that matter for at least five years to allow the Irish insurance industry to cope, to get technological advances geared to the average one expects in these matters in the European sense.

I know from public statements made by leaders in the insurance world that if that freedom of services directive in its present form comes in, it will place considerable strain on companies who, by the nature of their returns in the Blue Book, find it difficult to meet their solvency margins. They are all solvent at this time but they say the only reason they are maintaining their solvency is that they get increased premium rates together with their investment income. That investment income has been reduced. The rate of inflation and interest rates are down and, consequently, their investment income return is also down. That means they have to reserve more of their premium income to maintain the balance for their liability expectations. This is putting existing insurers under pressure. If some of that premium income is hived off to foreign companies, one can only imagine the effect that would have not just on the insurers, but also on the Government agencies which borrow substantially from that invested premium money.

In all those circumstances, I regret that the Government could not put a right package together, that they could not have addressed themselves to the four items mentioned in the Oireachtas joint committee's report on the insurance business. The Government, the insurance underwriters and the Community should work in tandem and a proper package should be produced so that we would see an effective means of dealing with the escalating costs of insurance for all sectors in the general insurance area. We expected them to deal effectively with the volume of claims, the level of compensation, the legal system, risk management and the level of crime and vandalism. These items have been identified, written about and reported on for the past 20 years, but now all we get is this one piece of legislation which is not even complete in itself. The Minister would do well to reconsider his position and perhaps improve the Bill considerably on Committee Stage.

Deputy De Rossa rose.

Dublin North-West): The list before me says that Deputy Mervyn Taylor is the next speaker. Since Deputy Taylor is not here, the next speaker on the list is Deputy Mary Harney.

I do not mind Deputy De Rossa going next.

Acting Chairman

I have to go by the list.

Thank you, a Chathaoirleach, and thank you Deputy Harney. I oppose this Bill. I consider it a Bill which has been brought in at the behest of a very powerful, wealthy elite in Irish society. The Confederation of Irish Industry, the banking corporations and the insurance corporations have mounted a very effective and very successful campaign against juries in certain actions for compensation. The power which this wealthy elite in our society have never ceases to amaze me. They have the power to change budgets after they have been presented in the House. They have the power to pressurise the Government into rescuing disastrous financial investments such as ICI for Allied Irish Banks. They have the power to get the State to rescue the PMPA, a private, family owned insurance company set up by private individuals for their own personal gain. They seem to be an all powerful elite in our society and they apparently have the power to twist this Government — and perhaps they had the power in the past to twist Governments — in the direction they want us to move.

This time they are interfering with the right of ordinary citizens to have their claims for compensation in certain respects considered by a jury. So far in the debate on this subject inside and outside this House, I have not heard a convincing argument that we should do away with juries in these cases. There has been no call from the general public to do away with juries in these cases. The only demand has come from this powerful wealthy elite.

Problems arise in having to present a case to a jury, but these problems have more to do with the way the legal profession operate and the fact that our court procedures are so outdated and sluggish. A very good case can be made for modernising our court procedures and reducing the number of legal people who act for the plaintiffs and the defendants.

The main argument put forward in favour of change has been that juries are inconsistent and in particular, that they give over generous awards to persons who suffered injuries or to relatives of persons who have been killed. The insurance companies have suggested that this has led to extraordinarily high insurance premia in this country, especially for motor insurance, but this has not been proved. They tried to draw an analogy between the situation here and that in the United Kingdom as regards insurance premia and awards to people who suffered injuries in that country.

I have a submission from the Federation of Insurers in Ireland, Hawkins House, Hawkins Street, Dublin. They present no evidence to back up the assertions they make in their submission. As far as I am concerned, they try to mislead me as a Deputy in the way they present their case, a case which I say is a very arrogant one. The heading of their submission is "Car Insurance, You're Right, It is too Dear" and they argue against juries in compensation cases. But at no point has the Minister in bringing in this Bill argued that doing away with juries will make car insurance cheaper. He has not even claimed that it will peg car insurance where it is at present. In the last paragraph, page 7, of the submission from the federation they do not even claim that, despite the fact that they say car insurance is too dear. They say the insurance industry believe that the jury system must be abandoned entirely in High Court actions for personal injuries and that, without its total abolition, claims costs will continue to escalate and motor insurance premia continue to rise. They do not claim they will be nice to their customers, because that is what we are, and gives us our cut in our insurance premia, our public liability premia, or any other insurance we may be seeking from them.

A particularly arrogant submission on page 2, paragraph 5, is:

The jury system requires 12 people with little or no knowledge or experience of such matters not only to make decisions on legal liability but also to assess damages.

Who do they think they are? Do they imagine that professionals only have experience of life? Generally speaking, members of juries are ordinary people, representing a cross-section of society, comprised of professional and non-professional people, trade unionists and nontrade unionists, manual workers and nonmanual workers. Why do they claim that these people have not the capacity or ability to make a reasoned and fair judgement in relation to injuries that a person is claiming for? It is a totally arrogant approach to ordinary men and women. They go on to say at paragraph 6:

The unreliability and unpredictability of jury awards as well as being unfair to defendants can also create injustices for the injured parties. Two people with identical injuries would be most unlikely to obtain similar damages from two different juries and would in all probability be awarded significantly different sums by way of compensation. Such a system is manifestly unfair to both plaintiffs and defendants.

Again, why do they make that argument? They must be aware, as ordinary, well intentioned, common, decent, intelligent people are, that even though you may have the same injuries your circumstances may not be the same at home. The effect of the injury may not be the same. Because an insurance company consider that X award is too high for a person who lost a hand, a leg or an eye or had serious injuries, why do they assume that ordinary people who have experience of life are not capable of judging what a person may have to live on for virtually the rest of his or her life?

On page 3 at the end of paragraph 7 they say:

...to give verbal evidence and be subjected to cross-examination, all for the benefit of the jury. Much of this could be dispensed with and replaced by documentary evidence such as medical reports if there were so jury. Lengthy opening and closing addresses by the opposing lawyers are designed mainly to influence the jury.

These poor, simple, uneducated people have to be influenced by these professional gurus.

Necessary reforms to streamline procedures are hindered or rendered impossible by the continuation of the jury system.

Is the judge not just as likely to be influenced by the opening or closing remarks of an advocate or lawyer?

It would depend on the judge.

Precisely, just as it depends on the jury who are much more likely to get a balanced outcome from having 12 people listening to what has been said and considering it and tossing it around and discussing it among themselves than a single judge would listening to and being influenced by lawyers opening or closing a case for either side.

This submission was drawn in that vein, which I regard as arrogant and insulting to the intelligence of the Members of this House and to the ordinary people who are called to serve on juries in the normal course of the legal process. In any event, it is estimated that in only 4 per cent of all claims against insurance companies in the motor car area are legal proceedings commenced and only one in 500 goes to court. Therefore, only a very small number of claims go before court and many of these are settled out of court when the jury have no say in the matter in any event. It is argued, of course, that awards made by juries have the knockon effect that cases settled outside court are influenced by the awards made in court, but surely if any person or any lawyer representing a person who is seeking compensation felt that they were going to get more money in court or that juries are so exceedingly generous, we would have all such cases coming before the courts. Why should the plaintiff settle outside of court if he or she can go before a jury and get two, three or four times what the insurance companies claim they should get? Why can they not go before these juries and get this huge amount of money from them?

It can be argued that a case in the High Court without a jury might be slightly quicker and cheaper but, as I have said, savings could be made in other ways. Surely when we are talking about compensation we are not talking about justice on the cheap or the legal process on the cheap. We are talking about trying to arrive at fair compensation for the injured person. Surely if the matter could be settled out of court it would be settled out of court. The vast majority of ordinary people going to court detest having to go to court and stand before a jury or get into a box to explain their case. That is a harrowing experience for the vast majority of people. Therefore a case can be made that the cost of proceedings before a jury should be accepted as worth-while expenditure to ensure that the person who has been injured has a fair chance of getting proper compensation. Efficiency and speed should not be the be all and end all of our court procedures.

It has been argued that juries can be inconsistent, but surely the same can be said for judges sitting without juries. We have seen some bizarre, eccentric behaviour by members of the Judiciary. There has been great variation in their sentencing policies, certainly in the District Court. We are well aware of a judge who has made some extraordinary decisions, who has dismissed whole rafts of motoring offence cases on the vaguest of technicalities while at the same time imposing a £200 fine on a cyclist riding the wrong way on a one-way street. There is inconsistency which beats anything that you will discover in fiction. In the criminal area it is well known that there are judges who are seen to be hard or soft and that lawyers in many instances engineer cases so that their clients can avoid appearing before a particular judge because they feel that they would get a different verdict possibly from another judge. If juries are abolished it is also likely that judges will get reputations for being generous or tight and that lawyers may engineer artificial delays so that their cases can be heard before a soft judge. Obviously, insurance companies would try to engineer to get their case before the tight judge and this is likely to lead to more delays and more costs, so where are the savings to be made in that regard?

A significant point that those seeking a change in the system have not mentioned is that many cases in which awards were made by a jury in the High Court are brought before the Supreme Court and that they are coming up regularly more and more in higher courts so that there is a fairly regular review of compensation awards. Apart from all of the arguments about costs and savings here, there and everywhere, and the question of comparing premiums here and in Britain, the fundamental case is that juries are a part of our legal proceedings. If the jury system is abolished in relation to personal injuries, will it be abolished in other cases in which damages are involved? Will it lead eventually to abolishing juries in criminal cases? The involvement of ordinary citizens in the law by membership of juries is a desirable and democratic procedure.

It was not too long ago that juries were selected on the basis that they were property owners. When that was changed to a position where any made over 21 could be a member of a jury, it was hailed as a great advance — and so it was. It was even more recent that women attained the right to serve on juries. That was achieved because a couple of women some years ago brought a case to the Supreme Court to establish their right to serve on juries. The abolition of juries and the gradual erosion of the power of juries ensures further alienation of people from legal procedures. Under the Criminal Justice Act unanimity of the jury is no longer required in criminal cases.

I oppose the Bill. I am not convinced that it is anything other than a device by the insurance companies, the banks and the CII to save to few pounds in legal fees. In listening to the Minister I detected that he was not all that keen on processing the Bill throught the House. For instance, he distanced himself from the primary argument of the insurance industry which is based on comparative costs with the UK. He clearly indicated that he did not accept that as a valid argument. If he disputes that, where does the case of the insurance companies lie? I cannot see where it has been made by the Minister or other speakers in this debate to date.

I urge the House to oppose the Bill. I do not think that all Deputies fully realise its implications. It has been described as the Courts Bill. In the nature of things, Deputies will take an interest only in what is brought to their attention, what they are asked to speak on if the electorate contact them about something that concerns them. I have not come across any demand in my constituency for the abolition of juries in these cases. The only representations I have got for abolition were from the Federation of Insurers and the CII. For obvious reasons, I am reluctant to go along with them at the best of times. However, they have mounted a very clever campaign by holding out the carrot of lower premiums if they manage to do away with juries in compensation cases. If you study the statements carefully, you will see that they do not offer cheaper premiums. The Taoiseach announced on the radio that premiums would fall if juries were abolished but he has gone back on that statement and has indicated that he does not think they will fall but that perhaps they might be stabilised.

I appeal again to the House to oppose the Bill.

Unlike the previous speaker, I am very much in favour of this Bill. I disagree with Deputy De Rossa as I believe the Bill will have a major effect on the cost of motor insurance in particular.

The Bill, as the Minister said, provides that actions in the High Court for damages for personal injuries will in future be tried by a judge sitting alone rather than by a judge and jury as is the case at present. However, juries will remain available in cases involving false imprisonment, intentional trespass against the person which will include assault even if the damages claimed include damages for personal injury. Juries will also continue to serve in actions for defamation, malicious prosecution and for certain probate and matrimonial matters. Our party support that. The public debate over the last few years has drawn attention to the consequences there may be for the cost of insurance if a measure like this is adopted.

Deputy De Rossa spoke about the vested interests, the power of the elite and of industry in particular. I have also been lobbied in relation to this matter over the last few weeks by the General Council of the Bar of Ireland. I received a letter from Mr. Patrick McEntee on their behalf and he argues very coherently and logically against this measure. There is merit in some of his comments but there are two sides to this issue and it would be unfair of me or anybody else who favours it to suggest that it is a panacea for all our ills or that the simple abolition of the right to have one's case tried before a jury in personal injury cases will of itself end the excessive awards which have been granted in recent years. We all know that there have been many cases where individuals received awards out of all proportion to the amount of pain and suffering caused. While it is very difficult to estimate financial awards for pain and suffering, nonetheless, at times one can see that excessive awards have been granted.

This Bill, in conjunction with recent decisions by the Supreme Court, will go a long way towards avoiding the payment of excessive awards. It will also have the effect of allowing us to have more consistency and predictability in awards. The fact that there is very little consistency at present and that awards are unpredictable means difficulty for the insurance industry. It also means that very few people are prepared to settle out of court because, despite advice they may get from their solicitor, they are very often under the impression that if they go before a jury the case will be assessed more favourably and they will get a better deal.

The present law in regard to negligence requires proof of fault before the plaintiff can succeed. Accident litigation occupies a great deal of judicial time and it has been argued that the system is inefficient and should be replaced by a no-fault system of liability. Indeed, the Minister spoke about the need to examine whether we should continue to have a fault based system or to consider having a no-fault system. He said that there should be more investigation and discussion in this regard and that will obviously take place. Two important changes which are about to be implemented and which could help to speed up litigation and reduce court costs should be noted whether we talk about fault-based or no fault-based systems. This Courts Bill will remove the right to a jury trial in the vast majority of personal injury cases. The two senior rule will be discarded as a consequence of this and this is also very welcome.

Many of the speakers in this debate have gone to great lengths to deal with the defects at the moment, particularly in relation to the number of people driving uninsured vehicles. Deputy Flynn referred to questions he asked the Minister concerned about the decision to make it compulsory to display a disc on one's car from 1 July. He indicated to the House that he was unable to get very clear details from the Minister about the nature of the disc, the colour, the size and so on. I hope this matter will not be delayed because it will go a long way towards ensuring that fewer people drive uninsured vehicles. It must be a concern to all of us. In recent years I have dealt with cases where people have been injured by uninsured vehicles. It is very annoying and it is a major factor in the high cost of motor insurance. We must not under-estimate the impact that has. Simply abolishing juries will not solve the problem of the high cost of motor insurance if many vehicles are still driven without insurance.

There is no doubt that in the recent past juries have awarded very inflated sums to individuals. It must be remembered that many of these awards were set aside and reduced on appeal to the Supreme Court. Yet juries did set high standards for settlements in the vast majority of cases which never came to court. Ironically in recent years jury awards, influenced by high insurance costs and the collapse of insurance companies, have become more moderate and this is welcome. Awards by judges alone to compensate persons who have suffered serious damage will not be significantly lower; this will always be a costly business.

It is impossible to justify the continuance of the two senior rule which I believe is a restrictive practice. Its abolition will probably have very little effect on insurance premiums but, in the long run, it will have an effect on the procedures in the court and on the involvement of two or more members of the legal profession in very many cases. It has been argued inside and outside this House that in some cases one can have up to eight lawyers in a case. This is a disgrace and it has to be very costly for the individuals involved. Equally the duplication involved is unnecessary. It is time this practice was abolished.

The new rules of court to be introduced this year will help to streamline and improve the general efficiency in our court system. But the preparation of any case of importance will always be a complicated and lengthy process if justice is to be done. Many Members of the House felt that the passing of this Bill would help to speed up the hearing of cases before our courts. I hope that will be the case. But the preparation of evidence will always take a considerable length of time. I do not know what the actual effect of this measure will be on the length of time it will take to have a case heard before our courts. But one would hope that it will have a significant effect on lessening the timespan and ensuring that cases are heard more quickly.

Much discussion on this Bill has centred around the effect it will have on the awards themselves, on the taking of the cases before the courts and on whether or not the sum awarded to a person for a particular injury can, ten years down the road, be still adequate or excessive, on the fact that one is asked to look into the future and predict what is going to happen. It is for that reason that I think after some time there should be the possibility of having cases reviewed. We believe that the introduction of instalment awards would improve the situation; people would get instalments annually and these awards would be reviewed after a couple of years to see if the details given at the time the case was heard before the court had come to pass. Many people get rather high awards and, five, six or seven years down the road, one discovers that the injury may not have had as major an effect on the life of the person as had been anticipated. It would be a good idea if we could examine the possibility of introducing instatement awards, and reviewing such instalment or lump sum awards every couple of years and keeping cases under constant review, particularly in relation to injuries that occur to very young people.

Deputy De Rossa said the abolition of the jury system would mean that ordinary citizens would not now have any say in the kind of damages awarded to individuals. It is true that the jury system has served us well but we cannot say that a jury composed of a number of people will make a fairer, more just award than one individual judge sitting in judgement. That is a very subjective view to take. I believe most members of the Judiciary are reasonable people; they will look honestly and fairly at the cases before them; they will listen to the evidence that comes before them on behalf of the person who has suffered the injury; and they will try to decided, on the legal advice presented to them in the court, what a fair and adequate sum might be.

I sometimes think that one person in that situation, sitting in on many cases and being able to compare cases and see how people in different situations are affected, might be in a better position than a jury that sits once only on a particular case and where the individuals have never come across the circumstance before. This may well produce a fairer and better result. One would hope that there will be no injustice done and that no individual who has suffered serious damage will have to lose as a result of the passing of this Bill.

I hope the abolition of the jury system in personal injury cases will have the effect of ending the inconsistency in many court cases, not just in relation to personal injury awards but in our court system generally. There have been many calls inside and outside this House for greater consistency in sentencing as well as in relation to awards made to individuals. This must be a good thing. Whilst we all realise that circumstances are different there are times when in similar circumstances very different awards are paid to individuals.

Equally, we will have to become more viligant in relation to drunken driving laws. We have fairly strict drunken driving laws but I do not think they have had the desired effect, perhaps because they have not been implemented effectively because the Garda have not the resources. We have not been as viligant as we might be. We still have a high incidence of people driving cars under the influence of alcohol and that is to be regretted because there have been very serious accidents as a result and serious damage done to individuals and families. I cannot over-emphasise the need to be ever vigilant in ensuring that our drunken driving laws are observed and enforced. We must be extremely strict in dealing with people who drive cars under the influence of considerable amounts of alcohol. We have to be viligant in ensuring that those who drive vehicles are properly and adequately insured. These two measures alone could have a significant effect on the cost of motor insurance and of insurance in general.

I know that the Oireachtas Joint Committee on Small Businesses looked at the question of the cost of insurance to employers and they were talking in particular about small companies. The cost is rather enormous and it is particularly difficult for those involved in small companies to bear the cost of insuring their employees againsts any injuries that might occur in the work place. Many take the view that the employer must accept all the risk for any injury in the work place. We must continue to have a fault based system in these circumstances to ensure that, if the fault rests with the employer, that is where the responsibility will lie. We must realise, however, the burden that this places on employers and people in industry and the resulting unemployment.

There are many who say that individuals like to serve on juries and that it is a right which very few people would freely give up; but in the course of my work as a public representative I frequently get requests to have people taken off jury service. It does not seem to be popular with most people. I was interested to learn from the Minister's Second Stage speech that only 30 per cent of those called for jury service turn up and serve on juries. This involves as considerable amount of work for the court authorities who must call so many people, 70 per cent of whom do not turn up. There is obviously a huge administrative burden imposed, at a fairly high cost, in calling so many people to serve. The fact that it is not very popular may not be a reason for abolishing juries, but in the Circuit Court since 1972 I understand that a jury has not sat in civil action cases on personal injuries claims. If a judge can do a good job at Circuit Court level, why can it not be done well at High Court level? Although one is talking about different amounts of money, the principle is very much the same.

The Prices Advisory Committee on motor insurance, known as the MacLiam Committee, concluded in their report in 1982, although recommending the retention of the jury system, that there was a need to deal with the problems of inconsistency and unpredictability in the awards being made before the courts and the effect this was having on industry, particularly on the motor industry. I do not know how one could deal with this problem if one does not abolish juries. I cannot see a way out other than the decisions of the Supreme Court in which they made it very clear that certain limits must apply and that awards over those limits cannot be granted except in very exceptional circumstances. However, the limits that they have applied are rather high and in the ordinary run of the mill average case it would be very hard to avoid a huge amount of inconsistency and unpredictability. One would hope that the judges sitting in these cases would to a large degree ensure consistency across the board so that people in very similar circumstances will get fairly similar awards. In many criminal cases defendants know that if they go before Judge X they will get off or will have the benefit of the Probation Act, but if they go before Judge Y they will be sent away. I hope we will not have the same difference with regard to awards as we have in sentences imposed in the Criminal Court.

Many have argued for the Oireachtas to set down very stringent limits as to what can be granted in particular cases. It would be difficult to compile a long list of suitable awards for any situation which might arise. Circumstances differ and two people in exactly the same accident can often end up with very different injuries. It would be almost an endless list, because of the many different effects which accidents can cause. If we could compile such a list and make it work there would be no need for courts. Courts are there to sit in judgement to decide who is at fault, whether a particular award should be granted and who is responsible for the damages.

Would the Deputy come over to our side?

The Deputy is surprising me.

I know that there has been opposition to the Bill, but I have not heard very many speeches. In those that I heard there was much agreement. Some of the points made by those opposed to the Bill are worthy of consideration. There is a lot of merit in them. The position is not as clear-cut as it could be, but the passing of this legislation and the effect of the abolition of juries in personal injury cases on balance would have a good effect, both in terms of the cost of insurance and the delays involved in bringing cases before the courts. It is hoped that it will lead to consistency, more predictability and that justice would be done and be seen to be done.

Deputy De Rossa said that very few people had approached him about this matter and among the public in general there is not very much interest in this Bill. It is only those who have been affected, who have gone through the mill and have had to appear before a court who have a particular interest in it. The interest appears to be from the insurance industry and from industry in general, from employers and also from lawyers who appear fairly unanimous in their opposition, and one wonders why. They appear to think that juries are preferable to judges deciding in certain circumstances. With the exception of those who are very much involved in vested interests, to use Deputy De Rossa's term, the public on balance are not interested. The effects of this legislation, allied with the Supreme Court decisions, will be good and it is hoped will lead to cheaper insurance and will be successful in that we will not regret having done something that is unjust or unfair.

Deputy Harney has given some of the most cogent reasons that I have heard for retaining the jury system and not leaving the determination of these issues to a judge sitting alone. Her heart is not in this debate, but she does express a hope that the judges might be consistent. There is a heavier hand, a stronger conviction among the Progressive Democrats who have spoken for the proposal to support the abolition of juries than Deputy Harney believes, but that is another matter.

I must declare a certain professional interest, although it is a long way from what might have been declared as a personal interest in the days when the Minister's predecessor from my county, Minister Moran, used to charge those from the Fine Gael benches who had come from the law courts as coming from the lucrative vineyards, having finished their trade on the day and come over for a passing visit to Leinster House. While I declare a personal interest as a member of the Bar for over 26 years, the fact that I have been a Member of the Oireachtas for almost 21 of those years must show that the amount of time that I spend in practice these days is very limited. I leave it to the judgement of the House as to whether my pretty constant attendance here, which I believe any day will measure up to that of any other Member of the House, will demonstrate that I am not making a lucrative income from the profession in which I would otherwise be engaged.

I come to some of the points raised by Deputy Harney, which bear analysis in the first instance. The Deputy referred particularly to the abolition of the right to jury trial. That is what the Government are proposing in this Bill. With regard to measures established and respected, such as a right to trial by jury in this instance, the House should think long and hard before reacting to the pressure groups, to prejudice, or to self-interest of any one element. If somebody said that as the Bar were making a very lucrative profit from these matters let us abolish the Bar, there could be a case for doing so; but the fact that there might be somebody who would benefit willynilly because of the jury system does not justify abolishing that system.

Deputy Harney said that this measure will not bring down insurance costs. The major issue which is being presented to us is that it will bring down insurance costs. She is not alone in saying that. The representatives of the insurance industry agree with that. Their spokesman, Mr. Dermot Ryan, stated categorically that the abolition of juries will not reduce insurance premiums. If this Bill will not reduce insurance premiums, one has to ask what is the purpose of it. Is it to enhance the profits of the insurance companies? Is it to enable them to secure a greater and more constant source of income and to pay out less to those who are insured with them for the purpose of protecting themselves against claim or injury? If that is the case, this House should be in no way a party to such a proposal from any section in the community.

I do not blame the insurance industry for making a case which would enable them to enhance their profits. To the extent that I practise now, I represent insurance companies at least as much as I do plaintiff interests. That is not very much in any event. To that extent I am speaking against my part time employees. Insurance companies are entitled to make this case. Other people do it also but that does not mean we in the Oireachtas should abolish the right of trial by jury which is very important in terms of justice for people who suffer serious injury and who will have in many cases if not permanent defects very serious ones because of accidents at work or car accidents. It is not fair or right to propose that juries should be abolished on that basis.

The Minister mentioned seven or eight different options which the Government had considered including retaining the present system, a tribunal, trial by judge alone, trial by judge with assessors and trial having defined the limit of the issues beforehand. Without giving any argument whatsoever he then stated baldly that the Government decided to accept the proposal to abolish trial by jury and to introduce instead trial by judge alone. There was no case, no argument and no attempt to say why any of the other options were discarded. The House is entitled to much more than that from any Government who propose to abolish what is an established right for citizens who are injured in accidents.

Juries deal not only with the amount of awards but also with the question of liability. In regard to what is reasonable between citizens it used to be said in England that it was the standard of the man on the Clapham omnibus meaning a regular representative citizen. It could be the man walking along O'Connell Street, may be unemployed as many of them are, if there is such a thing as a representative person in our society. That is the standard of care that juries establish. Whatever we say about the level of knowledge of the law of juries, when it comes to making a judgement as to whose fault something is I cannot think of anyone better qualified than 12 people selected from among ourselves to decide whether or not an accident either at work or in a motor car was the fault of the person against whom the claim was made.

For a very considerable time they have been apportioning liability between the plaintiff and the defendant. In many cases they decide that the accident was 75 per cent the fault of the defendant and 25 per cent the fault of the plaintiff. The best example would be in relation to people who do not wear seat belts and who suffer accidents or injuries which might have been prevented had they been wearing seat belts. We are talking about standards of reasonable people. Any lawyer dealing with a case like that which goes before a jury, where the person injured was not wearing a seat belt which was available, will immediately reduce the gross value of the settlement by 25 per cent in the knowledge that if he does not do it the jury will do it for him. They have done so very consistently.

In this instance if a jury are delegated to make a judgement in a criminal matter as to whether or not a person is guilty beyond reasonable doubt, surely they are equally and uniquely qualified to make a judgement as to the balance of probabilities, the fault of one or other of the parties. Any one of us would inevitably have a subjective view in a matter that is and always has been a matter of common sense. There is no point in pretending we would not. We would endeavour to be fair and objective according to the highest standards of the Judiciary of Ireland, which is of the highest standard, particularly in the High Court. The present High Court bench is one that any country in the world would be very proud of. They would acknowledge, both personally and collectively, that they have different judgments of standards in terms of making a decision as to whose fault something was. How would they otherwise argue? Deputy De Rossa, Deputy Harney, the Minister or myself would have different opinions. If there were eight more of us we would have the average decision as to whose fault something was. The Government propose to abolish that. They are making a mistake. It is retrograde particularly as the case is not based on reduction of costs to employers in terms of insurance premiums, to motorists or otherwise.

I will demonstrate a couple of developments of recent times. The case of Cooke and Walshe was taken to the Supreme Court a few years ago, which the Government are now proposing to correct by way of legislation which is their right. In that case the Supreme Court held that henceforth where a person is liable for cover under general social welfare insurance or medical card care — our general insurance applies to the vast bulk of our employees — the hospital and medical expenses in respect of a person injured in an accident are not now chargeable against the defendant.

In this instance, in effect, it is not chargeable against the insurance company. Since the decision in Cooke and Walshe the State now provides, as it would in any case, for the costs of the medical, maintenance and hospital care of persons injured in accidents. The bill has been passed from the insurance companies to the State. The insurance companies are not able to tell us what the reductions in their costs were as a consequence of that decision in Cooke and Walshe. They should be able to because it is very easy to quantify and to indicate what it has meant to them either in savings or in enhanced income. The general estimate is that it represents something of the order of £4 million per annum, maybe a bit less, maybe a bit more as sometimes we are talking about very heavy costs.

Since Cooke and Walshe, insurance premiums have not gone down one farthing. Some may say one has to take the rough with the smooth. If one gets a bonus in a Supreme Court decision, he is entitled to it. One is equally entitled to say, if that has been the consequence, why should we begin to believe it is going to be passed on directly now? In fairness to the insurance companies and in particular to their spokesman, Mr. Ryan, they do not claim it will. Therefore, what is this about? It is simply about reducing the awards which may be given to plaintiffs. Even that may not be achieved. I was very impressed by the points made by Deputies De Rossa and Harney in terms of consistency. I have to say to Deputy Harney faint dreams and foolish hopes. We may never see the consistency she spoke about in terms of judges' awards for damages. In the very same breath as Deputy Harney suggested that we hope to get consistency in terms of judges' awards she also acknowledged it is a matter of some concern that we are not getting consistency in sentencing in the courts. I want to ask the House if that is a matter of concern. I am not going to comment on whether or not people are concerned but there have been some decisions which have caused me concern in terms of inconsistency.

Remember this, two points follow. The Judiciary are independent under the Constitution. No one can say anything to the Judiciary as to whether or not they should change their sentencing policy. Of course, we can express views publicly but effectively we can do nothing to bring about a change in sentencing policy. We can encourage them and suggest to them that they should meet more regularly and compare sentences. We could suggest to them we should not get extremes at both ends. That is as far as we can go. If that is the case in terms of sentencing, will someone please indicate to me why suddenly we expect in terms of awards to plaintiffs who are injured there will be total consistency? This is not by way of criticism of judges but each of us as an individual has a different sense of values. It is a fact, no more, no less, that some judges have a different sense of monetary value. Some in their own way might be people of a rather broad attitude. Maybe some are very big spenders. Others may be much more prudent. Others whom I will not accuse of being miserly would not be known as expansive in their normal social attitudes.

I want to record that the High Court is an excellent bench. Any experienced practising lawyer could tell us this now as I can from my own experience. If I am told tomorrow morning that I was in before Mr. Justice X, I would say let us go ahead but then if I was told tomorrow morning I was going to be in before Mr. Justice Y I would say we had better settle this quickly because I know, as everyone down there knows, that the monetary values and assessments of individuals are different. That must not, as I hope it will not, be taken as a criticism. That is what the jury system is about. That is what it is there to protect against. I cannot say this definitely but I have a fairly informed opinion that the Minister who made some reference to this in his opening speech is incorrect. If we take a straw poll amongst the current excellent High Court judges — it is not they are anxious to avoid work because juries do not mean less work for them — we will find that the majority of judges have come to the view that the present system is better and fair. I cannot put it beyond that, as no one can do a poll. It would be wrong. No one from the Department of Justice can go to them and say which way do they want it. There may have been prior consultation. If they want to refer to consultations they had better go back and make sure they update them before statements are made in the House which suggest that the judges want the abolition of juries. I am not speaking for them and, therefore, I do not know. If one contacts people who are more regularly in contact with them one will find that they recognise on balance that the jury system is the best one in principle.

That said, there are improvements which can be made. They must be made to ensure a better system and consistency and anything which will help the 12 citizens to discharge their duties more effectively between other citizens who have a claim one against the other. Some of these improvements are obvious. I am talking only of legal procedures. There is no reason in the world a jury should not be told what are the general parameters or guidelines for damages in individual cases. There is no reason in the world juries cannot be told why the Supreme Court laid down that the maximum for general damages for pain and suffering is £150,000 for the more serious injuries. What increases the award after that is actuarial evidence for loss of income. There is no reason juries cannot be told that the maximum which the Supreme Court hold tolerable for the loss of an eye is £60,000 in certain cases; that in the case at hearing, perhaps, the amount is somewhat less. There is no reason at all juries should not be told that if they award a sum in excess of that they are exceeding the norms set by the Supreme Court, that almost certainly the award will be set aside on appeal.

Why should that not be done? Judges' rules can be changed. Up to this point the judges' rules have not provided such guidelines but I cannot see any reason such guidelines cannot be given to juries. I see every reason for their being given because it would be difficult for any of us, no matter how professional, to estimate the value of general damages. Guidelines should be given as to what the Supreme Court have observed and regulated constantly as being acceptable as maximums. That should be done. It would be very helpful to juries and would enable them to discharge their responsibilities in a more satisfying and effective way. The Minister did not even refer to that. He referred to it as being one of the options. But he made no case, good, bad or indifferent, for dismissing or excluding it. He owes it to the House, and to the public through this House, to come in and tell us why not. I know it is one option that lawyers and jurors also would strongly favour.

As to the amount of awards generally, the main element in some major cases emanates from what is called actuarial evidence, not just compensation for pain and suffering but rather for what is clearly identifiable and established as loss of income potential. When doctors establish beyond doubt that a person will be unable to work again or, alternatively, will be unable to continue in the same job or similar type of work but will have to take a job at a lower level of income, the standard practice is to say: if that is the case established on medical evidence — and it is medical evidence only that establishes it because a judge would not allow actuarial evidence unless that was clearly established — then an actuary comes in in his professional capacity. Actuaries can be expensive but they constitute important elements of such cases. They calculate, by projecting into the future, the value of that loss of income to the claimants. While there is not an absolute obligation on juries to include that — they will hear perhaps conflicting evidence or presentations from the lawyers representing both sides — they will have the actuarial evidence to guide them and it is that evidence in terms of loss of future income that really accounts for the major damages.

No judge will change that. A judge will not ignore the fact that a person earning, say, £8,000 per annum at a certain job will be unable as a consequence of his or her accident to perform that task any longer, or has not done so for two or three years. He may now be employed on a job earning £4,500. One does one's actuarial calculation on the differential of £3,500 up to normal retirement age of 65 and that is how one arrives at the appropriate compensatory figure. Therefore it is in respect of young people injured that the major awards are occasioned — the paraplegics, the quadriplegics — because their income capacity will have been reduced. In other cases medical care may be necessary for the remainder of their lives which is also calculated on an actuarial basis. Therefore, it is not a question of somebody saying: throw this in because of the general pain and suffering in the case of the loss of an eye, a leg or brain damage. Juries do not go wild that way. The figure is arrived at on the basis of the actuarial calculation of medical costs into the future or loss of income. Who is to say that that is not fair?

People have talked about delays in the system. Any lawyer with any experience would be very reluctant to bring on a case for trial in the High Court certainly within two years of an accident for the obvious reason that, before that time has elapsed, there will not have been a clear prognosis by the medical experts as to the permanent and final outcome. One must wait at least two years from the date of accident for a proper trial to take place when one will know the full consequences of the injuries. In some cases, in the interests of a client, one may decide that it should be delayed three or four years. People tend to say that juries cause delays. For what it is worth let it be said that in most cases now one can put a case down for trial in, say, Trim or Dundalk for the next session and it will be heard in the next session. If one puts a case down for trial in Limerick and the next session has begun, it will be heard within that session; likewise in the case of Cork with three judges sitting. Any case set down for trial is now being reached within a maximum of six months. Probably it is still a little longer in Dublin but the time lag is reducing considerably. I want to pay a special tribute to Mr. Justice Liam Hamilton, President of the High Court, who has so organised the business of the courts as to ensure by way of the efficiency of the system, that cases come for trial much faster. In any of the venues one will not find a delay of more than six to nine months and, in some cases, there is no delay at all. Delays such as occur take place deliberately because sufficient time is required to elapse before one can take decisions as to the final outcome.

Therefore I do not think people should contend that trial by judges alone will be much quicker. Let me advance a reason why I believe it will involve greater delay, not in the conduct of cases because cases will be dealt with more quickly when they do get to court — I acknowledge that — there will be no need to address juries on what are their legal obligations, on what is their role and that of the judge; there will be no need for that, a judge will start right into a case on the evidence. With the option of seven judges dealing with High Court actions in terms of liability and awards does anybody think that people will not wait until the last minute to see which judge will handle their case? In my view that system will mean that, instead of cases being settled earlier, it will be much later, that there will be more cases tried. Given one's range of experience of individual judges, if people discover that if their case goes before Mr. Justice X they will get an acceptable settlement, people will wait until the last minute. They will put their case down for trial. Then perhaps when they see it going before Justice Y, they will decide that is not so good, that they have come out badly from the draw, when there will be a rush for settlement. On the other hand, if it looks good, if one's case is coming before a judge with a different view the insurance company may decide to push for settlement. It has been the experience in England that the system does not reduce delay, quite the opposite. When juries were abolished in the High Court in England — I accept that awards came down, although Deputy Harney made an important point in relation to recent jury awards — the Minister will discover that the system there could not have been operated were it not for the fact that 42 extra judges had to be appointed to cope with the increased volume of work because cases were being brought to trial that otherwise might have been settled out of court. In terms of scale that 42 there might have to be four here; I do not know. That is something that will have to be considered here. Yet we are talking about saving the taxpayer costs.

Both Deputies Harney and De Rossa mentioned the general cost of insurance and uninsured driving. Normally, if one were to draw a line across the most serious accidents, those involving the most horrific injuries, one would discover that they occur to a much greater extent with uninsured drivers than with the conventional, prudent driver who provides his own insurance. The most horrific injuries occur as a result of either uninsured or drunken driving. One would not have to spend too much time demonstrating why that is the case. The real issue which was addressed by both Deputies Harney and De Rossa this evening was: what are we going to do about uninsured driving. If we are interested in reducing cost is it not time the Government faced their real responsibility, as Governments must, of ensuring that the incidence of uninsured driving is reduced dramatically because it must be.

Debate adjourned.