Amendments Nos. 1, 2, 55 and 57 are related and will be discussed together by agreement.
Civil Liability and Courts Bill 2004 [Seanad]: Report Stage.
I move amendment No. 1:
In page 5, line 38, after "Act" to insert ", other than the provisions specified in subsection(3),”.
I indicated on Committee Stage that I proposed to amend the commencement section to allow for certain provisions to come into operation immediately. The provisions concerned are sections 2 to 4, sections 31 and 32, Chapter 1 of Part 3 and sections 49 and 56. The other sections will be commenced by a commencement order made in the usual way.
The purpose of two of the later amendments is to subtract special commencement provisions which will be made redundant by earlier amendments.
I am quite happy with the Minister's proposal. It would appear to be a sensible approach if he could commence some of the provisions straight away. It would be helpful if he could give some indication to the House as to when he would expect the other provisions to become operable. I am sure practitioners would be interested to know when the full thrust of the Bill, as it were, would be in operation.
I recall when I was a student, one provision in the Civil Liability Act 1961 was to be made operable by ministerial order. I think it had to do with the difference between misfeasance and nonfeasance. If the council dug up a hole in the road and somebody fell into it, a claim could be made but if the hole wore away through time or otherwise, one could not claim. I have some vague recollection that the difference was to be abolished by ministerial order but I do not recollect that order ever having been made. Perhaps the Minister would give us some idea as to when he would expect the outstanding provisions to come into operation.
I recall the relevant provision in the Civil Liability Act 1961. It was never commenced.
That is what I thought.
Eventually a Roads Act swept it away and got rid of it. The House will be interested to know that various hopeful lawyers who thought it would be a good idea if it were commenced at one stage were so desperate that they resorted to attempting to mandamus the Minister to commence it. The courts said that was entirely within the Minister’s say so and that he was entitled to refuse to do so.
Some of these provisions will require some time for preparation. Part 2 in regard to civil liability is clearly one area which, in some cases, will require advance notice to litigants and the like because of the use of new summonses, new procedures and so on. I cannot give an exact time as to when they will come into effect but the very fact that I moved to get this done now rather than later indicates that I very much want to get this new procedure into effect as soon as possible. I will confer with the Courts Service as soon as I can to get the bulk of the provisions of the Bill into operation as soon as possible.
Chapter 1 of Part 3 will come into effect immediately. The amendment of the provisions of the Personal Injuries Assessment Board Act will also come into effect immediately. All I can say is that I will get on with it as soon as I can. It is a matter of urgency for me that it should have full effect. The Deputy will be interested to know that I attend regular meetings of a three Minister sub-group within Government of which the Tánaiste and the Minister for Transport are also members and if I do not keep the pressure up on this I will be sent home with my tail between my legs.
That would never do.
Amendment agreed to.
I move amendment No. 2:
In page 5, after line 41, to insert the following:
"(3) Sections 2 to 4, 31 and 32, Chapter 1 of Part 3 and sections 49 and 56 shall come into operation upon the passing of this Act.”.
Amendment agreed to.
Amendments Nos. 3 and 4 are related and will be discussed together by agreement.
I move amendment No. 3:
In page 8, to delete lines 13 to 18 and substitute the following:
"(a) the addition, at the end of subsection (1) of section 3 of ‘ , where the cause of action is one arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person, and after the expiration of two years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured in all other actions claiming damages in respect of personal injuries’,
(b) the addition, after ‘three years’ in subsection (1) of section 4 of ’ , where the cause of action is one arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person, and after the expiration of two years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured in all other actions claiming damages in respect of personal injuries’,
(c) the addition, after ‘whichever event first occurred’ in subsection (1) of section 5 of ‘ , where the cause of action is one arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person, and before the expiration of two years from the date when he or she ceased to be under a disability or died, whichever event first occurred, in all other actions claiming damages in respect of personal injuries’,”.
It is a pity we are rushing this legislation. I have not had time to collect my thoughts or properly study the amendments since Committee Stage was only taken yesterday. During Committee Stage the Bills office rang me looking for Report Stage amendments even though Committee Stage had not been completed.
I wish to press this amendment and argue strongly that medical cases should be treated differently to other cases. The Minister has suggested a two-year limitation. I suggest it should either be left as it is or we should consider a system similar to the British one. When I raised this matter on Committee Stage, I did not hear what the Minister had to say on the different British system for medical negligence cases, which is basically the subject of this amendment.
Anybody who has been through medical negligence cases will attest that delays occur. Reports are often not forthcoming for various reasons, sometimes due to misguided loyalty between doctors or because they have not had time to prepare the reports. People may seek medical reports even when not intending to take legal action or seek compensation. They do so to find out what went wrong, or what is wrong with them or their relatives. They basically seek total disclosure, which can take a long time, after which medical experts must look at the reports to determine whether there is a possible case of negligence. It is then necessary to find a solicitor to determine what charge can be brought against the hospital, doctor or even dentist. That all takes time and two years is a limited time in medical terms.
We have received submissions from various groups and individuals, including one today from a woman in Cork who highlighted the length of time taken in the case of her son. If a two-year deadline had existed, she would not have been ready within that time. Patient Focus made a submission. Some individuals and solicitors raised specific questions on this aspect. The Law Society made a substantial submission on the Bill pointing out that in complex cases it may not be feasible to obtain expert reports within 24 months, as provided for in the Bill, and that this could place a solicitor in an invidious position of "having to issue proceedings in order to protect the client's interest, but potentially in a manner contrary to the judicial pronouncements as to best practice". Basically a solicitor might have to opt for a half-baked case rather than waiting until the details, reports and expert opinion have been gleaned. In those circumstances the extra 12 months should be allowed, but only in this specific instance.
On Committee Stage, I gave the example of a rape victim deciding to initiate civil proceedings. It can take a victim months or years to come to terms with such a traumatic event and some might never do so. In those cases time would be running out under the Statute of Limitations. In such cases, waiting for the Director of Public Prosecutions to take criminal proceedings impacts on the Statute of Limitations. At the very least the time taken by the DPP to consider taking a criminal case should not be taken out of the two years within which a person can take a civil case. Otherwise as the Minister said, everybody who has been wronged will both expect the State to take a criminal prosecution in cases of rape or serious assault and, at the same time, their solicitors will recommend initiating civil proceedings, which would result in the court system getting clogged up and could mean two cases running concurrently.
The Minister should accept the amendment. At the very least the Statute of Limitations in medical cases should be three years. Especially in the case of those who have lost loved ones, this would allow time to get over their grief, get their heads in order, get the medical reports and study them before having to be rushed into taking a case which they might not want to do. The extra year will allow them to take a decision in an informed manner and allow the solicitors put the case properly. While some cases will go outside that deadline, most cases will be able to be progressed properly within those three years by solicitors and the individuals who have been wronged.
We are discussing one of the remaining controversial points left in the Bill. Most would agree that the proposal to reduce the three-year limitation period for personal injury claims in general was sensible. The Minister's initial proposal was to reduce it to one year. While groups such as the Alliance for Insurance Reform would have been very happy with one year, I felt that was too tight. Two years is a reasonable compromise and I am glad the Minister was prepared to accept our compromise proposal in the Seanad, which is where the Bill now stands.
One issue remains outstanding, which is the claims for medical negligence. While I have no desire to focus particularly on doctors, medical negligence claims are peculiar in nature. A strong case can be made for treating medical negligence claims in a different category to ordinary claims for personal injury. Even the Alliance for Insurance Reform has accepted the distinction between medical negligence actions and other actions for personal injury. Having agreed on two years as the normal limitation period beyond which personal injury actions should not be brought, should we make special provision for medical negligence claims? I believe there is a strong case for doing so, which is why I tabled the amendment to allow three years for such claims and the amendments in the names of my colleagues in the House are along the same lines.
A precedent exists in the Personal Injury Assessment Board Bill, where it is accepted that medical negligence claims cannot go before the PIAB because medical cases are in a separate category. It is clear and common case that such claims are far more complex and difficult. They are difficult from the point of view of the patient who becomes the claimant, the date of knowledge, but the Minister could make a counter argument that it would provide extra time, but that is a grey area sometimes. The main difficulty in regard to such claims — I say this as somebody who practised law for many years — is the reluctance of other doctors to provide evidence against colleagues, which is understandable. There is a difficulty in obtaining hospital records — in some instances it could involve a number of hospitals and there is a difficulty in ascertaining what doctor may have been involved in the negligence. There could be a series of doctors involved in treating a particular medical or surgical condition. There are significant difficulties in compiling the evidence, in getting the records, and that can cause all sorts of delays.
There are cases before the court which the Supreme Court judges have decided that it was an abuse of the process of the courts to issue proceedings in a situation where the lawyers have not assembled the evidence so that they are satisfied with the grounds for making allegations of negligence. There are a number of cases where that has been so found.
Lawyers may be placed in a very difficult situation where there is inadequate time, where on the one hand, in spite of their best efforts, there are difficulties in gathering and collating the records, information and evidence and, on the other hand, they are bound by judicial stricture not to issue proceedings in a situation until all that work has been completed.
The Minister has been resisting the suggestion to date that there should be a special limitation period for medical negligence. I am not sure that position is sustainable because I think the Minister accepts that such claims fall into a separate category. He merely accepts what everybody else accepts. If they fall into a separate category, should there not be a separate period of time for dealing with them? That is the net issue. The basis for tabling the amendment is to allow the existing time limit to continue to apply to cases in that special category, while at the same time reducing the time limit for all other cases. That is the net point.
The Law Society has taken a constructive approach to the Bill. Many of the proposals in the Bill emanate from the Law Society, but it has indicated considerable concerns on this score. These concerns have been articulated and enunciated by bodies such as Patient Focus. This is the last opportunity for debating and arguing the point. I think the case for a special period of limitations for medical negligence claims is well made and I urge the Minister to accept the amendment.
I support the amendment tabled by Deputies Ó Snodaigh and Jim O'Keeffe. My amendment is on the same lines. The first amendment is very similar to a suggested wording from the Law Society.
Concerns on the shortage of time to deal with cases of medical negligence have been expressed by Patient Focus and individuals, who have contacted us, as well as the legal profession. It is particularly convincing when an individual goes through the detail of the difficulties encountered in dealing with a case of medical negligence. Something that I had not considered before is the tremendous reluctance to breach the patient-doctor relationship and the trust that has been built up. The general practitioner is generally the family doctor and nobody expects the family doctor to be negligent. Nobody expects when he or she goes to hospital that the consultant, the surgeon or aspects of the nursing care might be negligent.
We hear stories of people lying on trolleys, which is an aspect of our hospital and medical system at present. Nobody expects medical negligence in his or her case. It is with great reluctance that patients come to the conclusion that they suffered from medical negligence and they will delay the evil day of dealing with the matter. We are talking about vulnerable ill people who expect nothing but the very best from the medical services. This is different from an accident in the workplace or on the street, where there is an immediate crisis, The cause of the accident is known immediately as well as the person who is culpable. That can be dealt with straight away. It is clear and simple.
However, medical negligence, can cover individual practitioners, general practitioners, a number of hospitals and a number of consultants. It could be a combined case against a general practitioner, a consultant and so on, yet we are expected to accept that in all cases a two-year limit would apply. The more I see it, the more I am convinced that this is a different category and different considerations are being brought to bear in terms of knowledge, when people came to know about the matter and how he or she will deal with it. It is more desirable to provide for an extra year to ensure that one does not end up down the road with further litigation as to whether the Statute of Limitations was breached. That is what will happen. A number of cases may not be dealt with in the timeframe and the insurance industry will argue that the statute of limitations has been breached. The defendant in the case will argue the point and in the circumstance may have a deep pocket and will argue the case in so far as he or she can.
I do not think it desirable to put into legislation the conflict that will inevitably come about between the plaintiff and the defendant because of the shortage of time. A claim is regarded as invalid unless there are apparent bone fide valid grounds for proceeding with it and there is existing case law. The legal team must have all the arguments together before beginning the case. Because of the streamlining of the legislation and the procedures, the new personal injuries summons that is being put in place in lieu of a normal claim, there should be specific and detailed information to speed up the process.
That will make it even more difficult in the case of medical negligence where there are complex and technical issues and a number of individuals involved all of whom may well deny any negligence at all. The letter from the lady in Cork says that "eventually, as time went by the outcome of the case was that two general practitioners, one private consultant, one hospital consultant and a hospital all admitted liability". This resulted in a settlement and so on. It was resisted right up to the end.
It is difficult for a patient who certainly did not expect to take a course of action that would lead to the courts, to put such a case together within a two-year period. To expect that, and for any lawyer to be able to deal with the different agencies and persons within the timeframe, is to expect too much. It is to expect too much of particularly vulnerable people such as patients, in those circumstances.
This section stacks the cards unnecessarily against the plaintiff and will lead to expensive litigation that will not be in his or her interests. It will do nothing to improve the personal injuries compensation structure. I had accepted initially that the Minister had come up with a compromise of two years instead of either one or three and that this would be a type of umbrella period to cover all instances and would, perhaps, be the best way to go. I am not so sure now that this is the case. Within this section is a presumption that the real problem is the plaintiff. It is assumed that a bona fide plaintiff can get his or her act together within a certain timeframe and that a compensation culture exists which requires a particularly streamlined procedure. It is presumed therefore that the procedure will weed out all of the cases which are not bona fide. That is not the case and the presumption is wrong. As a result it will lead to much suffering, litigation and costs.
It is desirable that the Minister would have a rethink of this, even at this late stage. We are only talking about medical negligence, an area which has been left outside the PIAB, as has already been recognised in the distinction between medical and clinical negligence cases and other personal injuries. I do not see why it could not be reflected in this legislation as well because of the complexity, the potential abuse of the process and the difficulty of putting cases together, whether it is the general practitioner's records or hospital files, and the totality of people to be dealt with. The Minister should acknowledge that when legislation is passed in this House it is enacted in the interests of the ordinary citizen in the street. I do not believe this legislation will be other than to the detriment of the ordinary citizen, who falls on hard ways and has to take legal action to redress an injustice that was done, in the area of personal injury in medical negligence.
This issue has been thoroughly canvassed in both Houses of this Parliament and has been dealt with exhaustively. I set out at considerable length on Committee Stage yesterday the reasons these amendments are mistaken. Perhaps now I can encapsulate them because it should be done on the floor of this House.
First, it should be remembered that the law of civil liability here is not the same as it was when the three-year limit was restated for personal injuries actions in 1961. At that time the rule of discoverability was different, as a matter of law, from the present situation. In the interim the law has been amended as regards limitation on liability by reference to time to provide that the accrual of a cause of action for the purposes of the three-year, or any other, limit, runs from the date of discoverability. That is the later of two dates, either the date on which the wrongful act occurred or alternatively, the date on which the injured party had actual knowledge of the injury done to him or her.
It must be emphasised that as regards medical negligence cases, that radically changed the law in a way which was pro-plaintiff. It meant that if a botched operation was done on a person, the clock was not ticking away at a time when the person had no knowledge of the negligence which led to the operation going wrong. The law was changed to say that the plaintiff had to have actual knowledge of the injury done. That is an objective test, and not entirely subjective, because it is fixed at the point at which a reasonable person would become aware of the negligence affecting him or her. That does not mean that if someone comes out of hospital feeling ill as a result of an illness, an operation or whatever, a treatment or non-treatment, as the case may be, that the clock is ticking away for two years or for three. It is necessary for the plaintiff to be fixed with a type of knowledge that effectively meant there was a basis for making a claim. We have had a number of cases here. However, in the case of someone who comes out of hospital ill, after an operation, and does not realise that a swab or instrument was left inside or that his or her bowel was sutured in a way that involved other organs, it does not mean that the clock is ticking from that day. It is when the plaintiff discovers that is the case, or ought to have discovered it to be the case, with reasonable care, that the clock starts ticking against him or her.
Let us remember that from 1961 to 2004, a 43-year period, for the great majority of that time the law held that the clock could start ticking against a plaintiff at a time when he or she was unaware that there was a cause of action. Now there is a different situation. The limitation period runs from a different date — a date of discoverability, which is later. That is an important point to take into account.
The second point I made yesterday on Committee Stage, before the Select Committee of Dáil Éireann and I will reiterate it now. As regards actions of this kind there is a deadline of some kind. It is of the nature of a limitation statute that it must be fixed and definite. I could well imagine if it was three years that people would argue it should be five years and there were difficulties which could emerge in the second and third years which would warrant such an extension. It may be argued that any limitation period is, in one sense, arbitrary, but it must be definite.
The third point I made yesterday, which I reiterate today, is that many actions are a combination of medical negligence and personal injuries. I refer, for example, to a person who is run over by a bus and then sues not only the bus company but also the doctor who treated him or her. Such people claim that they have a shortened leg, or whatever, as a result of a combination of both events.
That is definitely my amendment then.
They argue that the doctor treated the case in a negligent manner. It would be wrong if a simple car crash which does not lead to a medical negligence case had a different period of limitation to a car crash which is complicated by the additional question of whether medical negligence was involved. In such circumstances, I do not see how it would be correct to have a different period of limitation.
What limitation period should apply in the case of a person who makes a joint claim against a motorist and a doctor, arising from the manner in which a set of injuries was inflicted and treated? Should one be able to make a claim against the motorist outside the two-year period because one has also made a claim for medical negligence against the doctor for the manner in which one's injury was treated in hospital?
Should the period in which the motorist is open to a claim be extended from two to three years because the doctor ill-treated the victim of the motorist's negligence? Is that a sensible way in which to proceed? I do not think it is. I do not think it is a good idea to have such a twilight zone whereby one has an additional year in which to make a personal injuries claim if one includes medical negligence in the claim.
An alternative view of the law is that one should commence two separate sets of proceedings arising from the same injury — against the motorist within two years and against the doctor within three years. I do not think that is a good way to construct our law. There should be a common period. The only issue should be whether we should provide for two or three years in which claims can be made. I accepted amendments in the Seanad based on the submissions that were made by Senators on the propriety of a two-year or three-year period. I believe that two years is the apt period for this purpose.
I wish to discuss the propositions which will involve a fundamental change in the civil liability law when we introduce the discoverability test. The test applies particularly to medical negligence claims. One knows when one has been run down, but one may not know that one has been badly or negligently treated until somebody tells one how the way in which one was treated departs from ordinary standards of care.
Quite apart from such considerations, one also has to bear in mind another aspect of civil liability law. Subject to the ordinary law of delay, a person who is acting under a disability, particularly a person aged 18 or less, has far greater latitude in when he or she can bring a claim. Similarly, victims of sexual violence and abuse are entitled to an extension of the limitation period, by reference to an inability to commence proceedings due to psychological or emotional trauma resulting from the injury itself. Such people are given additional time.
A great deal of statutory changes have been made to our law, many of which are pro-plaintiff. In this context, the balance has been struck rightly. As a matter of principle, it is generally right to keep the same period for medical negligence cases and personal injuries cases. We should retain a single period for both types of personal injury. It is true that medical negligence is more difficult to tee up and that it is frequently discovered later than industrial accidents, car crashes or cases of a person falling down the stairs. It is blindingly obvious to the plaintiff in most such cases that he or she has suffered injuries and that liability may lie with somebody else who acted negligently. As the discoverability issue looms large in all of this, it is appropriate to have one statutory period for both types of action.
Although medical negligence cases are serious, they cut both ways. Defensive medicine, which is practised because of people's increasing propensity to make claims of negligence against doctors, is not an unalloyed positive feature in the practice of medicine. Doctors should be careful and should comply with proper medical standards. Practitioners of defensive medicine refuse to do the common sense thing because they feel there is a risk that they may be sued afterwards. It is a serious enough matter. During the debate on the Bill in the Seanad, Senator Henry agreed with me that it is by no means pleasant for doctors to have a long period of limitation hanging over them after initial letters are sent.
It has been correctly suggested in this House that it is sometimes difficult to identify precisely a doctor who was involved in a complex series of medical steps and who may or may not have been guilty of negligence. The emergence of enterprise liability as it is now being operated means, in effect, that hospitals are taking responsibility for all the treatment afforded to those receiving care from them. The difficulty mentioned by Deputies — ascertaining precisely which intern performed a medical function and whether he or she has emigrated since then — is receding as a result. It is not as significant as it used to be because an enterprise liability approach is being taken to defending such claims.
Although I have considered the arguments made in the Seanad, the Dáil and the committee, I have not changed my opinion. As a matter of principle, the same period should be provided for all personal injuries actions, regardless of whether they are medical negligence cases. If that were not the case, the amendments that have been tabled today would need to be radically altered to provide for the limitation period that would apply to mixed claims. That would create serious anomalies in itself. The balance that was struck when I accepted Senator Terry's amendment, which took medical negligence cases into account and was based on the argument I have made, is the correct balance. If I may say so, the approach taken in the Seanad was correct. This House should abide by the wisdom of the reflective Senators who wisely chose to table the amendment in question.
It is not long since the Minister believed that one year would be the proper period for making claims. Such a period was originally provided for in the legislation. Perhaps we are not as reflective as the Senators mentioned by the Minister and cannot, therefore, persuade him to accept that a period of three years should be provided for.
If we keep going, we will get to five years.
I have not heard anyone on this side of the House making the case for a period of five years. Three years would be reasonable. If a solicitor is unable to put together a case within three years, he or she must be trying to argue a complex and substantial case. One need only examine the Neary and Army deafness cases to appreciate that it takes many years to put cases together, especially if a number of hospitals and doctors are involved. People do not set out to seek compensation. They try to find out what went wrong. It is often only when they come up against an obstacle or hospitals which delay the release of reports that they get frustrated, decide not to accept that and take a case against the hospital or doctor involved. Now that hospitals are covered by enterprise liability, doctors should not practise defensive medicine because the hospital is giving them full cover to practice medicine properly. Doctors who avoid taking proper decisions leave hospitals open to medical negligence claims because they did not take the correct procedure at the time.
The aspect I raised concerned the Lord Woolf reforms in the United Kingdom which provide specific rules for courts to deal with medical negligence cases. It is a module of civil procedure rules designed to deal specifically with medical negligence claims. Given the similarities between our two judicial codes, why can we not introduce a similar module in the Irish context? The Minister cited the cases involving car accidents and so on, but in the majority of cases medical negligence claims can be set to one side and dealt with separately.
The Minister admits that medical negligence claims are more difficult to tee up, to use his own expression. The onus is on him to justify reducing the time limit for medical negligence claims from its current limit of three years. The Minister has made a case for a reduction by one year in respect of general personal injuries claims. I felt, having discussed it with my colleague, Senator Terry, when she tabled amendment in the Seanad, that two years was a reasonable compromise and that a case had been made to reduce it to what I thought was a fair time limit of two years. The Minister has not justified reducing the time limit for medical negligence claims and the onus is on him in that regard.
The date of knowledge provision will not add any significant time to the limitation period as far as such claims are concerned. In general, the complexities do not arise from the date of knowledge. That can be the case on occasions but they arise from the situation I outlined earlier on obtaining the data, reports and so on. I accept there must be a time limit on medical negligence claims but if the onus has not been discharged for reducing it, we should leave it as it is.
The Minister made a point about mixed claims, and he is well able to argue a point. The same issue arises in respect of the Personal Injuries Assessment Board. The distinction was drawn between the bus company and the doctor. The two year limit applies to the bus company and the three years applies to the doctor. I do not see that as a problem.
The Minister said it is not pleasant for doctors to have such claims hanging over them. I accept that. It is not pleasant for anybody, particularly someone in a professional position who is rendering services, to have such claims hanging over them. As to whether that will lead to defensive medicine or that the reduction in the time limit will make any difference, I do not believe so because that case has not been proved.
The core point is that these claims fall into a separate category. The case for a reduction in respect of personal injury claims generally has been well made and we have accepted that. The case for a reduction in the time limit for medical negligence claims has not been made. On that basis, the current three-year time limit should stand and the amendment should be accepted by the Minister.
I wonder if we are approaching some of these issues in the right way. I recently came across a newspaper report on a "Prime Time" programme broadcast by RTE in February entitled Bad Medicine in which it was suggested that 14,000 people were injured or killed in Irish hospitals by medical error but that only about 4% of these incidences resulted in claims. The programme's conclusion was that, with less time, there would be even fewer claims. That is an incredible statistic highlighted by the RTE "Prime Time" programme. Obviously a huge number of medical negligence issues never reach the courts and are not resolved one way or another, as well as the other personal injuries issues that are not resolved. We are probably only seeing the tip of the iceberg in many cases because it is a difficult matter to gather evidence, get proof and argue the case.
It should be remembered that one must be specific in a personal injuries summons. One has to give full particulars of all items of special damage, the wrongful acts of the defendant, the circumstances of the wrong and each incidence of negligence. All of those must be included in the particulars and one must be quite sharp and conclusive with the information one has and have the case substantially put together, if not comprehensively, by the time the personal injuries summons is issued.
I wish to quote from the Law Society of Ireland's summing up of its argument. It states: "A reduction in the limitation period to two years, as proposed by the Minister, will result in defendants arguing that cases are statute-barred in most, if not all, medical negligence cases." That is an extraordinary conclusion. It further states:
As a consequence, the litigation will be considerably prolonged and legal costs will be greatly increased. There will be trials within a trial involving exceptionally complex legal arguments under section 3 of 1991 Act centering around the concept of "date of knowledge" i.e. when did the patient know or ought to have known or had a real suspicion that he/she was injured as a result of the negligence of his/her doctor? This question will necessarily involve enquiries into what the patient could have learned had he/she had the benefit of expert legal and medical advice. Precisely when was it reasonable for the patient to seek such advice? When ought the patient have realised that his/her illness/injuries were not the result of natural illness that brought him/her to the doctor in the first place but rather were the result of improper treatment etc?
This is a very complex area which is obviously catastrophic for the patient. If we leave the time limit as tight as the Minister proposes, the legal arguments between the defendants, that is, the insurance companies, and the citizen who is complaining and looking for relief will probably be the end result.
I have said everything I have to say.
A net point is being made here.
If we proceed with a two-year time limit as opposed to the existing three-year limit, there will be many more precautionary claims from solicitors who have been contacted by individuals who believe they have been wronged. To ensure they remain within the Statute of Limitations while they do their research, access doctors' reports and so on, they should encourage their clients to proceed with claims.
An increase in claims will lead to an increase in hospital costs because hospitals will have to defend themselves. I agree that many claims will fall and be withdrawn. However, many will be initiated with the available material the solicitor has rather than waiting the extra time to come up with the full facts and medical reports. The proposed timeframe is reasonable considering medical claims are highly complex and detailed and dependent on doctors' opinions and reports.
Another factor depends on the patient's recovery. Some illnesses may fade with time, making a claimant more willing to withdraw a claim. As the saying goes, time is a great healer. In this instance, a solicitor on meeting a client will immediately initiate a precautionary claim. The judgment in the High Court case of Reidy v. National Maternity Hospital stated: “It is irresponsible and an abuse of the process of the court to launch a professional negligence action against institutions such as hospitals and professional personnel without first ascertaining that there are reasonable grounds for so doing.”
That judgment and the subsequent Supreme Court judgment in the Cooke v. Cronin and Neary case would prevent a solicitor from protecting his or her client’s interests, even if the full documentation was not available. Three years is a reasonable time in which to expect a solicitor to receive all papers from doctors and hospitals, who sometimes can purposefully delay their release. The three year period would also allow for proper contemplation of the case. By abandoning the three year proposal, the court system will be overloaded and it will cost hospitals and medical practitioners more money in the long run.
The case seems unacceptable to the Minister but as he has the vote——
The Deputy has already used up his entitlement to speak.
I was suggesting that we move on.
I understand that Deputy Ó Snodaigh proposed the amendment.
It is also my amendment. We should move on.
We have no option but to move on.
The Minister has the vote to defeat the amendment. If he does not have the wit to accept our logic, a voice vote will be appropriate and we can move on to the other amendments.
Question, "That the words and figures proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 4:
In page 8, between lines 35 and 36, to insert the following:
"(2) The amendment effected by this section shall not apply to actions for personal injuries arising from medical negligence or other actions falling outside the jurisdiction of the Personal Injuries Assessment Board, or to actions for personal injuries which are so serious as significantly to impair the plaintiff's capacity to institute proceedings within 2 years from the date of the incident concerned.".
Amendment put and declared lost.
I move amendment No. 5:
In page 8, line 38, to delete "2" and substitute "3".
As the process will be streamlined, this amendment is an extension of the last one. I propose that to get the process up and running, the period for an initial letter of claim should be raised from two months to three months. The claimant is expected not to make an invalid or non-bona fide claim but a substantial one. Two months is extremely short and can be unrealistic in the majority of cases, considering the complexity of certain personal injury claims, the difficulty in getting files and knowing for sure that a personal injury can be acted on. While an initial letter of claim is not the same as a personal injury summons, a three-month period would seem to be realistic.
One danger of the two-month timeframe is that when a plaintiff is recovering from his or her injuries, he or she might not be in a position to lodge a statement of claim. It seems reasonable to give a more realistic period for this process. Another danger is of a plaintiff simply panicking and heading straight to a lawyer to get a statement of claim in anyway. Whereas it cannot be done properly in a two-month period, a three-month period would give a more reasoned time for issuing an initial letter of claim in a significant and measured fashion. As the rest of the procedures are to be speeded up and the personal injury summons will contain all the details, the initial claim period should be reasonable so a claimant can properly and realistically initiate a claim.
On a point of order, the text I am using omits an amendment to the Bill made on Committee Stage yesterday. The phrase "as soon as practical thereafter" seems to have fallen through the floorboards.
It is in the updated version of the Bill.
The explanation lies in the proof version I am using.
On Committee Stage yesterday, an amendment was tabled to provide for two months, or as soon as practicable thereafter, which improved the Bill and I was glad it was acceptable. The two basic principles to this amendment are whether there should be a requirement for a letter of claim and the period in which it should be served. A letter of claim is a good idea as inferences could be drawn if one is not issued. One complaint I often receive from employers and the insurance industry is that as they are often hit by an out-of-the-blue claim ages after the incident, they have no opportunity of properly investigating the claim.
What period should be prescribed for such letters of claim? Two months is rather tight. The Bill is improved by the amendment where the court will be allowed to say that two months was not practicable in cases where the claimant, not realising the seriousness of the injury, had not seen any great urgency in going to a solicitor. That improves the situation but it could be further improved by the three month period. It is not a do or die situation but the two month period is a little tight. Accordingly I support the amendment.
I support my two colleagues on this matter. The situation can be further improved by means of the three month period. The fact that the Minister had the wrong copy of the Bill shows the rushed nature of this debate. It is a pity it has been rushed and that nearly half the amendments on Report Stage come from the Minister. That indicates haste, and such situations will continue if the Minister continues to redraft Bills on Committee Stage and redraft them again on Report Stage. Of the 55 or 56 amendments we have today, 26 are tabled by the Minister. That indicates he is trying to correct mistakes. They may be technical but they should have been spotted before the Bill was presented on Committee Stage.
I disagree with that proposition. The fact that I have tabled amendments shows that I am listening to what is going on and taking on board the points made. If I suggested no changes, I could imagine an equally strong speech being made to suggest that while we go through days of debate, the Minister never tables any amendments. Regarding the wrong Bill, I was holding a proof in my hand rather than the finished item.
The amendment I accepted yesterday and which we drew up on Committee Stage changes the tone of this section. It suggests that if someone goes to a solicitor outside the period in question, the duty on the solicitor to ensure that the plaintiff complies with the requirement to give early notice to the defendant of the likelihood of a claim is extended to whatever time is practicable. That is a reasonable amendment and in those circumstances it would not send the right signal to extend it from two months to three months.
Question, "That the figure proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
I move amendment No. 6:
In page 9, lines 1 to 6, to delete all words from and including "require—" in line 1 down to and including "appropriate" in line 6 and substitute the following:
"deduct from any costs payable to the plaintiff such amount, if any, of additional costs as in the opinion of the court has been incurred by the late service or non-service of a letter of claim".
This amendment is tabled to make the deterrent penalty more realistic in terms of cost. It is quite unrealistic to suggest that a plaintiff should not be entitled to any costs simply because he or she failed to issue a letter of claim on time or at all. It would be a much more realistic provision that the person should be at risk of losing any additional amounts of costs that were incurred because of the late service of the letter of claim.
The Minster is presenting it as a black or white matter but it would be better if there were an assessment of the amount that the plaintiff would be entitled to and that this assessment would not be the entire cost or would not be inferred as such in all cases, but that it would be assessed with regard to what the additional costs or losses might be. That would be more realistic.
Let us be clear about what is required here. If somebody without reasonable cause fails to deliver this letter within two months, or as soon as reasonably practicable thereafter, the court can, where the interests of justice so require — a high hurdle — either make no order as to costs for the plaintiff or deduct some amount from the plaintiff's costs. I do not see how this is a black and white situation. It means that there would have to be an unreasonable failure to carry it out not merely within the two month period but within such a longer period as is reasonably practicable. The court would then have to conclude that the interests of justice required it to penalise the plaintiff in costs, after which the court would be in a position to choose either to make no order as to costs in favour of the plaintiff or, alternatively, to take away some amount of the plaintiff's costs.
I do not see how this is black or white, or draconian. First, the court has to be compelled to the view that the interests of justice require it to make deduction of costs. If it is not so convinced, the measure does not come into effect. Second, the court can do anything it considers appropriate, from taking 1 cent off the plaintiff's costs to disallowing the whole of the plaintiff's cost.
This is not a black or white arrangement. It gives the court wide latitude. I find it difficult to imagine circumstances where the interests of justice would require the total disallowance of the plaintiff's costs. However, there could be a case where a plaintiff's solicitor wilfully decided to inconvenience the defendant or allow the defendant, for example, to destroy or make unavailable evidence, or circumstances where there was sheer badmindedness and a lack of professionalism. In such circumstances, the Bill states that the court could disallow all of the plaintiff's costs.
However, the plaintiff's decree for damages would be unaffected by this. It would apply only where the interests of justice required that the plaintiff's costs be reduced or disallowed. It is not a black or white situation and I am not arguing for such. I am saying a full spectrum is available, from doing nothing to disallowing costs in their entirety. However, this spectrum is only available to a court which decides that the interests of justice require some action of that kind to be taken and then only in certain circumstances where there was a departure from a fairly liberally phrased duty without reasonable cause. If I water this down any further, it will cease to mean anything.
I do not understand the Minister's logic. My amendment suggests that the court would "deduct from any costs payable to the plaintiff such amount, if any, of additional costs as in the opinion of the court has been incurred by the late service or non-service of a letter of claim". People have a period of two months in which to lodge a claim. It is only when that period has been exceeded and the claim has not arrived that the meter should begin to run.
That is not the real issue. To take an example, a solicitor may be acting for a plaintiff in a case and may allow one year and 11 months before notifying the defendant of a pending claim, without any reasonable cause. If, during that period, the defendant does not, for example, get an engineer's report or changes a factory machine or the layout of a premises or otherwise, and the solicitor for the plaintiff allows all this to happen, the court can award the defendant damages. This is because, while the court agrees the defendant was injured as claimed, it was the solicitor, through his or her misbehaviour, who put the defendant at a total disadvantage in fighting the claim. By failing to give the defendant any notice in time, the solicitor allowed the defendant effectively to alter the premises, discard evidence or prejudice himself or herself in a number of ways.
This is not just a matter of what extra cost the defendant was put to but that the plaintiff should be punished for acting in a way that puts the defendant at an unfair disadvantage by reason of the plaintiff's failure to give adequate notice in advance. The amendment is predicated on the notion that extra costs are being disallowed by reason of delay, which is not the case. It is that the defendant's capacity to fight the case fairly could be prejudiced by the plaintiff simply giving no notice until a considerable time had elapsed.
The present formulation of the Bill is preferable. If we are talking about the interests of justice and trying to weigh the balance between claimants and defendants, in this case the interests of justice require some form of penalty for plaintiffs who unreasonably do not carry out their legal requirements. The Bill is better phrased as it is.
The previous amendment I put forward proposed to extend the period from two to three months, which would be a reasonable period. The Minister now comes the heavy on somebody who does not serve notice within that period and says that the court may decide to give that person nothing in regard to costs. I believe this should be proportionate to the degree a plaintiff could argue a case. Arguments could be put forward in regard to a case and, if the meter does start running when the two months have elapsed, this would be the appropriate time because the deterrent is very much a sledgehammer in this instance. However, I will not press the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 7:
In page 9, between lines 12 and 13, to insert the following:
"(3) Where a plaintiff or proposed plaintiff serves a letter of claim on a defendant or proposed defendant, the defendant or proposed defendant shall, not later than two months after service of the letter of claim, serve a letter of response setting out whether the defendant or proposed defendant accepts that a wrong has been committed by him or her.".
We debated this amendment at some length on Committee Stage. As I pointed out, the thrust of the amendment is to some extent to redress the imbalance in the Bill against the plaintiff. The presumption in the Bill is that the plaintiff is at fault in not following procedures and may well be questionable in regard to his or her bona fides in the context of the compensation culture. If we are to impose strictures on the plaintiff to produce documentation and a letter of claim within two months, we should have some imposition on the defendant to respond.
The Minister responds to this by saying we cannot do this to the defendant because the defendant cannot know how he or she will react to the case and may need more time to assess it. However, are we really streamlining the process if the letter of claim has set out the content of the claim, yet no response is required from the defendant and there is no time limit for the defendant to produce his or her response? Will the defendant accept that there is a case to answer or will he or she not have to respond at any stage until the case comes to court? If we want to streamline the procedure, we should impose some parameters on both sides — plaintiff and defendant — regarding each other, and, within two months, require some response from the defendant as to whether he or she will contest the case. Balance requires this approach.
This is false symmetry. A defendant is not in a position to make such decisions. The purpose of the Bill is not to further disadvantage defendants in proceedings but to make the conduct of personal injuries actions fairer and more reasonable and to exclude the compensation culture. This would simply foot trip defendants in an unreasonable way.
The case was well made by Deputy Costello on Committee Stage yesterday and I listened carefully to his argument. On balance, however, it probably would not be fair to require defendants to admit within two months that they accept liability. The case could be complex and the defendants might have to get engineers' and other reports before they could come to a conclusion.
On balance, it probably would not lead to a more expeditious delivery of justice and it could conceivably lead to injustice to the defendants. Even though insurance companies can be seen as easy targets, they have a job to do in running a business. It should also be borne in mind that some of these claims can be against people who have no insurance. We must be careful to get the balance right between both sides. In this case, the amendment would tip the balance unfairly against the defendants.
The length of time would not concern me unduly but it is unfair to impose an onerous requirement on the plaintiff and have no corresponding requirement, good, bad or indifferent, on the defendant. That tilts the balance in favour of the defendant or, effectively, the insurance industry. The defendant is not required to respond in a meaningful fashion within any time limit whereas the plaintiff is required to have his or her act together in a specific form very quickly.
Amendment put and declared lost.
Amendments Nos. 8 and 9 are related and may be discussed together.
I move amendment No. 8:
In page 9, to delete lines 35 to 39 and substitute the following:
"(4) Nothing in this Act shall be construed as limiting or reducing the power of an authority, having (for the time being) power to make rules regulating the practice and procedure of a court, to—
(a) make such rules in relation to personal injuries actions provided such rules do not derogate from, and are not inconsistent with, any provision of this Act, or
(b) make such rules in relation to proceedings or actions other than personal injuries actions.
(5) In subsections (1) and (2) a reference to the courts or the court includes a reference to the Master of the High Court and a county registrar.”.
As we are making specific provision for personal injuries actions, this amendment makes it clear that nothing in the Bill should be interpreted as limiting or reducing the power of rule making authorities to make rules relating to, first, personal injuries actions which are not inconsistent with the provisions of the legislation or, second, proceedings other than personal injuries actions. The proposed subsection (5) makes it clear that the function of the courts referred to in subsections (1) and (2) also applies to the Master of the High Court and a county registrar in the Circuit Court.
Under the new provision in this Bill a personal injuries summons will contain all the information that is currently contained in the statement of claim. The Bill, therefore, should make it clear that a statement of claim is unnecessary. A statement of claim is necessary at present in the High Court but since the personal injuries statement will contain all the specifics, there is no need to provide the statement of claim that would normally be prescribed. We are introducing new procedures.
The Minister's amendment appears to be technical and, presumably, the result of advice from officials. I see no grounds for opposing it. Deputy Costello's proposal provides for the delivery of a defence within 21 days. That is the normal procedure, as I understand it, and if they do not comply, there is usually an extension of time given by the court or a motion for judgment against them. It is a procedural issue.
I oppose Deputy Costello's amendment. My amendment is a technical amendment.
Amendment agreed to.
I move amendment No. 9:
In page 10, between lines 17 and 18, to insert the following:
"(3) Rules of court regarding proceedings in the High Court shall provide that a Statement of Claim shall not be required in a personal injuries action and that a defendant shall join issue on a personal injuries summons by delivering a defence thereto within twenty one days from the service of the personal injuries summons.".
Amendment put and declared lost.
I move amendment No. 10:
In page 10, line 34, after "with" to insert "the following information so far as it is reasonably available to him or her".
This relates to the statement of information that would be provided to the defendant in a personal injuries action. I am introducing the phrase: "the following information so far as it is reasonably available to him or her". It would be useful to include that in the preamble to the list of specifics mentioned in the section.
I do not accept the amendment.
Will the Minister elaborate?
I will elaborate, although I did so on Committee Stage yesterday. It is not necessary to have this section. There is power to make rules of court, as we have just confirmed, and these things are already dealt with in Rules of Court. There is no need to have a statutory provision to the same effect. No purpose is served by making this a statutory matter.
We are discussing amendment No. 10.
I am sorry. I responded to that already, too. I do not believe one can be obliged to give information one does not have.
Deputy Costello's amendment is reasonable. It specifically provides that the plaintiff should provide information but only in so far as it is reasonably available to him whereas the present formulation imposes a requirement on the plaintiff to provide information without any such qualification. The Minister could consider the amendment reasonable, at least. It is not hugely important but it is reasonable.
The amendment relates to seeking the information that is specified in so far as it is reasonably available to the plaintiff. When one considers the amount of information that is required, one can see how difficult it is to have that information in its entirety. Section 11 provides that:
...the plaintiff shall provide the defendant with—
(a) particulars of any personal injuries action brought by the plaintiff in which a court made an award of damages,
(b) particulars of any personal injuries action brought by the plaintiff which was withdrawn or settled,
(c) particulars of any injuries sustained or treatment administered to the plaintiff that would have a bearing on the personal injuries to which the personal injuries action relates, and
(d) the name of any persons from whom the plaintiff received such medical treatment.
What is the situation if some information from the prescribed list is omitted? How is it dealt with? It is not just a request for further information but a demand for it. If there is not some degree of qualification, such as, that it be reasonably available or reasonable for the person to have and supply it, an injustice could be done in the case.
I draw the Deputy's attention to the sanctions available under subsection (3). Where a plaintiff fails to comply with a request under subsection (1), the court can direct that the personal injuries action can be effectively stayed until the plaintiff complies or, where it considers that the interests of justice so require, dismiss the plaintiff's action. In addition, the court shall take into account such failure when making an order as to the payment of the costs of the action. No negative consequences would apply to somebody who could argue that the information sought was not reasonably available to them. I do not believe a court could penalise somebody in those circumstances.
Should the legislation not reflect that? The end result is that it would be a legal argument and the law would be quoted but there is no qualification within the law. Such qualifications are normally included as far as is practicable and reasonable. Where there is compulsion to produce information, some of which might not be reasonably available to the person, there should be a qualification in the law which would give direction to the court.
That would water down the effect of the legislation. Clear obligations are being imposed on the plaintiff. However, they are subject to the implication that nobody can be asked to do what would be impossible. The purpose of this is to make it clear to plaintiffs that they are expected as a matter of course to give particulars of previous actions for personal injuries which were withdrawn or settled, particulars of injuries which might have a bearing on the personal injuries to which the case relates, and the names of people from whom they received treatment. If I were to say this would not apply if the information were not reasonably available, people would argue about what the term "reasonably available" means. I would much prefer to leave this in its present form.
Amendment put and declared lost.
I move amendment No. 11:
In page 11, between lines 1 and 2, to insert the following:
"(2) Upon the request of a plaintiff in a personal injuries action, the defendant shall provide the plaintiff with full particulars of any matter alleged in the defence of the defendant and such other information as may reasonably be requested by the plaintiff within the knowledge of the defendant including full particulars of the plaintiff's earnings where such earnings were paid by the defendant, during such period as may be specified by the plaintiff.".
We debated this previously. Its thrust is the same as that of my previous amendments which is that there is an imbalance between what is required of the plaintiff and what is required of the defendant. We discussed the particulars a plaintiff must deliver in a personal injuries action upon request by a defendant. It appears that one party to an action is entitled to everything, all the information, the timescale and the procedures, but there is no corresponding onus on the defendant to provide the plaintiff with anything. The defendant is often an employer against whom an employee has taken an action for negligence, and there might well be information which would be of value to the plaintiff if it could be obtained from the defendant. Such information might relate to the defendant's behaviour, earnings, payments and so on. There is no onus on the defendant to produce such information. This amendment seeks to provide that upon the request of a plaintiff in a personal injuries action the defendant shall provide the plaintiff with full particulars.
It seems the framers of the legislation did not envisage imposing responsibilities on defendants but sought to deal with the problem of fraud. The assumption is that the plaintiff is always a fraudster and the defendant, generally the insurance company, is the good agent. That features very strongly in this legislation and permeates it through to the end. The industry is very well served by this legislation. However, I am not so sure that the ordinary individual who has a case, whether for medical negligence or some other type of negligence, is getting a fair crack of the whip.
My approach to this Bill has been to support any reasonable case for change but to ensure at all times that we keep a fair balance between plaintiffs and defendants. In opposing the "compo" culture it is possible to allow the pendulum to swing too far. It might be unfair to plaintiffs to have provisions in legislation which presuppose they are guilty of fraud before they even make a claim. In my experience most claimants are fair and reasonable and seek only their legal entitlement.
This section introduces a new provision whereby the defendant can go on a trawling expedition and seek further information about other claims to effectively isolate somebody who is a professional claimant. That is not a bad idea and I support it. We do not want people making fraudulent claims in our courts.
On the other hand, however, the defendant might be a rogue builder who has had many claims against him because he puts up crippled scaffolding and does not comply with procedures and regulations. A person who may have been badly injured in the course of his employment may be at a disadvantage in proving his case. The record of that employer in terms of breaches of health and safety regulations, breaches of statute in other respects, or regarding previous claims might be relevant in trying to secure a fair and just outcome. An action might involve a labourer with no great resources or education against a fairly substantial builder or employer.
The kind of information to which Deputy Costello referred could be relevant to the claim. The proposed amendment refers to "such other information as may be reasonably requested by the plaintiff". If it is reasonable that the defendant should seek the claims record of a plaintiff with a view to proving that this is a professional claimant who must be dealt with with great circumspection, there is a case for providing that a defendant should provide information to a plaintiff where there is a reasonable suspicion that the defendant has a history of non-compliance with health and safety standards and has had claims brought against him for good reason.
I understand such questions are frequently put and are dealt with under the existing rules of court. I do not, therefore, believe the amendment is necessary. I am trying to deal with areas where there is controversy regarding what information should or should not be made available. Frequently plaintiffs bridle at being asked to give their previous claims record, details of their previous medical condition, or of the people who previously treated them, and the defendant is left wondering whether this is the first time they sought medical attention for their condition, whether this is the first instance of back pain, whether they were treated for back pain 20 or 30 years previously and whether they suffer from chronic back pain. There is no need to provide in this Bill for procedures which are currently dealt with under the rules of court. I am trying to introduce only new material that I believe necessary to redress the current imbalance between parties' rights. If a solicitor for the plaintiff wrote to the defendant asking for details of earnings for the past six months and the defendant refused, that person would be very seriously penalised regarding costs.
If the Minister is saying that the effects of my amendment are already included in the rules of court, why is he so specific with the plaintiff's duties? The plaintiff has very specific duties regarding the defendant that are laid out in the legislation. Surely under the rules of court one can similarly ask questions of the plaintiff without that being inserted in the legislation. It has been inserted in the legislation for a specific purpose. That the responsibilities of the defendant are left out of the legislation must equally be for a specific purpose. I have no problem with any of the obligations.
The provision states that on the request of a defendant, the plaintiff shall provide the defendant with documents. That is not a request but an obligation. It would cover any past records or history of claims. There might very well be documents regarding the Revenue or the Minister for Social and Family Affairs which are very relevant to what the plaintiff might want to know about the defendant and his or her activities. No matter what way we look at it, it seems that very little attempt has been made to hold the defendant accountable under the law in any similar or corresponding way and that is a pity. It could easily be incorporated in the Bill.
I am trying to amplify the rights of parties who already largely have the rights to which Deputy Costello refers. However, I have seen people sending out letters to the plaintiff asking whether he or she has been involved in previous road traffic accidents or has any cognate injuries, and receiving replies telling them that it is none of their business. That is not the right way to deal with claims. It is arguable——
I agree with the Minister.
All one is currently entitled to is particulars regarding the proceedings before one. The plaintiff can say that someone ran him or her down leading to injury. If one asks whether he or she has ever been run down before on that road or fallen over the pothole in question, perhaps for the tenth time, the reply from the defendant is that it is not relevant to the claim and that the issue is whether he or she did or did not trip over the pothole. One is not entitled to particulars about other cases or events. The purpose of this section is that defendants are entitled to inquire into related events. At the moment, many plaintiffs simply refuse to answer such questions, saying that it is not relevant to their claim whether they made a similar one three years before. One can wonder about it and hire a detective if one believes that, but the plaintiffs refuse to answer the letter. That is the situation in which we find ourselves.
I am very happy that the plaintiff should provide that information, but will the Minister give us an absolute assurance that, without any change in the legislation, a defendant would have to answer reasonable questions regarding the bad safety record that could be relevant to a plaintiff or other employees?
If, for instance, the allegation is that there is an unsafe system of work, I believe that one would be able to seek particulars and discovery of instances where it had existed before the incident in which one was involved.
Would it have to be the same? What about a generally bad safety record?
A generally bad safety record would not become relevant. For instance, if a CIE bus driver claims that he tripped on the stairs in the bus, it is not relevant to his claim that there are 3,000 or 8,000 claims outstanding against CIE. If we go down that road, we will be opening every case up into a general inquiry into the defendant's character. Bearing in mind the realities of our system of litigation, we must keep a narrow focus. However, it is directly relevant to many cases whether a plaintiff has tripped over potholes before. It is not really relevant for the plaintiff to ask Dublin Corporation how many potholes there are in the city.
A false symmetry is being argued for here. As a plaintiff's solicitor, one can say that the streets of Dublin are in a disgraceful state and write letters to the city council asking it to disclose all the claims made against it right across Dublin in the previous three years by people who fell into potholes. One could say that it looks symmetrical to the right of the defendant to ask how many potholes he or she has fallen into. However, they are not the same issue, and it is a false symmetry to say that the defendant may ask roughly the same kinds of questions of the plaintiff as the plaintiff of the defendant.
The Minister may well have opened a Pandora's box. It might be very relevant to ask how many potholes in the local authority's jurisdiction citizens have fallen into. As the Chair and those of us who have recently been members of such authorities will know, the maintenance of pavements, closing potholes and so on, sometimes leaves much to be desired. If there is a track record in the local authority of very poor maintenance, it could be very relevant to the plaintiff, being contributory negligence. The Minister has imposed no corresponding onus of care on the part of the defendant to justify himself or herself or provide documentation that might well be relevant to the plaintiff. However, the poor plaintiff must disclose all particulars of any past or anything that might be relevant, and that leads to a degree of imbalance in the case. I entirely agree with requesting and demanding those particulars from the plaintiff, but there should also be a corresponding demand elsewhere.
May I make a point?
Very briefly, as every Member has had the required number of interventions.
Perhaps the Minister will clarify what, under the existing rules of court, a plaintiff may require from the defendant by way of information. I accept the point regarding CIE or Bus Éireann that one cannot seek details of 8,000 claims being made against them for the past eight years. However, if someone is injured while working for a builder, the number of other employees who have been injured in similar circumstances over the past five years, perhaps by machinery operated by the builder or because of the type of scaffolding used, particularly if the builder denies liability, could be relevant. If that information is considered relevant, is it currently obtainable by the plaintiff under the existing rules of court? If so, that is a complete answer to this case since there would be no need for the amendment.
This is what goes on every day where people make application for discovery, and the courts are always trying to focus on the issue, saying that one cannot simply ask for everything.
Let us focus on the issue in this case. How is it reasonable to ask CIE to trawl through its claims files to help one's claim? That is decided mainly on applications for particulars or on applications for discovery by the Judiciary. My section covers a slightly different type of question, namely, "has this ever happened to you before?" to which the "get lost" answer is not acceptable.
Amendment put and declared lost.
I move amendment No. 12:
In page 11, line 42, after "alleges" to insert "and full particulars of the acts of the plaintiff constituting any alleged negligence or contributory negligence".
This is an extension of the principle that underpins all these amendments, namely, a reference to section 12(1)(d) which states: “where the defendant alleges that some or all of the personal injuries suffered by the plaintiff were occasioned in whole or in part by the plaintiff’s own acts, the grounds upon which he or she so alleges”. I wish to add “and full particulars of the acts of the plaintiff constituting any alleged negligence or contributory negligence”. It is reasonable that the defendant should give particulars too. The requirements of a defence are considerably more limited in this Bill than the requirements of the personal injuries summons. The least one might expect is that the defence would give the particulars of contributory negligence.
I refer the Minister to page 12, subsection (2)(e) where the reference to a counter-claim calls for “full particulars of each instance of negligence by the plaintiff”. Why can there not be full particulars “where the defendant alleges that some or all of the personal injuries” were caused by the contributory negligence of the plaintiff? All that is required is “the grounds upon which he or she so alleges”. Let us have the full particulars. What is sauce for the goose is sauce for the gander. If the plaintiff must furnish full particulars of any claim he or she makes, why should the defendant not supply full particulars of his or her allegation that the “personal injuries suffered by the plaintiff were occasioned in whole or in part by the plaintiff’s own acts”?
This is the celebrated case of Goose v. Gander. It does not deal with people in like circumstances. In every court case the onus of proof is on the plaintiff. The defendant is entitled to win every case, unless the plaintiff proves as a matter of probability the correctness of the plaintiff’s propositions. The defendant is not obliged to prove anything in general terms in any proceeding. That is the first point of difference.
The second is that if, for instance, one owns a pub with a set of stairs leading to basement toilets and a customer falls on these breaking his or her arm, one can legitimately say in defence that as the stairs are safe the customer's fall was due to his or her negligence. If the stairs were wet the customer should have noticed that, or whatever. In most proceedings, however, the defendant is not in a position to give particulars of how the plaintiff fell down the stairs, or landed on the ground, and cannot be asked to do so. The defendant was probably not there and can only surmise how the plaintiff was injured. If a defendant says that the accident took place as a result of the plaintiff's negligence it is often impractical to ask for all the particulars of the negligence alleged against the plaintiff.
The section revolutionises proceedings from the defendant's point of view because hitherto a defendant had only to deny everything, say there was no accident, no stairs, no injury, no negligence, and that was the defence. The new section 12 provides that defendants must differentiate between the things of which he or she does or does not require proof, instead of saying "I deny everything". That was the old approach to pleadings, as I learned when I entered the Law Library, and it was carried even to the ridiculous extreme of virtually denying that the defendant was a limited liability company. Instead, this new type of pleading requires the defendant to ask what parts in the plaintiff's claim must be proved, for example, that the plaintiff fell down the stairs. If one requires proof that there are stairs in the premises the court may take a strong view of such a pleading.
Section 12(1)(b) states: “the allegations specified, or matters pleaded in the personal injuries summons of which he or she requires proof” and paragraph (c) states: “the grounds upon which the defendant claims that he or she is not liable for any injuries suffered by the plaintiff”. Instead of denying everything the plaintiff says the defendant must deny that he or she was negligent. The defendant may accept the plaintiff fell down the stairs but may deny he or she was negligent in the matter, saying the stairs were perfectly safe, there was nothing inherently wrong with them, or if they were defective, the defect was not the cause of the fall.
Section 12(1)(d) states: “where the defendant alleges that some or all of the personal injuries suffered by the plaintiff were occasioned in whole or in part by the plaintiff’s own acts, the grounds upon which he or she so alleges”. This requires the defendant to explain his or her perception of the plaintiff’s negligence so that eventually he or she will say that the stairs were perfectly safe or the plaintiff was drunk when going down the stairs to the toilet, or whatever. The defendant must set out his or her defence fairly and squarely. This is a major advance. If we go too far and insist that the defendant give particulars of matters about which he or she could have no knowledge we create difficulties because it asks the defendant to do the impossible. The plaintiff should be in a position to provide particulars of the defendant’s negligence, but the defendant is frequently absent from the scene and does not know how the accident happened and cannot give particulars.
The same applies to counter-claims where the obligations are stringent. Subsection (3) obliges the defendant to comply, and the same sanctions for non-compliance with the previous section, to which Deputy Costello referred, apply. Failure to provide information, answer questions or set out a proper case in one's claim or counter-claim can give rise to inferences being drawn against the defendant. This significantly balances the issue. I do not want arguments about how drunk the plaintiff was when he or she fell down the stairs etc., which the defendant cannot answer. He or she does not know whether the plaintiff was mildly drunk or heavily drunk, where the plaintiff got the drink or whether the defendant or some other publican made him or her drunk. This is the type of question which a defendant cannot answer.
Amendment, by leave, withdrawn.
Amendments Nos. 13 and 14 are related and may be taken together.
I move amendment No. 13:
In page 12, to delete lines 36 to 44.
We discussed this issue at some length on Committee Stage. It arises in the context of pleadings and the requirement in the Bill to lodge the pleadings in the relevant court offices after they have been served. This will lead to unjustifiable expense for both parties, plaintiff and defendant. The system in the High Court requires lodgement of proceedings after they are set down for trial, which works perfectly well. There could also be significant administrative difficulties for the court officers in resuming an old procedure whereby pleadings were filed at the same time as they were served on the other side. For that reason, I suggest that we could do without subsections (3), (4) and (5).
Amendment No. 14 relates to section 14, which provides that a verifying affidavit must be lodged in court not later than 21 days after the service of the pleading by the other party. The amendment suggests that the provision be changed to ensure that the affidavit would not have to be filed in the court office within that time. Part of the thinking in this regard is that many of these claims may not necessarily go to trial in the first instance. The requirements in these sections could give rise to a danger that the system will become clogged up with paper. From a purely practical point of view, is it a wise approach and will it cause unnecessary trouble and expense? Given that we are trying to encourage people to use less paper, would it be possible to dispense with the requirements to which I refer? I accept, however, that there may be a need to return to the old system. The Minister indicated on Committee Stage that he would consider this issue overnight.
I indicated that I would consider it overnight. The Deputy is correct in one respect, namely, this is a regression to a filed pleading system. The exchange of pleading system has been the norm. This system is administratively far more convenient from the point of view of the Courts Service and reduces costs to some extent. The other side of the coin, however, is that I do not want a situation to arise where people will exchange false pleadings or make false claims and then depart the stage, abandoning a case or not proceeding with it at a late stage either out of fright or because they might be detected. I also do not want it to be the case that records of such proceedings would disappear into shredders in various solicitors' offices and would no longer be available for later investigation.
I am especially anxious to stop people "trying it on" or "having a go" on the assumption that they can tell a lie and then walk away from it by simply never exchanging pleadings and setting the case down for trial. I want plaintiffs who are fraudulent to know that a precondition to making a claim and proceeding with it to any extent will be that there will be a permanent record of what they said and did. These people should not be in a position to contact their solicitors and merely state, at a late stage, that they have reconsidered the case and that it should be dropped because they believe they may or may not be the subject of investigation by a private detective. I do not want it to be the case that they can get cold feet and walk away and that there would be no permanent trace of what they have done.
A second point of relevance in respect of serial claimants using different solicitors on different occasions against different defendants is that it would be desirable, particularly in view of the register that is provided for later in the Bill, that there would be a permanent record of the proceedings relating to a case. If insurance company A is to be given the right to consult, through its lawyers, a register which indicates whether plaintiff B has claimed against companies C, D or E in the past, it would be useful if the nature of any previous claims would be somewhere preserved on a permanent basis. The insurance company would not, therefore, be obliged to consult various solicitors in an attempt to reconstitute a claim to discover what was involved.
I reflected on this matter overnight and am attracted, from the point of view of administrative convenience, to the arguments Deputy Jim O'Keeffe made. Nonetheless, I am of the opinion that there are two dangers involved. First, the concept of the register of personal injuries would be undermined if one could not at some stage discover the nature of a claim, even if one was not involved in the proceedings. Second, "have a go" type claimants would largely be able to avoid leaving a permanent trace of what they did — which would be available for third parties or the Garda at a later stage, with a view to proving fraudulent behaviour — if documents relating to proceedings could be shredded by the parties after a case was abandoned.
For those reasons, on balance and with some degree of reluctance because I do not like to impose additional responsibilities on the Courts Service, I must adhere to the original plan of campaign. To go a different route would require making a good deal of alternative provision which I do not at this stage have the time to do.
It would be cheaper.
Expense is not everything.
The Minister summed up the position with his final point. This legislation is non-political in nature and we are all trying to obtain the best outcome possible while trying to preserve fair balance between the different parties. In normal circumstances, we would probably come up with a better system than that which is proposed here. I accept that the Minister has given thought to my proposal and that he cannot immediately accept it. However, there is no time to seek an alternative approach. The situation with which we will be presented will be black and white. We are going to lumber the Courts Service with mountains of paper for the sake of achieving what, I accept, is a reasonable objective. One approach would be not to lumber the Courts Service with these files, but then we might not be able to achieve the stated objective. However, there are other ways of proceeding.
Would it not make sense, for example, to deal with verifying affidavits in a different way. The Minister referred to documents in solicitors' offices being shredded when proceedings are finished. The latter is not done immediately and takes a considerable amount of time. I do not believe that defendants would be rushing to shred documents, particularly if they were representing an insurance company which would be seeking a full report.
What the Minister is doing is, in procedural terms, very cumbersome and, as he stated, it is a regression. I do not honestly believe it is proper to lumber the Courts Service with responsibility for filing and storing all the pleadings that will be made from the time the legislation comes into operation. The latter will be difficult, troublesome, cumbersome and expensive. Perhaps this highlights the difference between barristers and solicitors but when I was in practice in a legal office, I witnessed the cost and expense involved in employing staff and the importance of filing and storing documents. However, there are major costs involved in such filing and storing and we are now going to lumber a State service — which we are asking to become more efficient and cost-effective — with a system that dates from the last century.
I do not intend to press the amendments. However, I am of the opinion that the Minister is taking the wrong course of action. There are better ways of achieving his objective without imposing this burden on the Courts Service or imposing unnecessary costs on the different parties involved in proceedings. At this stage, however, there is no time to devise a better system.
Is there any good reason for not adhering to the current procedure, particularly if there is a real danger of having major——
As it is now 7 p.m., we must proceed to Private Members' business.
Debate adjourned.