The Minister for Justice and Equality, Deputy Frances Fitzgerald, regrets that she is unable to be present for this discussion. She would like to thank the Senator for raising this important issue which gives her Department the opportunity to outline the progress made in the introduction of periodic payment orders in cases of catastrophic injury.
It is fair to say there has been much debate in recent years on the appropriateness and accuracy of lump sums awarded in cases of catastrophic injury. Assessing damages in such cases is difficult, given the uncertainties involved in making assumptions as to the person's future circumstances as well as issues such as investment returns and inflation rates. The President of the High Court, Mr. Justice Nicholas Kearns, established a working group on medical negligence and periodic payments in February 2010. The group's terms of reference included considering and reporting on whether certain categories of damages for catastrophic personal injuries can or should be awarded by way of periodic payments orders, PPOs, as opposed to once-off, lump-sum orders and to make recommendations and provide draft legislation, regulations and rules as may be necessary. In the course of its deliberations the working group extended its examination to all personal injuries, not just medical injuries.
I am sure the Senator is aware that in many other jurisdictions catastrophic injuries cases are compensated by PPOs which avoid the possibility of over or under compensation, as such payments are tied to actual costs of treatment and actual duration of life. This is not the case in Ireland where the lump sum approach to assessing damages in catastrophic injury cases has been the norm. This approach has been criticised in that lump sum payments can lead to situations where the lump sum is exhausted before the demise of the claimant. Alternatively, if the claimant dies unexpectedly, the remainder of the lump sum becomes, in effect, a windfall for his or her family.
It is the Minister's belief that the introduction of an appropriate and effective scheme of PPOs will address the issues raised by the working group on medical negligence and periodic payments and will further the interests of justice. She is also of the view that a PPO scheme together with other legislative changes, such as the introduction of pre-action protocols for medical negligence, will have positive impacts on high medical insurance costs.
It is vital that any such scheme ensure the continuity of payments to the plaintiff. Where the State has such a liability, security of payment is not an issue. However, in the case of private defendants, usually an insurance company, the matter is more complex. It will require the establishment of a financial infrastructure to ensure continuity of payment, while ensuring the State's position under any such scheme is well protected.
In 2013 the Government approved the drafting of the heads of a civil liability (amendment) Bill to implement the recommendations contained in the High Court working group report on periodic payments orders in personal injury cases with respect to awards made against the State and agreed that the extension of any such scheme to non-State defendants would be examined further in consultation with the Department of Finance. Subsequent to the Government's decision, the Department of Finance, through the State Claims Agency, commissioned an actuarial study of this issue. Following receipt of the study in April 2014, the Department of Justice and Equality established an interdepartmental working group to work through the technical aspects of the issue and devise the elements of the periodic payment scheme for the proposed legislation. In particular, the group examined the following issues: financial security mechanisms for PPOs for both State defendants and private defendants; the indexation of PPOs - the group examined the most appropriate indexation measure for inclusion in the legislation; variable or stepped PPOs; a variable PPO would allow parties to return to court to seek a variation of the order in certain circumstances, while a stepped PPO would include at the making of the order a number of stepped payments to cater for specific milestones in a claimant's life; the extent to which decisions to award PPOs should be mandatory or at the discretion of the court; and the scope of a PPO scheme - whether it would, for example, include both State and non-State defendants. The group has completed its work and made a number of recommendations on these technical issues.
The Minister for Justice and Equality, in conjunction with her colleague, the Minister for Finance, is actively considering the optimum implementation mechanism to ensure the financial security of PPOs. The Minister has informed me that she expects to be able to bring the necessary legislative proposals to the Government in the very near future, with a view to the necessary legislation being published and enacted this year.
