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

I am glad to have the opportunity to contribute to the debate on this Bill. I will declare my interest. I am a barrister who represents people injured as a result of negligent acts by other people. One would think those unfortunate beings were the only people who contributed to the increase in the cost of insurance. Let me be clear. People are entitled to recover compensation when they are injured, be it in terms of public liability, motor insurance or employer's liability.

I have three daughters for whom the cost of insurance is an issue. The cost of claims and everything else are also issues. However, in that context the PIAB has contributed to a reduction in the cost of claims. It has provided a fast and inexpensive way of resolving claims for personal injuries where liability is not disputed. However, we must not forget that there are other contributors to the cost of claims. The blame for the increase in the cost of insurance seems to be laid on the backs of people making claims. In terms of value and costs, it might be a component part but there is not a word about the conduct of insurance companies. Have we all forgotten the losses that arose from the way some of the insurance companies conducted their business? Many levies are being imposed as a result of this conduct. I would like to know if anybody has determined how much we pay in levies. We are still paying a levy as a result of what happened to the PMPA, Quinn Insurance and, in recent months, Setanta Insurance. Nobody ever mentions these levies on our insurance policies.

We should be fair and honest and put everything on the table, including how much the levies cost.

They are certainly significant and some of them have been going on for many years. Let us be clear about that.

Of course, insurance companies are engaged in a race to the bottom. I remember people getting vans insured for €250 or €300. That was never possible. What happened? Some of those providers went out of business and other people were left carrying the can. Insurance firms were competing against low prices that attracted customers, but now somebody else has to resolve the situation. In July the Minister of State, Deputy D'Arcy, put through a Bill to compensate people affected by Setanta Insurance. Let us put everything on the table. A very one-sided view of life is being taken. The insurance companies are certainly winning the PR war. Everybody has bought into their propaganda, but I do not. As somebody who acts in the area, I can attest that insurance companies are not soft touches.

I agree with Deputy Kelleher on the need to root out fraudulent or exaggerated claims. They have no place in this. However, there are penalties for them. Under section 26 of the 2004 Act, where there is an exaggerated or fraudulent claim, the court has power to refer the matter to the Director of Public Prosecutions. The courts are independent. Some Deputies seem to want to take over the role of judges. Is that what is going on? We are very precious in this House about ensuring nobody trespasses in here. The Judiciary is also independent in its functions, rightly so. Having three daughters in their 20s I am all in favour of cheap insurance for young people, but let us have all the facts on the table and let us be clear. Those penalties are in place. They are always a threat. Applications are made and cases are rightly dismissed. In recent months, many cases have been quite properly dismissed. That is a matter for the courts. Once the courts make that determination that is the end of it.

Let us be clear on a few things. I know all about the Personal Injuries Assessment Board, PIAB, application. An applicant sends off the form and his or her medical reports. It would be a very foolish client who did not send his or her medical reports in, because nothing happens without them. The big problem is at the other end, with the respondent, who could be an employer, an insurance company in the case of a car accident, or anyone involved in a public liability case. If they do not submit a medical report, things become bogged down. I support this measure, which provides for a penalty to be applied if somebody does not take a step.

The Minister knows the law. She did not say that is mandatory. That is a matter to be taken into account by the courts. We cannot trespass on the independent domain of the court. I will always uphold that because I have no right to do otherwise. It is constitutionally guaranteed. Someone may start shouting, saying the Minister did not go far enough and it should be a €500 or €10,000 penalty. We cannot do that. The Supreme Court rightly laid down the law in the 1960s. We can go as far as laying out the policy and legal framework and the courts must interpret that.

Of course, certain types of injuries are excluded. If someone has a wholly or mainly psychological injury, no assessor is in a position to make a determination on it. It would almost have to be determined by oral evidence from the individual concerned and from medical people. As such that is rightly excluded. How could an assessment be made of a psychological or psychiatric issue just by reading two reports without seeing the claimant, thereby deciding the claim is worth €10,000 or €15,000? It does not work like that. The big claims are for medical negligence, and that is also excluded under the old Act. A significant cohort of claims fall outside it. Moreover, it only operates when liability is admitted. There are nine months in which to make a determination. When the award is issued, both sides have 30 days to accept it or reject it. If one side rejects it a certificate of authorisation issues. I believe section 50 comes into play.

I support fully the Bill. I want to see costs curtailed. I have no problem with that. However, it is about time we took account of the levies we carry from insurance companies. Their part in the costs should not be forgotten. I can guarantee that they account for between €50 and €100 of the cost of a policy. That is significant.

I refer to the book of quantum. I agree with Deputy Kelleher and the Minister on this. I have no problem with reviewing that every three years. I am not a solicitor, but most solicitors advise that if the figure offered is in close proximity to the book of quantum a claimant would be foolish to go to court. The award listed in the book of quantum acts as a level. Let us say a claimant is awarded €20,000. That award is not the walk in the park that people say it is. The book of quantum's listed award is used as a tender by the insurance company. If the claimant gets €19,900 in court the tender has not been met, so the claimant has to pay not only his or her own costs but also those of the other side. There is, therefore, an added incentive to accept awards in line with the book of quantum. I forget the number of claims, but more than 100,000 must have been processed since PIAB was established. The number must be 150,000. Those things are all important.

Let us root out fraudulent claims. Many insurance companies have recruited ex-gardaí and former detectives and are thankfully getting to the bottom of them. That is important. I support that every step of the way but I want a full picture, not just a selective one. I have met people who have suffered whiplash injuries and had their claims dealt with 15 years ago. They are undergoing physiotherapy to this day. That is whiplash, the supposed Mickey Mouse injury that a lot of people talk about. It is all right if someone is ready for an accident and set up for it, but it is different if something happens unexpectedly. A whole thesis has been written on this.

Compare Ireland with any other jurisdiction. Thankfully, we have a written constitution. Other jurisdictions have laws that can be changed, and people's rights diminished, at the stroke of a pen. Thankfully, that cannot be done in this country. Long live our Constitution. If we want to amend it we can do so, but it is the people who amend it, not any individual, group or lobby.

Very often things are slanted in favour of insurance companies at various stages of the process. There was a big issue here which the Minister has moved to deal with. I forget what section this concerns. I refer to the Statute of Limitations. That is of major significance. I will use as an example my friend, Deputy Broughan, who arrived here on the same day as me. Let us say Broughan Limited was in charge of the place where I suffered an injury and I sued the company and it turned out the company was really Broughan and Kelleher Limited and I only found out after initiating the claim and did not name them in time. I might wish to name Broughan and Kelleher but my two years have elapsed and my claim is terminated.

Let us say my legs were broken and I suffered with my back, but the two-year period was up under the Statute of Limitations. It was a big issue which was put before the Supreme Court in the Renehan case in 2015. The Supreme Court stated it was an injustice, but the argument was about whether the extended time period applied to Broughan or Broughan and Kelleher. The Minister is now saying it does not apply to Broughan but that it does apply to Broughan and Kelleher because one has only found out, which is fair. That is adopting section 2 of Statute of Limitations (Amendment) Act 1991 where one discovers or reasonably ought to have discovered. If one only discovers at the end of the process, one should not be penalised and the dis-application rule should apply in that context. I say, "Well done," to the Minister and her officials because it was perpetrating an injustice. That is an important point.

The preliminary notice to the person against whom liability is alleged but where the application is not accompanied by a medical report is only fair. How would one issue it, if there was no medical report? It is an important point.

I will not speak about electronic documents. I am not a supporter of them because I always like to see the bit of paper in a person's hand. That is just me, but so be it.

Section 7 amends the Statute of Limitations, while section 8 deals with the cost of proceedings where a claimant or respondent does not comply with a request of the assessors. It merely empowers the courts in that regard.

Deputy Kelleher's colleague, Deputy Michael McGrath, Fianna Fáil's finance spokesperson, will be happy to see the amendment to section 54 of the principal Act to provide that the board shall review and update the book of quantum every three years, or sooner if it is deemed necessary.

I note that section 10 extends the powers of the board to compel persons and bodies to provide information and documents. The board will then be in a position to obtain information from any person or body for the purpose of preparing the book of quantum. That is amazing, as Deputy Kelleher would agree. It should be forthcoming from every insurance company as it is in their interests to provide it. There should be no need for anyone to travel around the world looking for it. It should be stating, for instance, "You are wrong. Instead of €20,000, it should be €14,000." Let us get that information. It appears - perhaps I am misreading it - that obtaining such documents is the thrust of the amendment. In other words, the board would have to force me to furnish the information, which is mind-boggling. What do the companies have to hide? Perhaps it is their profits.

Ms Dorothea Dowling was instrumental in the setting up of the PIAB. I read some good articles by her lately in which she disputed some of the assertions being made by insurance companies. She was the person who was instrumental in and right at the heart of this process. As far as I can recall, Frank Fahey, then Minister of State at the then Department of Enterprise, Trade and Employment, introduced it in 2003. As I said, Ms Dowling has disputed some of the assertions made. I read her good, elucidating articles in the Irish Independent, in which she sometimes writes in the motoring section. They were well thought out. She takes issue, as I do, with some of the assertions made by insurance companies. It is time to drill down into their profits. Let us see if there is excessive profit-taking. Why did the Competition and Consumer Protection Commission have to enter their premises a while back to examine and take papers? Let us be clear on a few matters. It is not all one way. If we were to root out all of those involved, there is only a small cohort.

There are many people who have suffered genuine injuries and they are entitled to compensation. I will always stand with them. One might say it is self-interest, but it is not. I have also acted for insurance companies. Let us be clear: as a barrister, I could be with you today and against you tomorrow. That is the nature of the business. We are objective. In that regard, I always champion the rights of people to be properly compensated.

I note the powers of IBEC and ICTU to nominate members of the board. I suppose it is a sop to that great other Minister, Deputy Ross. He will be happy to see it because it will allow the Public Appointments Service system to make sure. I have no issue with that either. My party will support whatever has to be done.

The maximum period of service on the board will be ten years. That is also fair enough because we all go stale. However, the Minister, Deputy Humphreys, will never go stale because she is as fresh in representing the people of County Monaghan as she was on the first day, but some of us do go stale.

I note that the Minister cannot go the full way on a number of the issues raised in the original report on which the Bill is based. She cannot go the full way on some of them because they may well border on being unconstitutional. Commentators might ask why the Minister did not do this or that, but I understand clearly why she could not do so. The working group on the cost of insurance made several recommendations, but the Minister had to sieve them out. The Attorney General and his office had a detailed look at them. As a matter of fact, when I saw some of them initially, I was taken aback and figured that they would not see the light of day in the legislation and they have not because the Minister's function is to bring forward legislation that is constitutional. She has reached that threshold.

The Labour Party strongly supports the Bill. I merely state there are two sides to every story. The Judiciary is working hard to root out anybody who is undeserving or tries to milk the system, engage in the making of fraudulent or exaggerated claims. We all want that to happen. As there is already the power to do so, let us get on with it. For those who are genuinely injured, let us not always make them the villains of the piece.

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