Dáil debates
Wednesday, 5 October 2022
Personal Injuries Resolution Board Bill 2022: Second Stage
5:32 pm
Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source
It is now nearly 20 years since the legislation that established the Personal Injuries Assessment Board was enacted by the Houses of the Oireachtas. If we look back to 2002 and 2003, we can see there were three reasons the Houses of the Oireachtas decided we wanted to establish a new statutory body to assess personal injuries. At that time, there was a great desire to have insurance reform. There was very significant concern about the high cost of premiums, particularly in respect of road traffic insurance. The Government and Oireachtas at the time wanted to ensure the cost of those insurance premiums would come down. It was believed that by establishing a more efficient assessment process, this would occur. Also at that time there was significant concern, as has been highlighted by the Deputies Healy-Rae, in respect of fraudulent claims and people who had played the system. One of the first objectives was to reform the insurance system that operated. The second objective of the Oireachtas in establishing PIAB was to ensure the system would operate faster. Many people who would bring a claim had to wait years before their claim would be assessed and determined. By having an assessment board, individuals who had claims would be able to go before the board and have their claim assessed quickly. The third purpose of the Personal Injuries Assessment Board was to cut down on legal costs. There was too much money being spent on legal costs and there was a desire on the part of the Oireachtas to ensure the claimant would get the money, as opposed to the claimant being involved in a lengthy process that would involve lawyers getting a disproportionate part of an award or a percentage on top of that.
When we look back at the three objectives, there has been significant achievement on the second and third. We have seen the system speed up significantly. One now can bring a claim before PIAB, have it assessed quite quickly, and if one wants to accept that recommendation and the defendant is prepared to accept it, there can be a very prompt resolution of the claim. There has also been a significant reduction in legal costs, not just in terms of the cost of cases that go to the courts but also in costs of claimants who bring their claim exclusively through PIAB. However, there has not been enough success in respect of the whole issue of the first objective of insurance reform. That was to ensure that as a result of bringing in these measures for efficiency, the cost of insurance premiums would come down. We established PIAB. We have established the Judicial Council. We now have judicial guidelines. We really need to see insurance premiums coming down. Insurance companies need to play their part in ensuring the requirement of the public to be able to get premiums at cheap prices are available. When we look at the reforms, it is surprising we have not seen reductions in the premiums, which I know the Minister of State, Deputy Calleary, and the Government want to see.
As Deputy Danny Healy-Rae emphasised very clearly, it is important to point out that PIAB is not taking over the function of the courts. PIAB is not a body that administers justice under Article 37 of the Constitution. It is not a court as provided for under Article 34 of the Constitution. The reason PIAB has succeeded is that it has not gone down that route, or rather the Oireachtas has not permitted it to go down the route of trying to become a form of the administration of justice. The reason it is not the administration of justice, of course, is that individuals who go before PIAB and get their assessment do not have to accept it. That applies for the defendant in any claim as well. They have an entitlement to go to the courts. As long as that exists, it will not be regarded as being the administration of justice.
We saw last year what can happen where a statutory body goes too close to administering justice. The Minister of State will be aware of the case of Zalewski which was heard by the Supreme Court and concerned the Workplace Relations Commission. That just managed to obtain a finding from the Supreme Court that it was just on the right side of administering justice. We have to be very careful, if we are going to delegate responsibilities from the courts to statutory bodies, to ensure that if those bodies are going to administer justice as is permitted by Article 37, they have to comply with fair procedures. We saw in the Zalewski case that the Supreme Court indicated there were a number of procedures being operated in the WRC which were not fair and did not provide persons who claimed they were unfairly dismissed fair procedures.
The other interesting part of the legislation the Minister of State is bringing before the Oireachtas today is that it is not only changing the name of the Personal Injuries Assessment Board to the Personal Injuries Resolution Board but also that there is a real purpose behind that. We are going to have a new section in the legislation which deals with mediation. A person will come before what will be called the resolution board. They can be given an assessment and will also be informed of their entitlement to have their claim mediated. Again, there is no mandatory requirement on a person to go down the mediation route, but I note from the legislation that the Personal Injuries Resolution Board will provide mediators.
One thing I am not aware of from reading the legislation, which the Minister of State might want to think about on Committee Stage, is the extent to which those mediators will come from within the resolution board or whether they will be hired from outside the resolution board. I welcome the fact there is going to be a mediation process available. It is preferable in any dispute in any walk of life that people should be able to try to resolve their differences without the necessity of having to go to court. The advantage of a mediator is that he or she will come in, does not have the ability to impose a settlement on the parties to a dispute but can give a recommendation to those parties as to what the mediator thinks should occur.
The only thing I would say, however, and I think the Minister of State should take this into account, is that there is some requirement to ensure a mediator who is working for the Personal Injuries Resolution Board has a legal knowledge and awareness of how that case will be dealt with if the claimant decides not to go down the route of accepting the recommendation but rather to go to court. To be an effective mediator, one has to be able to tell the parties to the dispute the likelihood of their claim succeeding or failing if they go to court and the nature of the damages they are likely to be awarded should they go to court.
There has been a massive campaign in recent years criticising people for bringing fraudulent claims. That is absolutely correct. Anyone who brings a fraudulent claim should be punished. However, the vast majority of people who bring claims are legitimate claimants.
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