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Civil Liability (Amendment) Bill, 1996 [ Seanad ] : Second Stage (Resumed).

Tuesday, 8 October 1996

Dáil Éireann Debate
Vol. 469 No. 5

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

Dr. Woods: Information on Michael J. Woods Zoom on Michael J. Woods I am delighted the Tánaiste is back and I welcome the Government's change from last week where the Minister told us he had no responsibility. The Tánaiste is welcome back, he should be around more often.

I should ask the Taoiseach, before he leaves the House, if he is prepared to provide exemplary damages in this case because, if so, he has the opportunity to do so under this Bill.

It can provide for exemplary damages so that never again will a Government, a semi-State body or any of the services involved, treat women in the way in which they have been treated in the hepatitis C case. Clearly, information has been withheld. We have proposed that there should be a formal judicial inquiry into this matter and the Government has now accepted the Fianna Fáil amendment on the proposal by the Progressive Democrats. We are anxious to see the terms of reference which will apply to this inquiry. We expect it should be done as a matter of urgency so that the facts can be established quickly.

The Civil Liability (Amendment) Bill, 1996, is a welcome amendment to an [1601] Act which has been of great benefit to the surviving dependants of a decreased family member in the past. The amendment which the Government proposes at this stage will serve to update the Act, principally to take cognisance of the change in money values since the Act was promulgated in 1961 and also by extending the definition of “dependant” for the purposes of the Act to include co-habitees of at least three years standing and people who are entitled to have their foreign divorces recognised by the State.

There is a number of deficiencies in the Bill. Likewise, a number of issues not provided for in the Principal Act should be considered for inclusion in the Bill. I will address these matters later. My main concerns about the Bill are, first, the inadequacy of the Minister's proposed increase in the amount of maximum compensation to £15,000. This figure should be increased to £30,000. Second, it is unfair and discriminatory to treat a family with five dependent children in the same way as a family with one child is cases when the father or mother is killed as a result of the act of a wrongdoer. It is grossly inequitable to divide the same sum — now to be £15,000 — between a surviving spouse and five children, on the one hand, and between a surviving spouse and one child, on the other. Third, there is no provision in the Bill for exemplary damages. Such a provision should be included to cover cases where death is brought about as a result of a deliberate act. For example, if a drug baron or major criminal commits the act then his assets should be the source of exemplary damages. If a State agency is guilty of a major wrongful act against women, as occurred in the hepatitis C case, then there should be provision for exemplary damages.

The Minister proposes in section 2 (1) to increase the amount of damages from £7,500 to £15,000. The sum which could be awarded under the 1961 Principal Act was £1,000. This figure was increased to £7,500 under section 28 of [1602] the Courts Act, 1981. It is proposed to increase the sum to £15,000. While I agree with the principle behind the increase, the figure is too low and should be £30,000. When the Civil Liability Act, 1961, was passed compensation was provided for dependants of the deceased for pecuniary benefits, mental stress and funeral expenses and a maximum sum of £1,000 was payable in respect of mental distress. Thirty five years later it is proposed to increase this figure to £15,000.

This increase, which follows an interim increase to £7,500 in 1981, seems reasonable on the face of it but it is woefully inadequate when one compares the purchase value of money in 1961 with its real value today. For example, according to the Department of the Environment's statistics, in 1961 one could have bought a house anywhere in the country for £2,128. The Minister will probably say that if one takes the consumer price index and carries the figures forward to today one will get a figure of £14,300 or another figure just under £15,000. However, is this the kind of mean approach the Government should adopt when dealing with a family which has lost a husband or wife because of the wrongful act of a third party? The Department of the Environment's statistics show that during the first quarter of 1996, that is before the rapid increase in house prices, the same house would have cost £61,377. On this basis, the level of compensation should be increased to at least £30,000, not £15,000 as proposed in the Bill.

The main reason we support a more realistic increase is that we want to give adequate support to those dependants who have suffered personal tragedy. I appeal to the Minister and the Government to reconsider their position on this matter. We believe that the increase should be greater and we are prepared to pay it when we return to Government next year after the general election. It is not a question of giving a figure off the top of one's head, rather we are committed to it.

[1603]Minister for Equality and Law Reform (Mr. Taylor): Information on Mervyn Taylor Zoom on Mervyn Taylor It is not the Government which pays it.

Dr. Woods: Information on Michael J. Woods Zoom on Michael J. Woods It is the Government which pays in cases in which it is involved. The Minister should not try to do what the Minister for Health did last week and say it is not the Government but the BTSB, the drugs body or someone else which has to pay. The Government is responsible for policy and it will have to pay. There is no question about this and the Government should not try to get away from it in so far as hepatitis C is concerned. If the policy and business of the Government is delegated to a body such as the BTSB it is the Government which must pick up the Bill at the end of the day and it must be prepared to act as a guarantor in those circumstances. The sum to be awarded as damages for mental distress as a result of a wrongful death will be £15,000. If my proposal is accepted the figure will be limited to £30,000.

The present arrangements include an inbuilt discriminatory element. This matter must be addressed now. This element was included in the 1961 Act and the Minister is carrying it forward into this Bill. I wish to contrast the position of a family with a spouse and one child who are the dependants of a spouse killed as a wrongful act with that of a family with a dependent spouse and five children. Under the Bill the sum to be divided will be the same regardless of the number of children, and one does not have to be a mathematical genius to work out that the larger family will be seriously discriminated against in those circumstances. This inequality could be addressed if the amount to be awarded did not exceed the proposed sum, with the additional proviso that it be awarded to each of the dependants within the meaning of the Act. In this way the family with the greater number of dependants would be made equal to the family with fewer dependants. Alternatively a lesser amount could be paid to each dependent child. The Minister is particularly concerned with, and [1604] responsible for, the elimination of discrimination, equality and reform of the law. Yet it is proposed to build more discrimination against families and children into the law. I am sure the Minister did not intend to do this but this is what will happen if we pass the Bill as proposed. We must address this matter now.

In a society with a huge divergence between the rich and poor, the Bill should seek to put both parties on a level, or at least a more equal, footing. Take for instance the unemployed father of a large family whose death is caused by the wrongful act of another person. Under the Act and the proposed amendment, the only money his dependants can claim and may receive relates to funeral expenses and mental distress compensation. In other words, his life is only worth £7,500 before the amendment is passed. Call it compensation for mental distress, if you will. Contrast this with the family of a high earning breadwinner who is similarly killed. His family will receive the compensation provided for under section 48 (5) and the same sum, in most cases, for mental distress. His life is worth more than that of the poor man. One can play around with semantics but, in the eyes of the public, the total sum is what is perceived. Surely the poor man's family is entitled to a greater consideration than this. I urge the Minister to examine the statutory provision to try to produce a more equitable result.

I am concerned that if an unemployed man is the tragic victim and leaves a wife and three children, they will only receive £15,000. I have examples of this in my constituency. Similarly, if a family loses a 14 year old son or daughter, the family will only receive £15,000 plus funeral expenses. In such cases there will be no earnings or pecuniary benefits for which to compensate. I appeal to the Minister to seriously consider the points I raised in this regard. In addressing this aspect of the Bill I deliberately omitted reference [1605] to the funeral and other expenses provisions in section 49. This aspect of the Act has not been challenged in the courts, but who is to say that the High Court or Supreme Court might not strike down the section on an issue of proportionality such as I have outlined. Fianna Fáil will support the Bill on Second Stage and look forward to improving it on Committee Stage.

On the question of exemplary damages, the Principal Act specifically excludes exemplary damages. In general, we are all concerned about costs which we do not wish to see rise unduly. However, in the recent past a greatly respected and well known journalist was brutally murdered. The current wisdom is that her death was procured by rich criminals. Why, in the event of the criminal element responsible being identified, should her family be limited to compensation for pecuniary loss, funeral expenses and a limited sum for mental distress? Because of the heinous crime committed the Government acted on the prompting of the Opposition and introduced legislation which we pressed for at Oireachtas Committees and in this House. Surely such a henious crime should attract exemplary damages. Will the Minister consider this Bill in that regard. I do not want to open the floodgates but there are situations where exemplary damages are appropriate. I urge him to introduce an amendment to section 7 (2) to allow exemplary damages where the death is procured by a deliberate act or as a result of actions which were criminally reckless. Many criminals have the resources and should be made to pay.

This exceptions should be extended to cases where the death occurs as a result of gross negligence. A debate on a Bill to amend the Civil Liability Acts cannot be allowed to pass without consideration of the recent tragic death of Mrs. Brigid McCole as a result of the gross negligence of a State agency. No matter how one considers this issue, the Government is responsible for that [1606] State agency. Earlier today the Taoiseach provided definitions of and lectures about public administration but he is aware that the Government of the day is responsible for the overall policy and operation of semi-State bodies, while the semi-State body is responsible for its day to day activities.

When, as in the case of the death of Mrs. McCole, a death is brought about by the reckless behaviour of an agency whose duty it is to participate in healthcare on behalf of the State, exemplary damages should be awarded. The State and State bodies must be made aware that this situation will not be accepted by this House. We want to make an example and inform those who are affected by and may lose their lives as a result of this scandal that this House does not approve of it. Leaving aside the politicking which occurred earlier, the hard reality is that we cannot, will not and do not approve of the activities which took place. Neither do we approve of those responsible for the cover-up. I am not stating that the Minister was responsible but he is responsible for getting the facts into the open.

An Ceann Comhairle: Information on Seán Treacy Zoom on Seán Treacy Let us not anticipate the debate on the Motion proper on hepatitis C this evening.

Dr. Woods: Information on Michael J. Woods Zoom on Michael J. Woods There is no fear of my doing so. This is a matter of liability relevant to the Civil Liability Bill.

I hope the Minister for Equality and Law Reform will not follow the example of the Minister for Health by attempting to shirk his political responsibility for the tragic events brought about by the hepatitis C scandal. The Minister for Health may be of the opinion that he can fool the public into believing he has no responsibility for recent events. However, I am sure the Minister for Equality and Law Reform will agree it is his duty to rectify an omission in the civil law which currently fails to provide for exemplary damages in situations such as that to which I referred.

[1607]An Ceann Comhairle: Information on Seán Treacy Zoom on Seán Treacy I hope the Deputy will respect the Chair's earlier request to not encroach too much on the debate which will ensue this evening on the specific matter of hepatitis C.

Dr. Woods: Information on Michael J. Woods Zoom on Michael J. Woods Where a State agency supplied a blood product which was known to be contaminated and for which it has now, following a disgraceful and inexcusable delay, admitted liability, there must be a case for exemplary damages. Such damages do not exist at present and we are dealing with the Bill by means of which they can be introduced. There are, perhaps, no two better examples than those cited where this House would want exemplary damages to apply.

Such an amendment will lead in turn to a necessary amendment to section 48 (6) which provides that the action shall be commenced within three years after the death. This is fine where the identity of the wrongdoer is known, but it is of little value where he or she is unknown. The section should be amended to include a provision which would enable the action to be taken within three years of the death or within three years of the identity of the wrongdoer being established. In the case of a criminal act, this later period might not commence to run until the criminal was convicted of the crime causing the death. It might not be necessary to have such certitude, it could be approached on a balance of probability basis.

The Principal Act spelled out in detail the members of the family involved. They are listed as wife, husband, father, mother and so on. Section 1(a) defines “dependant” in what the Explanatory Memorandum calls “gender neutral terms”. The Minister did not achieve success in arriving at a gender neutral term for brother, sister, half brother and half sister. If he had consulted the Oxford Dictionary he would have been able to gender neutralise the entire section. It defines “sibling” as “one of two or more children having one or both parents in common”. This would have enabled him omit the term [1608]“brother, sister, half brother or half sister” and be politically correct and consistent throughout the Bill. In section 1 (1)(c) he could have omitted the term “husband and wife” and substituted the word “spouse” and rendered that subsection gender neutral.

Section 3 proposes a new section 49 (a) which states:

Notwithstanding anything in this Part, damages may not be awarded to a person referred to in paragraph (b) of the definition of `dependant' in section 47 (1) in respect of any mental distress allegedly caused to the person by the death of the deceased.

Paragraph (b) of section 47 (1) states:

A person whose marriage to the deceased has been dissolved by a decree of divorce that was granted under the law of a country or jurisdiction other than the State and is recognised in the State.

From my reading of the Act, the only award that could be made to such a person would arise if he or she incurred funeral expenses on behalf of the deceased or lost pecuniary benefit. If that is the intention, I have no difficulty with it. However, if a stranger were to provide funds for the funeral expenses incurred they are not included as a party who could recover those expenses from the wrongdoer. Should the Minister not include such persons in the amendment to the Act?

I also note provision has not been made for the inclusion of a spouse recently divorced in the State under our new constitutional jurisdiction or in the definition section of the word “dependent”. Surely a recently divorced spouse should be included under the heading of mental distress and pecuniary benefit. There should be a limit of, say, three years for mental distress. In the Bill a foreign divorcee would be entitled to funeral expenses if they pay them. Why should the same not apply to an Irish divorcee under the constitutional amendment?

[1609] Section 2 (1)(b) proposes to empower the Minister to vary the amount to be paid by way of compensation for mental distress, having regard to the changes in the value of money generally in the State. I note he phrased the section in the negative. He wishes the Order which he would place before the Houses of the Oireachtas to stand unless a resolution annulling it is passed by either House within 21 sitting days. Has he considered the implications of Cityview Press v An Comhairle Oiliuna 1980 or Harvey v. the Minister for Social Welfare 1990 and the other cases flowing from those two decisions? In the former case the courts recognised that a ministerial power conferred or delegated by statute might only give effect to principles and policies contained in the statute. This is the so-called principles and policies criteria.

The Harvey v. the Minister for Social Welfare case demonstrates that there are two strands to the case law on Article 15.2.1º, namely, the principles and policies criteria and the Oireachtas may not delegate the power to make, repeal or amend the law. The Minister's proposal to allow the amount of damages awarded under the heading of mental stress to be varied by Order is unlikely to fall foul of the provisions of Article 15.2 of the Constitution, but this should not be even a remote possibility in properly drafted legislation. The provision which requires that a draft of every Order made under this section is laid before the Houses of the Oireachtas should be discussed further on Committee Stage.

The Bill is inadequate for today's needs. The sum to be awarded as damages should be increased to £30,000. We are also concerned about the inbuilt discrimination in the original Act, and continued in this Bill, against families of different sizes. The Bill does not address the question of exemplary damages for the dependants of a person whose death is caused by a deliberate act of a wrongdoer or another person acting on his or her behalf. Why should the assets of a [1610] wrongdoer or a criminal who kills or procures the death of another person be immune from exemplary damages? That should not be the case.

We will table an amendment on Committee Stage aimed at ensuring that the assets of drug barons and major criminals are no longer secure from such action. We will table a further amendment dealing with the right of action for damages for mental stress and exemplary damages where death is caused by professional negligence, such as the current hepatitis C case.

Ms Keogh: Information on Helen Catherine Anne Keogh Zoom on Helen Catherine Anne Keogh I am sure the Minister thought this was a non-contentious Bill. I welcome it but, in the light of recent unfortunate circumstances, it must be amended. It is non-contentious in so far as it seeks to amend the civil law to improve the rights of dependants who suffer loss through the death of loved ones as a result of wrongful acts. The 1961 Act gives such dependants the right to claim damages for mental distress, loss of pecuniary benefits and funeral expenses.

The Bill will increase the limit for compensation from £7,500 to £15,000 and extend the definition of dependants to include cohabitants and spouses of foreign divorces recognised here. It will allow the Minister increase the amount allowable for compensation by ministerial order. During the debate on the Occupiers' Liability Bill we talked about the compensation culture that exists. When people hear the word “compensation” their hackles tend to rise, but I hope they realise this Bill deals with a different matter. While money could not compensate those devastated by the loss of a loved one, it might help to cover the expenses incurred by the family concerned.

In the first instance, the limit for compensation has been raised from £7,500 to £15,000. I will table an amendment in this regard to raise the sum to, say, £30,000. If one considers the figures from a 1981 base £15,000 would be in line with inflation but it is not a sufficient amount if one uses a 1961 base.

[1611] In addition, one has to take into account that the amount of compensation may have to be divided up among a large family. A sum of £15,000 is not sufficient. Although the figure is in line with inflation since 1981 the legislation was not updated sufficiently at that time. How did the Minister arrive at the figure of £15,000? Was it based on inflation since 1981?

There should be a degree of flexibility in relation to the circumstances of a family. The Minister should have the power to raise the amount allowable for compensation and the amount should be examined on a regular basis. There are often provisions in legislation for set amounts which are left unchanged. It should be in the Minister's remit to examine the amount at specified periods.

In extending the category of those who have a right to claim damages the Minister is recognising social reality. The Bill acknowledges the reality of changing relationships, changes within society and the changing nature of the family. As the Minister said, the definition of a dependant must be amended to include those whose marriages have been dissolved in the State when the divorce Bill is enacted. Will the Minister indicate how he arrived at the proviso that cohabitants must have lived together for at least three years?

If it had not been for the tragic case of Mrs. McCole who died as a result of the hepatitis C scandal, leaving a family of 12 behind, we would not have examined the issue of exemplary damages. The Minister has an opportunity to reexamine the Bill to see if an amendment is possible in the light of that case and the principle that the issue of exemplary damages should be included in this Bill. In a humane society those who have perpetrated wrongdoing should not get away with it. If there is a way in which they can be brought to book and made to pay damages it should be implemented. The Minister should consider this matter seriously.

It is a pity this matter arises in the aftermath of a tragic case. The hepatitis [1612] C scandal will form part of the Private Members' debate this week and I will not go into it in detail. I find the whole issue horrendous and difficult to talk about. I ask the Minister to consider my amendments and to formulate an amendment to the Bill to deal with the issue of exemplary damages.

Mr. E. Byrne: Information on Eric J. Byrne Zoom on Eric J. Byrne It is sad that we should be debating civil liability after the unfortunate death of Mrs. McCole. My heart goes out to all the women and their families affected by contaminated blood products.

I applaud this excellent Bill. It brings Irish society into the 21st century because it addresses the issue of compensation for mental distress and fatal injuries in actions which are brought under the Civil Liability Act, 1961. It also extends the categories to cohabitants and persons whose foreign divorces are entitled to recognition in the State now that the country has moved forward with legislation to allow people whose marriages have broken down to separate in a modern and humane manner. Marital discord has become a more frequent occurrence. The many Irish people who have travelled abroad, married abroad and who, subsequently, have availed of foreign divorces will now be afforded some compensatory rights.

I am sure the Bill will pass without controversy. Given that the Bill deals with civil liability, it raises the hornet's nest of the “compo culture”. No person claiming for mental distress after a fatal-accident will be frivolous in pursuing a claim. However, it is important to point out that our civil liability laws are a necessary protection for the public. The 1961 Act and this amending Bill will ensure that ordinary citizens will not be by-passed in making civil liability claims because of a lack of understanding of the law, as may have been the case in the past. It is an important legislative protection. I welcome the amendments which will bring the amounts payable in the context of the 1961 Act up to a rate more appropriate to the 1990s.

[1613] What is happening in society with regard to liability and compensation is worrying. In the past ten years the system of civil and public liability has been turned into a gold-mine which is being exploited by unscrupulous individuals out to make a quick buck. These unscrupulous individuals are often aided by a minority of ambulance chasing solicitors.

I am sure Members will not be surprised when I remind them that it is a common sight, particularly in poorer communities, to see large billboards proclaiming the words, “make sure you receive the compensation you deserve”. If one checks the Golden Pages one will see those words in advertisements that cover three-quarters of a page or the full page. Advertisements in it are wallpapered with the word “accident”. That word jumps out at the reader as if solicitors have engaged professional PR or marketing managers to act on their behalf. As if further encouragement were needed, they often provide a freefone number for members of the public who believe they may be able to milk a public liability system, which in the past few years has gone out of control. There are more than 20 pages of advertisements in the current edition of the Golden Pages which repeatedly screech the words “accident, compo, get money, get rich quick”.

In recent months I have noticed a proliferation of solicitors' billboards metaphorically inviting punters to search for a loose paving stone, make a hefty claim for compensation and get a sizeable cheque: There are many cases where citizens are more than entitled to compensation for injury or damage suffered and those responsible should be made pay up, but I argue that a responsible solicitor is capable of weeding out frivolous cases from serious claims. Unfortunately, the number of frivolous claims is mushrooming and far from weeding out such claims a small minority of solicitors are leeching on to a good thing. With the help of billboards, the Golden Pages, local newspapers and [1614] flyers circulated door to door, solicitors are encouraging individuals to claim lotto style compensation payouts.

It might be argued that the people are only using the laws the Oireachtas has given them and that is hard to deny. We have read and heard of the abuses in this area. We are familiar with these type of claims because many of the Members hold positions on health boards and local authorities and are aware of claims made against public transportation systems, such as Dublin Bus, as well as the claims mounting against Dublin Gas and the ESB. We are also familiar with the frequent practice of the same claims being made against a number of authorities. Examples of such claims include those made by Dublin Corporation flat dwellers who experienced inconvenience, such as dust in the atmosphere, when their homes were being refurbished. There was a sad case where a hefty claim was lodged against the volunteers in a voluntary agency as a result of mashed potatoes falling on the floor. Those volunteers are only interested in improving the quality of life of the elderly for whom they provide meals. The agency providing those meals was doing good work, but the net result of that case being taken is that local authorities can no longer make such buildings available for people who are trying to upgrade the quality of life of people, particularly the elderly. Dublin Corporation is at present facing a total claim of £20 million and claims have increased threefold in the past six years. I am sure very few Members would argue that there has been a similar increase in the number of genuine accidents. It is arguable that the number of accidents is decreasing but the number of claims is increasing. Last month it was revealed that Irish architects have been effectively excluded from taking up public sector projects because of new guidelines requiring them to take out professional indemnity insurance cover which can cost up to £75,000. I do not want to labour that point further.

[1615] Public sector bodies and those seeking to service the public sector are currently facing a spiralling compensation crisis which in the long term may impact on the quality of services and amenities being employed by ordinary citizens. I argue that part of the increase can be attributed to the continuing absence of strict guidelines on solicitors' advertising. The flood of frivolous, but lucrative, compensation claims and fraudulent claims must be stemmed using a two-pronged approach. Solicitors must strictly regulate advertising and an antifraud package must be introduced to consolidate existing legislation which would close any gaps and underpin the work of the national fraud bureau.

Although this is not the main element being addressed in the Bill, given that there is a compensatory element in it I took this opportunity to outline the concerns of many people about civil liability claims soaring out of control which will have a negative effect on communities and citizens. Everybody knows there is no such thing as a free meal. Somebody must pay the bill for a £100,000 settlement given to a person driving a car into a hole. It is tragic that the quality of social life may be reduced and that the input of voluntary agencies, such as youth clubs and football clubs, is being undermined.

Mr. J. O'Keeffe: Information on Jim O'Keeffe Zoom on Jim O'Keeffe I want to focus on two matters in relation to this Bill, the compensation payable for mental distress in a fatal accident case and the remarks made about fraud. I agree with some of the remarks made by my colleague, Deputy Byrne, but not all of them.

It is time we took a fresh look at what the level of compensation should be for mental distress. When I was a law student a good few years ago we were taught that from the point of view of a negligent party it was far cheaper for that party to kill rather than to maim. That thinking still prevails and it is the thinking behind this Bill. If a person is seriously injured and brings a claim, [1616] provided negligence is proved, that person is compensated for loss of earnings and future earnings and other medical expenses. He or she is awarded a figure by the courts for pain and suffering to date and prospective pain and suffering in the future. That figure is assessed by the courts and in serious cases can be substantial and that is only right. I am talking about genuinely serious cases where a person could end up as a paraplegic or quadriplegic and the general damages for pain and suffering and the ill done to that person is compensated for fully by the courts by an award which may be a very substantial sum. I mention that point because it may be argued against the point I am making that it is impossible for the courts to put a figure on the value of a person's life. I understand that thinking, but how can the courts decide a figure for the pain and suffering of a person who has become a paraplegic as a result of a road accident? That is the job of the judges. They take reasonable factors into account, come to a conclusion as to what is reasonable in all the circumstances and decide a figure. Whatever figure it is, I am sure most people who suffer such horrendous injuries would say it is probably not adequate. However, it is a reasonable effort by the courts to adequately compensate people who receive injuries, in particular those who are seriously injured. That is the backdrop to the question as to whether there should be adequate and proper damages for mental distress in a fatal accident case. The debate is not new. When the figure was assessed in 1961, I think it was about £1,000. It was raised 20 years later to the current figure of £7,500, a derisory sum. The Minister does not suggest that this is compensation — it is regarded as recognition by the court that there is mental distress. It is time we went further. We should either fix a sum of adequate proportion in the Bill or give the courts discretion to award a sum which they consider reasonable in all circumstances. Similarly, the courts can award a sum for [1617] general damages where there is considerable pain and suffering involved. I am not referring in particular to recent cases such as the lady who died from hepatitis C, but it highlights my point.

There are 500 or 600 people killed in horrific accidents on the roads each year, in many instances because of the negligence of others. Why should such people, or their dependants and relatives be limited in the amount they can claim as a consequence? This is the thrust of the civil liability legislation. It is improper that this is the approach we impose on the courts. What do the courts do now when there is a fatal injury case? I am a bit rusty in practice now but, as I understand it, they automatically add on the maximum figure allowed by the Civil Liability Act. They do not have adequate moneys within the limit under the Act to take any differentiation into account. Although all lives are equal, there can be differentiation. The mental distress suffered in all cases is not the same. An elderly person with relatively distant relations surviving would of course be a loss. It is a life lost and that factor should be recognised by the court and in any award which follows. However, the contrast could be the death of a young mother survived by a husband and seven young children, all of whom suffer continuing mental distress as a consequence. There can be different situations arising from death.

Essentially, the courts are not empowered to take that into account in an award for mental distress. The time has come to examine this issue afresh and to include a maximum figure in the Act, which we can stand over. I find it difficult to stand over a derisory figure of £15,000 as being adequate for mental distress on someone's death. If we are not anxious to include a figure for mental distress in the Act, consideration might be given to not having a limit and leaving it to the courts to decide, in the same way the courts decide the figure for general damages and pain and suffering. This would be an alternative [1618] approach which I put forward for consideration. I am unhappy about a situation where we continue to put a ceiling on the award courts can make for mental distress and fatal injury cases. I note there is provision for increases by ministerial order in the Bill. I see no problem with this but the provision seems to be constrained in that any increases such as cost of living factors are taken into account, rather than any general reappraisal of the overall limit.

We must also be careful with compensation cases and the issue of fraud. I agree with Deputy Eric Byrne's views on fraud. We must be unrelenting in trying to establish systems to prevent fraud and in pursuing those who gain from it. Perhaps not enough is being done from the point of view of either preventing fraud or following up fraudulent claims. The danger is in confusing this approach with a view that those who are entitled to compensation should be prevented from making their just and proper claims before the courts. People who have accidents as a result of the negligence of others must get to court and be entitled to legal assistance.

It has been said that the legal profession were operating a cartel in relation to fixed fees, etc. There was huge pressure on them from the competition authority to open up to advertising and enter the modern world. As I recall, this was forced on them. I am not sure it is entirely fair to castigate solicitors who advertise their services in the Golden Pages or on billboards. I should declare an interest as a solicitor although not a practising one at the moment. I am not sure I would be keen to advertise my legal services on billboards but if that is the modern approach some solicitors want to adopt, that is fine with me.

It should not be confused with the fact that if solicitors' clients have proper claims, they are entitled to proper representation and compensation. There is some danger in confusing the question of fraud and the entitlement of people to proper compensation. In relation to fraud, there must be a case for more [1619] detailed investigation of claims. In many instances, relatively small claims are not fully and properly investigated. This is a wrong approach on the part of some people who are paying the piper, including some insurance companies. All these claims should be properly investigated. If they are not agreed, they should be fought in court. To accept claims and then raise the issue of fraud does not make sense. I have no doubt there are compensation claims, which, if properly investigated, would never be paid. Recently, I read in the newspapers about fraudulent claims on medical insurance, one of which was a claim for a hysterectomy by a young man.

Mr. E. Byrne: Information on Eric J. Byrne Zoom on Eric J. Byrne Sack the solicitor.

Mr. J. O'Keeffe: Information on Jim O'Keeffe Zoom on Jim O'Keeffe The person investigating that claim should be sacked. If such ludicrous claims can be made and let through it highlights my point. On the issue of compensation claims, people are entitled to make claims and to be properly represented, but where there is a possibility of fraud we must ensure claims are properly investigated and evidence of fraud should be presented to the Garda and the DPP. The people should be prosecuted and put in jail if necessary. People who make fraudulent claims should not be allowed to get in the way of those who have just and proper claims.

I suggest a reappraisal with regard to damages for mental distress and fatal injuries cases. In light of the current economic position it would be a symptom of a more civilised society if we took an approach which might not have been appropriate 30 years ago given the economic circumstances of the time.

Mr. Lenihan: Information on Brian Joseph Lenihan Zoom on Brian Joseph Lenihan I welcome this non contentious measure. It improves various aspects of the fatal accidents code. Deputy Eric Byrne made an interesting contribution on the compensation culture. I have to declare an interest in the first instance as a member of the Bar. I [1620] am not allowed to put my name on a billboard, although I read occasionally about the fees I earn in the press.

As poacher turned gamekeeper I have some sympathy with Deputy Byrne. There are certain measures which should be considered with regard to the compensation culture. The culture is not of great social benefit in some of its aspects. There was much wisdom in the rulings of judges on civil liability down through the years. They tended to view with suspicion occupiers' claims and that type of claim. It has been the experience of the profession that the greatest abuse takes place, for example, in claims against local authorities. Equally, the recent changes in the motor insurance bureau arrangements, where a claim can be maintained against an untraced driver, can in certain circumstances lead to abuse. As Deputy Jim O'Keeffe said, we need far more rigorous systems of control and invigilation for that type of claim. The problem with the compensation culture, as Deputy Byrne said, arises from the operation of sports clubs, youth clubs and political parties where enormous sums are required or demanded by insurance companies to finance worthwhile social activities.

It was suggested that advertising by solicitors should be abolished. For the reasons outlined by Deputy O'Keeffe, there was a demand made by the Competition Authority that solicitors fees should be known, that the public should have a choice and there should be some measure of competition within the profession. A code of practice is required here. I agree with Deputy Byrne that some of the advertising is undesirable. It is a matter the Law Society should look at in tightening up its code of practice on advertising and in discouraging the type of advertisement which fosters or gives the impression of fostering the ambulance chasing mentality. Potential litigants are entitled to exercise their rights before the courts which are established for that purpose, but I agree there is something indecorous about advertisements which give the impression to [1621] litigants that they are under almost a moral obligation to institute proceedings in the courts. They are not, of course.

On systems of fraud control and abuse, I understood the local authorities took an initiative in that regard recently in relation to sharing information. That is very important.

With regard to this measure, I welcome the extended definition of “dependency”. The original 1961 Act contained a broad definition of “dependant” and included, for example, in the case of a child, a child in relation to whom the deceased stood in loco parentis as distinct from being a married parent. The fact that dependency is a factual dependency was recognised in the original Act and in this measure the Minister is extending that definition to accommodate various social changes which have taken place in the interim.

Like Deputy Woods, I found curious the decision to exclude a divorced spouse from an entitlement to claim damages for mental distress. After all, the divorced spouse is in a position to claim damages for loss of dependency under the legislation, but there is a singularity in the treatment of a divorced spouse in this regard. The court always has a discretion to consider mental distress and the divorced spouse could come within the category of persons who can claim damages for mental distress. Perhaps the Minister was concerned that there would be a conflict in the case of a remarriage between the remarried spouse and the divorced spouse regarding a claim for the compensation moneys for mental distress. The court could resolve that conflict in an appropriate case.

When mental distress was provided for in the 1961 Act it was an innovation. Prior to that there was no entitlement to compensation for mental distress suffered by the dependants of a deceased whose accidental death arose from the negligence of another. The figure of £1,000, solatium as the Minister correctly described it, was an innovation in [1622] the 1961 Act. Indeed it was a provisional innovation because a further Act was required in 1964 to eliminate a three year limitation that was put on it. It was initially viewed as an experimental measure and I welcome the proposal to increase the amount to £15,000. It is difficult for the Minister to act as Solomon in this matter because he has to draw a line on what is the appropriate measure of compensation. That is a function normally reserved for a judge or jury in an appropriate case such as libel or where a jury is still used in the assessment of civil compensation. The Minister faces a difficult task because until recent years the law tended to view with disfavour a claim for mental distress as it was the recognition of a legally protected interest in the life or interests of another. In 1961 the recognition of an expressed statutory right for compensation for mental distress apart from any question of dependency was an innovation.

In the past 30 years we have seen enormous changes in the thinking and decisions of the courts in this area. In the case of injury claims, an item of damage frequently claimed by plaintiffs is compensation for mental distress arising out of the trauma suffered in an accident. That is somewhat different in the sense that the plaintiff suffers trauma arising from an accident in which he was involved. There is a great deal of trauma associated with the accidental death of a loved one.

The Minister has the difficult task of assessing a compensation figure in these cases. Professional practice since 1961 has been to pay out the amount prescribed under legislation. That is a remarkable practice in the sense that earlier decisions under the 1961 Act suggested that the amount fixed in this House was but a notional figure and that the function of the court was to assess in the first instance the amount of mental distress suffered. In practice it does not work that way. Whatever figure the Minister fixes will become the definite figure for these purposes. While I see much merit [1623] in Deputy O'Keeffe's suggestion that we should consider giving the courts discretion in this matter, judges may not want to exercise such discretion because nobody likes to assess the worth to one person of the departed life of another. In that sense we would do the judges a favour by fixing a figure here.

Arising from what Deputy Woods said, there may be a case for varying the amount depending on whether the person involved is a surviving spouse, parent or child. Surely the loss to a spouse would be greater than to any other relative recognised by the Bill, yet the guideline figure is the same for all survivors of a deceased person. Perhaps the Minister will consider that matter before Committee Stage.

Mr. Taylor: Information on Mervyn Taylor Zoom on Mervyn Taylor Will the Deputy give his view on the figure?

Mr. Lenihan: Information on Brian Joseph Lenihan Zoom on Brian Joseph Lenihan Bearing in mind the compensation awarded by courts to people who suffer trauma as a result of an accident, a figure in the order of £20,000 or £25,000 would be fair.

The Minister has power to vary the amount of compensation in the future. Deputy Woods referred to constitutional difficulties that might arise. In considering an increase, regard must be had to changes in the value of money generally. In those circumstances ministerial discretion may be exercised. With the marvellous news about State finances at present we may anticipate a period of deflation, in which case the Minister may have to decrease the amount awarded, which is theoretically possible under the subsection.

On the issue of exemplary damages, it is often forgotten that under the criminal injuries compensation scheme the next of kin of a murder victim are entitled to claim compensation, which is assessed in accordance with the Civil Liability Act. The abolition of compensation for pain and suffering for the next of kin of a murder victim was most regrettable and unfortunate.

This proposal is worth considering in the context of an unknown wrongdoer [1624] as well as a known wrongdoer. State liability would be extended enormously if the principle were applied to the case of an unknown wrongdoer, in which case the claim would be considered through the Criminal Injuries Tribunal. Perhaps the Minister will consider making provision for the case of a known wrongdoer where there is a conviction for murder or manslaughter. The question would then arise of whether there should be a monetary limit in that regard, but I believe that should be left to the discretion of the courts.

Under the 1961 Act a claim must be brought by an executor within six months of the death of the person and after that period has elapsed any one of the statutory dependants may maintain proceedings. Where the survivor is an impoverished widow, even though she may have no interest in taking out a grant of probate within the six month period she may be anxious to have proceedings prosecuted with the greatest expedition. Without the six month provision any statutory dependant could bring an action immediately after the death. In future years problems may arise in that different statutory dependants may seek to maintain the proceedings and there is no provision in the Bill to deal with circumstances where two rival members of one family wish to bring a claim. That could be dealt with by providing that the court will adjudicate on who may bring forward proceedings in that instance.

Since there is no commencement section I take it the Minister has decided that the Bill should come into force in accordance with the Constitution, a number of days after signature by the President. There is a case for setting a commencement date such as 1 January next because the Bill applies to cases of action accruing only after its commencement. Perhaps the Minister will consider that matter. I congratulate him on a worthwhile measure.

Mr. Bradford: Information on Paul Bradford Zoom on Paul Bradford Unlike the two previous speakers I have no legal knowledge to bring to bear on this debate. It [1625] is an important Bill which will not be a cause of contention. I did not hear the Minister's opening speech last week but I heard most of the speeches this afternoon and as one would expect there is general welcome for the Bill. Deputies Byrne, Lenihan and O'Keeffe provided food for thought and I will comment briefly on the points they raised.

Very often generous compensation is awarded in civil cases and in many instances the claimants may recover from their injuries and suffering and return to a full and healthy life. In this case, however, we are dealing with claimants who may never get over their loss. This Bill does not attempt to put a value on a person's life and while I welcome the increase in the maximum amount of compensation to £15,000, a huge increase on the original limit of £1,000, there is a perception among the public that we should be a little more generous.

Deputy Lenihan suggested that the figure should be £25,000. It is difficult to fix a suitable maximum figure. I take the point that the Minister will have power by ministerial order to change the figure when necessary, but I concur with Deputy O'Keeffe that the amount should be somewhat greater than the £15,000 maximum limit.

Not being an expert to any degree I cannot very well volunteer a figure but the Minister should take cognisance of what Deputies O'Keeffe and Lenihan said. Perhaps the Minister could think of moving beyond the proposed new limit of £15,000. I know the legislation is necessary and helpful and that it is an improvement, but for the few cases we will be dealing with concerning genuine distress and huge changes under the legislation, we must be as generous and compassionate as possible. While £15,000 is not seen as an answer to their problems it is some recognition by the State and I hope we can do better than that.

Deputy Eric Byrne broadened the debate to the level most public representatives deal with on a more frequent basis now than heretofore, [1626] namely the plethora of civil compensation cases that come before the courts. As councillors we often discuss and deal with such matters at local authority meetings. Some Members are aware of the recent decision by Cork Corporation — of which I am not a member, although I am a member of a neighbouring authority — to provide members of the corporation with a list of the amount of money paid to claimants over the years. That list opened many councillors' eyes and the publicity it generated opened the eyes of the general public also. It was disturbing to see a trend emerging in which not only were claims increasing rapidly but, unfortunately, there were also a significant number of repeat claims.

The co-called compensation culture has set in to a severe degree and, apparently, the State is not able to prescribe any medicine to deal with this new problem. Like social welfare fraud, we should not exaggerate it and claim that it is happening in every townland and parish, but it must be dealt with because it is beginning to have an effect on voluntary community organisations including sports clubs. Certain functions and facilities are no longer available to the public because of the difficulty in obtaining public liability insurance.

It is not the purpose of this legislation to deal with such a scenario but when we discuss any form of compensation most minds will now focus on the wider picture involving civil cases and the compensation culture. I hope it is receiving the Government's attention because the taxpayer ends up footing the bill for someone who drives into a pothole and then claims £50,000 from the State. The money is not plucked from the air, it is taxpayers' money and that is why the issue should be of wide concern to public representatives. I expect it will receive significant attention from the Government.

As the Minister said in his speech last week, it is a sign of the changing times that we must take note of new types of dependant. This is not simply as a result [1627] of what will flow from the divorce legislation but also because we must respond to the situation caused by so many people living together even though they are not married. I welcome the fact that the Minister is dealing with this is a practical fashion. We must provide for the difficulties caused by changing lifestyles and there is no point in pretending that these scenarios do not occur. The Minister is trying to broaden the legislation to take into account every possible set of domestic circumstances.

The previous maximum limit of £7,500 has risen to £15,000, which I welcome. As the Minister pointed out, this figure is not meant to put a defining value on the life of the deceased. We must be as generous as possible and in that sense I hope the Minister will consider a slightly higher figure than the £15,000 he has proposed.

Minister for Equality and Law Reform (Mr. Taylor): Information on Mervyn Taylor Zoom on Mervyn Taylor I am grateful to the House and to the Deputies for the general welcome given to this Bill. It adds to the reform of our laws on civil liability which I initiated not long ago by way of the Occupiers Liability Bill. Earlier this year I gave a commitment to the House that I would look into the question of amending that part of the Civil Liability Act, 1961, dealing with compensation in fatal injury cases. I am glad to be able to deliver further now on that commitment by way of this Bill.

It might be of assistance to the House if I were to sketch the background to the provisions which exist in our law to deal with compensation in fatal injury cases. The Bill is concerned with that part of the Civil Liability Act, 1961, which relates to liability for causing the death of a person. The common law rule was that the courses of action in tort were generally destroyed by the death of either party. This unhappy state of affairs was remedied by legislation. The present statutory law contained in the 1961 Act makes clear, in section 7, that on the death of a person all courses of action — other than certain accepted [1628] courses of action — vested in him or her shall survive for the benefit of his or her estate. Moreover, the same Act makes clear that the rights conferred by section 7 for the benefit of the estate of the deceased are in addition to the right conferred on the dependants of deceased persons by Part IV of the Act. In section 8 the Act provides that courses of action subsist against deceased persons.

Common law also had another rule which was that in a civil court, death could not be complained of as an injury. It meant that the common law countenanced no civil claim for a loss caused by the death of a person. However, by operation of Part IV of the Act of 1961 and prior to that of the Fatal Injuries Act, 1956, important exceptions to that common law rule were created. Part IV is specifically designated to benefit certain classes of persons within the family group who may suffer by the death. It compensates those relatives for economic loss.

The salient point about an action on that basis is that there must have been a wrong to the deceased. Damages are apportioned as the court thinks proper among the dependants. The right of dependants to compensation is not a solatium for grief and injured feeling but to damages for a pecuniary loss, actual or perspective. The claimant is entitled to damages proportional to the loss sustained by him or her from the death. The assessment and apportionment of the pecuniary loss is decided having regard to the facts and circumstances of each particular case. Formerly the law was that funeral expenses were not recoverable but again statutory provisions as now contained in the Act of 1961 provide that those expenses may be recovered if they have been discharged by the dependants.

Damages for mental distress were first introduced in the Act of 1961. That compensation is a form of solatium or compensation for injured feelings. It is important to recognise that damages for mental distress are in addition to what [1629] may be awarded by way of general damages or special damages. They give solace to the claimants and in a system of civil law such as ours which is based on the fault principle they have a basis in the principle of ethical compensation. It is in that context that the long standing policy since 1961 has been to have a statutory limit on the amount which can be awarded.

It was not intended that this Bill should be a broad ranging general review of the law of civil liability. It is a strictly limited Bill dealing with limited specific objects. It deals with two basic points namely, it provides for new categories of persons who may claim for damages and updates the compensation figure for distress where a fatal injury has been caused. It extends the definition of dependants who should be in a position to claim damages for a law where a wrongful act gives rise to a fatal injury in Part IV of the 1961 Act to include cohabitants and persons with foreign divorces which are recognised in the State. It is the intention also that the passing of the Family Law (Divorce) Bill or this Bill, appropriately amended, depending on which Bill is passed first, will enable persons who obtain a divorce here to make a claim under Part IV.

The question of the maximum figure has been the subject of much discussion in the course of the debate. Deputy Keogh raised the question of how exactly the figure of £15,000 was arrived at. The answer is very simple and logical. We updated the figure of £7,500 which obtained since 1981. As Deputy Lenihan rightly pointed out, originally no figure was provided for. A figure of £1,000 was then introduced which was later increased to £7,500. I propose the sum of £15,000 in this Bill.

Deputy Lenihan gave an interesting historical analysis of how we arrived at this position. Having listened to the debate it may be that we should look at the figure and perhaps have an appropriate variation. The attitude of the [1630] common law originally was totally negative in this regard but things change with the perception of the time. My initial intention in introducing the Bill was to do no more than maintain the status quo but I have been impressed by what has been said and, while not giving any commitment, I will carefully consider the matter between now and Committee Stage.

The question of exemplary damages is another matter which would require a more extensive examination. There is provision in the law as it stands for the award of exemplary damages provided strict conditions are met, although I accept they are rarely, if ever, awarded, except perhaps in libel and slander cases. It would not be my intention to go down that road at this time but no doubt at some stage that aspect will warrant consideration.

Deputy Eric Byrne made the point that there is no such thing as a free lunch. If one increases the amount of authorised compensation somebody will have to pick up the tab, whether it be the State, a local authority or an insurance company, which means everybody. It will affect insurance premia, taxation and all other aspects. One has to proceed with a degree of caution and care. On the one hand there is no point complaining about a compensation culture and on the other seeking even greater extensions of the amounts which may be awarded in compensation. There is a conflict and a compromise has to be arrived at.

It is logical that a person who has been divorced should not be entitled to solatium. They are reasonably entitled to the financial loss element of the claim — one can understand the reason for this — but given that the people concerned are, in effect, strangers so far as relationships are concerned and no longer cohabitants solatium would not be appropriate in the case of a divorcee.

Deputy Lenihan raised the question of the six month period and the personal representative. We will look at it between now and Committee Stage but the position is that when a claim is made [1631] every person who might come into play has to be either a plaintiff, a defendant or a notice party. The court has to be satisfied that all relevant parties have been drawn in before an order is made.

I have taken a careful note of what Deputy Lenihan said on the question of whether it might be advisable to specify a commencement date such as 1 January next. I will look at it but I do not want to delay the commencement of the Bill because cases could arise. I would like to have it implemented as quickly as possible.

I thank Deputies for their excellent contributions which have been helpful and worthwhile. We will resume discussion of the matter on Committee Stage.

Question put and agreed to.


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