Stephen Donnelly (Wicklow, Fianna Fail) | Oireachtas source

I move amendment No. 9:

In page 12, between lines 35 and 36, to insert the following:"(3) The Tribunal shall be entitled to award aggravated damages in circumstances where the Tribunal determines—

(a) that a claimant has been cross-examined in an unnecessarily aggressive and/or adversarial manner by a respondent, or

(b) that the respondent advanced a defence that it knew or ought reasonably to have known was not justified by the evidence available to that respondent.".

While I hope I will be in a position to withdraw this amendment, I will make the case for it for the benefit of the House and those involved who are watching this evening's proceedings. As I said on Committee Stage, there were several hoped for advantages of the tribunal. One is that the women would have the option of having their cases heard in private as some of the cross-examination is on the most sensitive of issues. That is now an option. Some women may want to have their cases heard in public. A concern expressed to me was one of the things keeping the lawyers for some of the parties honest - "honest" is not the right word - but keeping some form of control on the level of cross-examination was that it would be in public and that the public and the media could be present. We all heard reports in the media about some cross-examination. I am not a lawyer, but to my mind it definitely crossed a line. As I said on Committee Stage, if a woman is on the stand and is being cross-examined in a cervical cancer case, and lawyers from the laboratories start bringing up her sex life and previous sexual activity, it seems to me that the implication they are trying to put forward is that somehow through having an active sex life it is really the woman's fault that she has cervical cancer. Maybe I am wrong and I hope I am wrong, but it seems like a reasonable jump in terms of what the labs were trying to establish. It is victim blaming at its worst. I think it is outrageous. Some of those involved in such cases have said they are concerned that because the media will no longer be in the room, the cross-examination could be worse. Therefore, as well as providing the option for women to have their cases heard in private, I want to make sure that sort of despicable and low cross-examination is not tolerated in private session. Obviously, the laboratories have a right to defend themselves because the women and their legal teams will be trying to establish negligence: that is the point. However, I do not believe they have the right to pursue women in that way. I think it was very low.

The amendment tabled is a mechanism which would allow the judge or judges in the tribunal to award additional damages to the woman if the judge believes the labs have crossed the line through a mechanism of aggravated damages. The Minister took that on and made various points as to why that already exists in the powers. I hope to be able to withdraw the amendment. I certainly do not want to force a vote on it. On Committee Stage, the Minister undertook to examine the principle of aggravated damages and if a reasonable level of cross-examination and reasonable and dignified strategies of cross-examination could be wired into the rules and the conduct. I take in good faith the point made by the Minister on Committee Stage that the legal powers to award aggravated damages in these cases remains with the tribunal. I asked a few lawyers about that point afterwards and while they agreed with the Minister that this power is open to a High Court judge it is used very rarely. The sense I got - this is not my area of expertise and I am not a lawyer - was that quite a serious cross-examination, which may cross the line to which I have referred, would be allowed in the High Court without aggravated damages being awarded. How does the Minister believe the legislation before the House or the additional rules of conduct etc can be set up to ensure the lawyers representing the laboratories, and certainly any lawyers representing the State if it is involved in defending any of these cases, are not allowed to engage in this level of victim blaming and that if it starts it can be shut down very quickly?

See this speech in context