Tuesday, 4 December 2012
Topical Issues Debate
Periodic Payment Orders
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.
I thank Deputy Penrose for raising this important matter. As Deputies may know, the programme for Government has a commitment to legislative reform in this area. The commitment is to empower courts to make provision for structured settlements in circumstances where lump sums are currently awarded as a consequence of individuals suffering catastrophic injury because of the negligence of another.
In our legal system an award for damages, in other words monetary compensation, in personal injury cases is restitutory in purpose. It is the most common form of redress pursued in civil claims. The bedrock principle underlying the awarding of damages in our legal system is that the amount of compensation should restore the injured person, in so far as money can do so, to the position he or she would have been in if he or she had not sustained the wrongful injury.
In general, damages awards are paid by way of a single lump sum. Damages are awarded under two headings: special damages and general damages. Special damages are damages specifically claimed and proven to have been sustained in the circumstances of the particular wrong to the plaintiff. They cover pecuniary losses like medical expenses or loss of earnings, including loss of future earnings. General damages cover non-pecuniary loss that the law presumes follow from the type of wrong complained of. This loss includes pain and suffering, loss of amenities and loss of the expectation of life.
A one-and-for-all lump-sum award has a number of advantages. It is final, simple and allows the plaintiff to be flexible in deciding for himself or herself the order of priority in relation to his or her different needs and wants. This straightforward approach, however, often results in over-compensation or under-compensation. The calculation in court by reference to average life expectancy may bear little relation to the real life expectancy of the individual plaintiff involved. A claimant may die long before his or her expected time. In that event, the defendant cannot take back the excess of damages paid, and the excess becomes a windfall for the plaintiff's family.
The converse is that a plaintiff may live longer than expected. In that event, his or her damages may simply not be sufficient to meet his or her needs during the last phases of his or her life. This is likely to happen later in life when the effects of having insufficient resources will be particularly hard to handle. Out of excessive prudence, a plaintiff may become so concerned about exhausting the lump sum that he or she does not spend the required amount of money on their needs.
There are other variables we must keep in mind. Investment returns will depend on the person's investment strategy and the prevailing financial and economic climate. A plaintiff's needs may change from those assessed at the time of trial or settlement. The costs relating to care that were assessed at rates or values operative at the time of the trial date may increase substantially later on.
Judges do their best to ensure that a catastrophically injured plaintiff is adequately provided for, whatever the future holds for him or her. However, the pressure on judges in many cases to turn to what is in effect guessing what the future holds for the plaintiff is unreasonable. In this area, accuracy and legal certainty are important values. It is desirable to have a system of compensation that is better able to meet future needs as and when they arise.
To meet some of the difficulties of the current system and, in particular, to ensure that plaintiffs are safeguarded against the danger that at some time in the future their damages might be depleted, a new means of paying damages by way of periodic payments orders needs to be developed. This would allow the courts to structure awards or settlements in a more realistic way. It would provide a guarantee for a plaintiff that he or she will continue to receive regular annual payments for the duration of his or her life so his or her damages will never be exhausted.
The Deputy specifically referred to the work undertaken by the Working Group on Medical Negligence and Periodic Payments, under the chairmanship of Mr. Justice John Quirke. I welcome that work and acknowledge its importance.
On periodic payments, the working group recommended that legislation be enacted to empower the courts, as an alternative to lump sum awards, to make consensual and non-consensual periodic payments to compensate injured victims in cases of catastrophic injury where long-term permanent care and treatment will be required. The working group also recommended that periodic payment orders should only be made where the court is satisfied that continuity of payment under the periodic payments order is reasonably secure.
The viability of a statutory scheme for periodic payments requires the establishment of a financial infrastructure to ensure that continuity of payment is secure. In this regard the working group recommended that the State, through the agency of the National Treasury Management Agency, be empowered to provide injured victims with the necessary security for periodic payments, either by the provision of annuities to insurers and others or in such other manner as may be appropriate. Alternatively, it was recommended that consideration be given to the introduction of a statutory scheme whereby payments made under periodic payment orders will be statutorily protected and guaranteed.
The NTMA has recently concluded an actuarial review on the feasibility and cost-effectiveness of the State acting as an annuity provider to insurers and indemnity providers in personal injury actions to enable compliance with the security-of-payment principle. The NTMA report is currently being considered by my Department in consultation with the Department of Finance with a view to the development of legislative proposals by my Department. Subject to the outcome of these consultations, which I expect will conclude shortly, I intend to bring to Government for its approval in the coming weeks concrete proposals for the preparation of the scheme of a Bill to amend the Civil Liability Act to give courts the power to make periodic payment orders in appropriate cases.
I regard the enactment of such legislation as of particular importance. I very much appreciate the comments made by members of the Judiciary underlining the need for this matter to be adequately and fully dealt with by this House. I hope we will see the legislation enacted during 2013.
I thank the Minister for his comprehensive reply and for taking this matter on board. I am concerned about cases where plaintiffs live for longer than expected and the imposition that would create where an award would be insufficient to meet their needs. That can put a lot of pressure on parents and others concerned.
In any such legislation, provision should be made for the appropriate indexation of periodic payments. The working group recommended that this should include the introduction of earnings and cost-related indices which would allow periodic payments to be index-linked to the level of earnings of treatment and care personnel and to changes in the cost of medical and assistive aids and appliances. That would ensure plaintiffs were able to afford the cost of treatment and care into the future.
The working group also recommended that the Central Statistics Office is uniquely qualified to compile and maintain the indices required in this regard. It is important that these matters should be taken on board. I thank for Minister for his reply. I look forward to this legislation whose passage, hopefully, will be facilitated by all parties in the House. The Judiciary has been active in this regard but quite restrained and eager that the Legislature would act in an area where long-standing recommendations have already been made. When this legislation is brought forward, it will enhance the Minister's standing by ensuring an issue of such import is accelerated through the Oireachtas.
I regard this legislation as a priority matter of great importance. It is evident that a statutory scheme is required if periodic payments orders are to become a reality. This is clear from the work done by the working group. Further additional work was required in the context of how we ensure necessary security for the long-term viability of periodic payments, which has to be a key element of any legislative proposals. There is little point in putting in place a structure which facilitates the making of such payments unless it is ensured that those payments are secured into the future. This is one of the issues, among others, which is being examined. The reality is that there is no financial product available to insurers in this area at present. A new financial infrastructure will be necessary to make the legislation workable. This is quite a complex area involving a whole range of issues that need to be addressed. Very careful work is required to ensure that any legislation enacted meets the required objectives.
I want to assure the Deputy, and members of the Judiciary who quite properly raised the importance of this issue, that this is a matter the Government intends to address. It is my objective to ensure the legislation is enacted during 2013.