Seanad Éireann díospóireacht -
Friday, 8 May 1998

Vol. 155 No. 11

Civil Liability (Assessment of Hearing Injury) Bill, 1998: Committee and Remaining Stages. Section 1 agreed to.

SECTION 2.

Mr. Costello

I move amendment No. 1:

In page 3, lines 32 and 33, to delete "whether commenced before or" and substitute "commenced".

I understand the Minister's anxiety for the legislation to be retrospective and apply to all cases in the courts, as there are thousands of cases at issue. However, by making it retrospective the Minister would be seen to infringe on cases that have gone through part of the judicial process and might be seen to be interfering in midstream with cases already in progress. The legislation would obviously affect future cases that have not yet gone before the courts.

In a sense we are all defendants in these cases and we are all responsible for how the taxpayers' money is spent, as the Minister said. However, this legislation will alter the present process, and introducing a retrospective element seems dangerous when cases are at varying stages within the present process. The Bill could be declared unconstitutional on this point, and I seek clarification from the Minister on whether he has received advice from the Attorney General on the matter. Is the Minister satisfied that the precedent he seems to be establishing is constitutionally and legally correct?

Minister for Defence (Mr. M. Smith)

Section 2 makes the legislation apply to all proceedings before the courts at present, whether those proceedings commence before or after the enactment of the Act. The purpose of the section is to ensure that the provisions of the Act, namely judicial notice to be taken of the Green Book and for the courts to have regard to the handicap assessment formula for hearing loss and tinnitus, apply to all cases at present awaiting hearing. There are 10,500 cases before the courts. If the Oireachtas is of the view that the Green Book report should be taken into account by the courts in assessing hearing handicap for future cases, it is only fair and equitable that such provision apply to current cases also.

I am aware that some misgivings have been expressed about the possible unconstitutionality of asking the courts to take judicial notice of the Green Book report and to have regard to the formula therein in a retrospective manner. However, the effect of the provisions merely require the courts to treat the Green Book as evidence and to have regard to its handicap assessment formula. Under these provisions the Green Book will acquire the status of proved evidence in court. However, the weight to be attached to this evidence will be a matter for the court to decide. The court will remain free to come up with whatever conclusion it sees fit. Since there is no interference with the adjudicative process of the courts, I am advised that a constitutional difficulty in respect of the separation of powers and judicial independence does not arise. All legislation is subject to strict scrutiny by the Attorney General, and on this matter his advice is as I have outlined.

I have wanted to create a precedent all my life, and I am not hidebound by tradition or the past. If each generation felt that it could not do something because there was no precedent, new ground would never be covered. It is hoped this new precedent will work but it is not obligatory on the courts.

Regarding the application of this legislation to new cases alone, let us say that 95 per cent of all cases are before the courts. If the new criteria were only applied to the remaining 5 per cent, that would be quite inequitable. That would also make the Bill redundant because the cases before the courts will create the norm for what will follow. Any intervention in providing a system which would help to get a better outcome would be null and void. For that reason I am unable to accept the amendment.

Mr. Costello

I appreciate what the Minister has said and the enormous number of cases before the courts. However, the cases fall into three categories: those that have been determined; those currently before the courts and those to come in the future. This legislation cannot apply retrospectively. It can only apply to those cases before the courts and those yet to come. The cases already settled will be exempt from this legislation. That is another argument which could be used in relation to the validity of this legislation.

Mr. M. Smith

I have no answer to that except that I would not have had that problem if the Senator had helped me into power earlier.

Amendment put and declared lost.

Section 2 agreed to.

Sections 3 and 4 agreed to.

SECTION 5.

Mr. Costello

I move amendment No. 2:

In page 4, between lines 16 and 17, to insert the following subsection:

"(2) The Civil Liability Acts, 1961 and 1964, the Civil Liability (Amendment) Act, 1996 and this Act may be cited together as the Civil Liability Acts, 1961 to 1998 and shall be construed together as one Act.”.

This is a technical amendment which would consolidate the Civil Liability Acts 1961 and 1964, with the new legislation in 1998.

Mr. M. Smith

I had every sympathy with this amendment. At first glance it semed we could have accepted it. I have been in the House on numerous Bills and I am always anxious to see to what extent I can amend legislation where people are genuinely trying to help. We looked at the circumstances and sought advice from the Attorney General. The basic Act goes back to 1964. There have been a number of restrictive amendments to that legislation since then and I am advised it is not possible or wise to accept the amendment because it would need a more comprehensive effort to consolidate all legislation passed in the meantime. One is not just dealing with the 1978 Act and this Act, there are a number of other Acts involved. However, I make a commitment to see to what extent the proposal to consolidate legislation in this area can be met in the future.

Amendment, by leave, withdrawn.

Section 5 agreed to.

Question proposed: "That the Schedule be the Schedule to the Bill."

Mr. Dardis

I meant to refer to the issue of tinnitus on Second Stage. Senator Henry mentioned it in detail and I bow to her competence in this area. We are fortunate to have such people in the House who can comment authoritatively on medical and technical areas. As I understand it, there is a zero rating for mild disability and a 6 per cent rating for severe injury. Was consideration given to putting these figures into the Bill and why is there no similar specification? This is a more problematic area than the physical assessment of the degree of hearing loss. Tinnitus is a more difficult problem in terms of assessment. Why is the Bill not as specific in this respect as in the other area?

Mr. M. Smith

This is a good question. If one looks at the report as a whole one will pick out, at least, ten or 12 important areas where the mathematical analysis or the research has produced a formula for one area or another. One could possibly consider including all of these. This is in the book. Time and again we have emphasised how we want to see the legislation addressed in the future, that is that the book should be taken as a whole. If we keep separating pieces, no matter how important, they tend to render other parts of the book less important. This is why we confined ourselves to strict criteria on the major aspect of the problem rather than stretching it too far and, ultimately, perhaps, undermining other features in the Green Book.

Question put and agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Minister for Defence (Mr. M. Smith)

I thank the Front Bench spokespersons and all those who contributed and supported this legislation. I thank my officials who have worked hard over recent months on the preparation of different options to put to Government and on this legislation and taking it through the different channels to get it this far. I also thank the Attorney General's office for its support and help. Between the Chief State Solicitor's office, the military authorities and the Department, there are over 100 people permanently employed to deal with this avalanche of cases. This is evidence of a great commitment by Government, legislators and the people to try to find a sensible approach and the resources to get it right. I hope we have started on a new road today which will help us to be in a position to say that we have been able to produce a fairer, more equitable system where no one with a significant injury has the slightest thing to fear but where the courts and the legal profession would seek to address minor injury in its proper league in the context of where national resources should go.

Mr. Glynn

It would be remiss not to congratulate the Minister for the open and statesmanlike way in which he has dealt with this important matter. It is appropriate that the Minister thanked his officials and the Attorney General. All fair-mined people will have to concur that he has put a great deal of thought and effort into this matter. He has been brave and formidable in his determination to bring this saga to a successful conclusion, not only in the interest of those affected, but of the country as a whole.

I thank all Senators who have unanimously supported the Bill. This is a clear indication of the thought that the Minister and his officials have put into framing the Bill. When the Bill has been passed I trust it will find its way into the courts and become the logbook for the future determination of similar liability cases.

Mr. Costello

I congratulate the Minister on his strenuous efforts to resolve this difficult issue and thank him for the manner in which he has presented the Bill and the courteous way he has dealt with queries throughout the debate. I wish him well and hope the outcome will be successful, the matter being resolved once and for all.

Mr. Dardis

I join in the vote of thanks to the Minister and congratulate him on the Bill. It represents a significant step forward in resolving this difficult problem. It is necessary to ensure the liability of the taxpayer is reduced to the absolute minimum while ensuring those with legitimate claims are dealt with and are adequately compensated for their disability or loss of hearing. I expect the legislation will be effective in that regard. I thank and commend the Minister for his presence during the entire debate and I thank his officials and others associated with the passage of the Bill.

Mr. Caffrey

I thank the Minister for the patience he has shown since 10.30 this morning when he first entered the Chamber. He may have formed the mistaken impression that I criticised him whereas I was critical of the neglect and dereliction of duty of people in authority which has led to this situation. The Minister is making a brave attempt to come to terms with it and I congratulate him on that. The wishes of both Houses of the Oireachtas have been expressed with great unanimity on this legislation and it is now up to the Judiciary to take cognisance of it.

Question put and agreed to.