Willie Penrose (Longford-Westmeath, Labour) | Oireachtas source

I thank the Ceann Comhairle for selecting this matter for debate on the floor of the House this evening and I thank the Minister, Deputy Shatter, for attending personally in the House to address this important issue which has significant implications for many people.

As the House will be aware, where a person is injured in an accident, which event arose as a result of an accident as an employee, as a result of a road traffic accident or under the auspices of the occupier's liability principles, and the injured party establishes liability against a particular person or company, then that injured party is entitled to recover compensation by way of damages. In deciding the amount of compensation in a civil claim, the courts resort to two headings of damages - general damages and special damages.

General damages is that part of the award which compensates a person for the injury up to the date of the court hearing and also as to the future, which is at best a guesstimate since the effects of the injury can be borne by the injured party right through until he or she dies. This is, therefore, encompassed by a lump sum award which, despite public perception to the contrary, is not unlimited as there is a court defined cap on general damages in civil claims.

The second heading of an award is special damages which encompasses various items which can be calculated with reasonable accuracy with the aid of expert evidence provided by an actuary. Such items include the loss of earnings, both past and in the future, and can be based on the likely future earnings and the possibility of not always being in employment as is currently the position, and this must also be factored in to this estimate. Special damages also includes future medical expenses and in the case of very serious physical injuries, the cost of equipment, the modification of a dwelling house, the requirement for an automatic car, the requirement for home care help, and the cost of specific medical assistance and aids.

Under the system as currently constituted in the Irish jurisdiction, it means that awards in these types of serious cases consist of a lump sum which is a once-off amount of money paid. In so far as the amount awarded in respect of special damages, this is especially problematic as the amount for special damages is intended as a capital sum which, if invested wisely, would yield enough annual income for the person so injured to pay his or her medical and other expenses and live comfortably in the context of his or her injury.

The Judiciary has been active and vocal in this area for the past three years or so. Mr. Justice Kearns, President of the High Court, established a working group on medical negligence and periodic payments under the chairmanship of Mr. Justice John Quirke, who is now retired. Indeed, the first module of this report concerning periodic payment orders was presented in October 2010. This has been available for the past two years. Notwithstanding the urgings of the members of the Judiciary in recent months, most notably Ms Justice Mary Irvine, who has taken a number of these cases for ruling, to bring forward appropriate legislation to implement the recommendations of this report, nothing appears to have happened today, and I hope the Minister will change that this evening.

The House will be aware that since 2005, in England and Wales, personal injury awards in catastrophic injury claims may be based on structured settlements or periodic payments. A structured settlement is, in effect, an annual payment or annuity purchased from an insurance company to meet the obligations in an agreement to provide periodic payments. Periodic payments are the payments made as a result of a personal injury claim which are made by way of a future stream of payments.

The executive summary of the working group makes 13 specific recommendations. The group was unequivocally clear that a single lump sum award is inadequate and inappropriate in such cases where a plaintiff has been catastrophically injured in the long term or, indeed, permanently, a where this person will require ongoing care and medical treatment in the future. Therefore, I urge that legislation be enacted to empower the courts, as an alternative to lump sum awards of damages, to make consensual and non-consensual periodic payment orders to compensate injured victims in cases of catastrophic injury where long-term permanent care will be required, for the cost of future treatment and future care and the future provision of medical and assistive aids and appliances.

The order should apply to the whole or part of an award in any case where, having regard to the nature of the injuries in respect of which the award is being made and the circumstances of the person to whom the award is being made, the court considers it appropriate in the best interests of that person that such order should be made, provided that the parties have been given an opportunity by the court to make submissions and be heard in full on the relevant issues. The court should be empowered to make periodic payments orders to compensate for future loss of earnings only with the consent of all of the parties to the relevant claim.

I look forward to the Minister's reply. This is an innovative area in which I expect the Minister will bring forward legislation as quickly as possible.

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