In speaking to amendment No. 4 I endorse the comments on this subject made by Deputy McDowell. The Deputy touched on one category of case in which it was appropriate to preserve the possibility of a jury trial. The Deputy mentioned a case of negligence actions against a doctor. That parameter should be broadened somewhat to include any case of a claim for damages for negligence against any professional person. People might take the view that they might not get a fair trial in such an action before a judge alone because professionals by and large come from the same category of people as the Judiciary and there might tend to be a bias in the way a judge alone would hear a case. That may or may not be well based, but for appearances it is very important that when a case of professional error is to be determined a jury should be provided. This aspect, interestingly enough, was touched on in Blackstone'sCommentaries, written 200 or 300 years ago, when Blackstone dealt with this class that a judiciary are drawn from and the important value that a jury system has in preserving the position of ordinary people. It is worth giving a number of extracts from what was written all those centuries ago and to look at the situation as it is now, because his comments have the same force today. In relation to a jury trial he states at page 378 as follows that:
...it is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals ...The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely intrusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest offices in the State, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity: it is not to be expected from human nature, that the few should be always attentive to the interests and good of the many... But in settling and adjusting a question of fact, when intrusted to any single magistrate, partiality and injustice have an ample field to range in; either by boldly asserting that to be proved which is not so, or by more artfully suppressing some circumstances, stretching and warping others, and distinguishing away the remainder... This therefore preserves in the hands of the people that share, which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens. Every new tribunal, erected for the decision of facts, without the intervention of a jury, (whether composed of justices of the peace, commissioners of the revenue, judges of a court of conscience, or any other standing magistrates,) is a step towards establishing aristocracy, the most oppressive of absolute governments.
It is interesting that the point I am trying to make here — and a similar point was made by Deputy McDowell — is that where a person is alleging in a court a professional error on the part of a professional person that person will want, and reasonably is entitled to, a jury as the arbiters of whether negligence has occurred in that professional conduct or not. That is their right. That is what the people want. They want that in all cases in my opinion and that is something to which scant attention is being paid. As evidence of the fact that they want juries it is open to any person bringing a case for trial to opt for hearing by judge alone if he or she wished. If a person wanted to have any negligence action tried by a judge alone it was open to them to opt to do so in their notice of trial. I suppose in 99.9 per cent of cases they showed what they wanted by opting for trial by jury. The Dáil has reached the position where the Bill has passed both Second Stage and Committee Stage but I think we should have a care and recognise the fact that there are a very small number, relatively speaking, of special situations that require special attention and which require to be distinguished from the general rule. If we bring in a broad sweep and throw all out in one effort and categorise all these actions as being of a basically similar essential point, the Dáil would be making a very grave mistake.
I have referred to the case of professional negligence actions. Most of the decisions in England that have been given by judges alone — or certainly some of those that I have read — have tended to take a rather harsh view against the plaintiff and have tended somewhat to lean towards favouring the professional person who was on trial in a civil suit for having made some professional error that could well have had devastating consequences on the plaintiff. There has been that tendency to lean towards the profession. The only way to cope with that situation is to preserve the possibility of a person bringing a claim, under that heading, to have a jury trial, not necessarily in every case, not necessarily as of right but to leave it open for an application to be made to the judge to highlight a particular circumstance of any particular case and to leave it open to the discretion of that judge to order a trial by jury if he considers it appropriate to do so.
There is one other category that should have a like possibility reserved and that is those few cases where the injuries are of a very severe and grave nature. I am talking about people who find themselves as a result of an accident ending up as paraplegics or quadraplegics, and condemned to spend the rest of their lives in wheelchairs and all the horrific prospects that ensue for them. Very often that happens to people in humble walks of life. The consequences for people who have suffered horrific injuries of that nature and whose whole lives and existences for the remainder of their days will depend on the response they get from a court, be it from a judge or from a jury. Those people would feel that their interests would more reasonably be served in having the damages assessed for them by a jury. The type of damages that have to be taken into account in such a case are damages that involve those every day needs, for example, care, nursing by day and by night, feeding the person, attending to their toilet needs, their linen needs, and so on, for the rest of their lives. A person in that position would feel that a jury of their equals, of ordinary people who make up juries, would have a better down to earth understanding of what their needs would be for the rest of their lives. In cases of very serious injury — there are not very many of them but they occur from time to time — in common with the other professional negligence cases referred to, and the comparatively rare cases referred to by Deputy McDowell, of a judge himself being involved, the possibility only should be there of a judge to exercise his discretion to allow that case and that plaintiff to have his case determined and his damages assessed by jury.