Dáil debates

Thursday, 25 March 2021

Civil Liability and Courts (Amendment) Bill 2021: Second Stage [Private Members]


6:35 pm

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail) | Oireachtas source

The Government supports this Bill, as the Minister of State told us earlier. I support it as a member of a Government party and personally. My then colleague, Billy Kelleher, now an MEP, introduced this Bill in the last Dáil and I spoke in support of it on that occasion. The Minister, Deputy Michael McGrath, introduced and took the baton forward on the Bill in the last Dáil and I commend his work on it.

There can be no doubt that the consequences for those who perpetrate fraudulent claims should be grave. Consequences should apply and the fact somebody can make an exaggerated or entirely bogus claim with no consequence is not acceptable. We heard the Minister of State particularise the measures that are in place at the moment for dealing with such claims.

There are a couple of things that are useful to reflect on in the context of the Bill. One is that in the Civil Liability and Courts Act 2004 there are already provisions – I think in sections 25 and 26 – that provide for it to be an offence for somebody to mislead the court. Every personal injury claim that is submitted to a court process requires an affidavit of verification where somebody has to swear on affidavit that they are telling the truth. It is important to note there are existing protections and precautions within the system. It is true, as the Minister of State referenced, that costs follow the event. That means in a civil case that if one loses, one pays. It is often said there is no consequence and people who lose do not pay. Often the reason they do not pay is they do not have anything to pay with. That is not an endorsement or excuse for somebody offering a fraudulent claim but it puts some context around the provisions. There is already a provision and costs go against the losing party. The question is how that is enforced. Does a sheriff go after somebody and pursue them to their home, if they have one, and take the car, vehicle or whatever assets they may have? Often they are people of little means. There is that practical issue to consider.

I support the Bill and I commend and see exactly where the Deputies are coming from in introducing it. Everybody in this House and this country would be against fraudulent claims. However, it is important to put some context on it. There is a narrative that has emerged in recent years and has been, I suggest, largely driven by insurance companies that every claim is fraudulent and everybody who walks up the steps of the courts is on a mission to defraud the taxpayer, the insurance company or the small business. That is not the case. We have heard already from other Deputies that it is a very small minority of claims that fall into this category.

It is also important to reflect that the foundation in our law for this type of claim goes back to first principles. These are important principles of employee protection, consumer protection and, in many cases, environmental protection. A century ago, coming out of the industrial revolution it was seen as acceptable to have workers, often from children up, spend their entire lives working in grimy pits and factories. They were in workplaces with no health and safety, no regulated breaks or working time and no protective measures. If somebody fell dead on the production line, they were effectively swept off the floor and replaced quickly. That might be an extreme case but there was no protection and no recourse if somebody was injured in a workplace accident or, indeed, if somebody brought a faulty product. A famous case where the law was changed concerned a young schoolgirl in a nightdress which went on fire in front of a fireplace because it turned out to be made of flammable materials.

Another landmark case was Donoghue v.Stevenson, 1932, which anyone who studied law in the last 90 years will be familiar with. It is often referred to as the tale of the snail in the ginger ale. It is the foundation of the modern tort of negligence. Effectively, that case was about a woman drinking a bottle of ginger ale and, to her horror, when she opened it, began to drink and had consumed half of it, she realised it was so putrid it had snails growing and living inside it. Snails are disgusting things to find in one's ginger ale but one could get worse: carcinogenic substances, cancer-causing materials and all kinds of hazardous materials in a product one has ingested, consumed, bought or had put upon one. It is reasonable to say one should be able to bring a claim in those circumstances and have right of recourse and redress. The manufacturer of a profit is the big fish in this. It is usually the small man or woman on the other end of these situations and they should have some right of reply and redress and be able to litigate that, if necessary, before the courts. It is important to hold that context. Many of the types of actions that go before the courts vindicate laws we make in this Chamber, that our predecessors made in the last decades or that have come from Europe. They are there for good reasons: to protect individuals and to protect the rights of the small man or woman against big corporations, be they employers, manufacturers of products or other things.

That is the principle point I want to make. Not everybody who brings a claim is bad, not everybody should be discouraged from bringing a claim and they are vindicating important rights that we and others have legislated for them to have. Society has progressed by giving those rights.

The other point has been made by other Deputies but I completely concur. It is that insurance companies would have us believe that every claim is fraudulent. There is an extent to which the media play into that narrative because we often read in the papers about shock-horror cases where either the case was thrown out of court or some huge award was given in circumstances where it seems a bit dubious or undeserved. We rarely read about the 99% of cases in between where people bring a legitimate cause of action, are rewarded an often modest sum and walk out of court no better off than they started.

Perhaps, however, the wrong is righted by some small award to compensate for what may have been a significant loss.

The insurance companies have major questions to answer. The suggestion is that fraudulent claims are the root of all evil in terms of the premiums that both small and large businesses and, indeed, individuals and consumers or anybody who bought or tried to get a car on the road in recent years, particularly younger people, have experienced. I know the blight of insurance premiums on businesses in my constituency. To suggest, however, that all of this can be laid at the door of the fewer than 1% of claimants who make fraudulent claims is to asking too much and going too far.

We in this House have done our bit, introducing successive items of legislation relating to this matter. We are now introducing with legislation to copper-fasten existing legislation. The Civil Liability and Courts Act 2004 is being supplemented with very similar provisions in the perjury Bill, which is passing through the House at the moment. The Bill with which we are dealing was brought before the House with absolutely good intent. I completely support and endorse the reasoning behind its introduction. It is, however, building on foundations that were laid 20 years ago in terms of recourse, penalties and sanctions.

It is time for insurance companies to get real and get on with actually dealing with this matter. I do not buy the argument that this is the cause of it all. The bottom line is that the profits of those companies are far more to do with it and that is really where the examination stops. This House and the political system in general have done their part. It is over to the insurers to bring premiums down and to look at the books and the reasons involved. It is important, however, that all of us in this House challenge the perceptions that exist in respect of fraudulent claims because, in my view, the companies involved are flogging a false narrative for their own commercial gain. It is very important that we do this while recognising the right and the legitimacy of the ordinary man or woman to bring a claim where he or she has been wronged. There is actually nothing untoward about that whatsoever in the vast majority of circumstances.


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