Alan Kelly (Tipperary, Labour) | Oireachtas source

I move amendment No. 11:

In page 12, between lines 26 and 27, to insert the following: "(3) (a) Notwithstanding subsection (2), the Tribunal shall assess and make any award for general or special damages on the basis of a single lump sum award or a provisional award as chosen by a claimant under this subsection.

(b) Where the Tribunal is of the view that there is a possibility that a claimant, as a result of the wrong by reference to which an award falls to be made, may suffer particular serious consequences in the future, the Tribunal may make an award (“provisional award”) calculated in accordance with subsection (2)but assessed on the assumption that such serious consequences will not occur, identifying those consequences and specifying the period within which the claimant may apply in the event of such occurring.

(c) Where the consequences referred to in paragraph (b)do occur, the claimant may apply for a further award, in accordance with the terms of the provisional award.

(d) A claimant shall choose, on making a claim to the Tribunal, whether she or he is seeking a single lump sum award or a provisional award. A claimant may, at the discretion of the Tribunal, alter her or his choice up to the commencement of the hearing of her or his claim.".

This is an important issue. The amendment relates to the fear that some women who will be diagnosed and treated face the risk of the cancer recurring. Cancer recurs and, unfortunately, statistically in many cases it recurs within a short period. The first five years are the biggest risk. It can happen later but within five years is common. If a woman takes her case to the courts, she knows there will be finality to the decision and if she suffers a recurrence later on, that will be it. That is the court system and she will not be compensated. That is unavoidable in court but it is not unavoidable at a tribunal and we have precedent for it. Statutory provision is being made for a new type of forum, that is, the tribunal operating to the practice and procedure of the High Court but free to make its own rules. It provides for cross-examining witnesses and a range of other measures. Why can it not provide, as the hepatitis C tribunal did, for all awards to be made as interim awards so if that if the cancer recurs, the woman can return? Unfortunately, in this scenario there will be cases where health outcomes will deteriorate significantly and those women will be locked out of seeking further damages at the tribunal.