Wednesday, 13 June 2018
Civil Liability (Amendment) Bill 2018: First Stage
That leave be granted to introduce a Bill entitled an Act to amend the law relating to civil liability.
This is an important Bill, which I hope the House will fully support. Part 4 of the Civil Liability Act 1961 sets out the procedure for fatal injuries actions taken by next of kin. Such actions are taken to establish liability for a death that was caused wrongfully and, in some cases, to provide financially for the dependants of the deceased.
The law distinguishes between the measurable financial loss suffered by a dependant where the deceased was contributing to the income of the household, on the one hand, and compensation for mental distress resulting from the death of each family member on the other. Compensation for mental distress, known as solatium, is capped by statutory instrument by the Minister for Justice and Equality. In 2014, that was capped at €35,000. However, where medical negligence in the provision of treatment to a pregnant woman results in the loss of her pregnancy, solatium is not available. There is no compensation for a mother for mental distress on the loss of an unborn child. She may recover damages only for any injury to her own health. The other family members, including the father, are not regarded as having suffered any damage or loss.
According to section 49 of the Act, the law relating to civil wrongs applies to an unborn child for its protection in the same manner as if a child were born at the time, but only where the child is subsequently born alive. A person can sue for injuries suffered as a result of wrongs done to him or her while in the womb or in the process of being born. A person with cerebral palsy caused by difficulties in labour may recover damages under this rule but if those wrongs result instead in the death of the child, section 58 does not apply, nor does Part 4 of the Act. One purpose of the Bill is to extend Part 4 to provide both recognition and a remedy where family members who suffer as a result of the loss of pregnancy caused negligently can have some recourse.
This is a simple Bill. Where there is proven medical negligence, for instance, if a child is born with cerebral palsy, a personal injury claim can be made. There have been many of those cases. Where a child is born and dies subsequently, however, a fatal injury claim can be processed where there has been negligence. What this small amending Bill will do is address the anomaly where there is proven medical negligence and the child is stillborn. This is to allow the family to have access to modest compensation. I propose €75,000 in such circumstances.
I am bringing forward this legislation because of two people who are sitting in the Visitors Gallery, namely Derek and Mignon Underwood from Wexford, who approached me some time ago regarding their case. In 2012, they lost their child, Conor, who was stillborn as a result of proven medical negligence. It took them two years to fight their case. The HSE admitted negligence. It took another 21 months to deal with the matter. We all know what we are talking about when it comes to the State Claims Agency. It took 21 months, in a case where liability was admitted, for this issue to be dealt with. In that scenario, it took four years of fighting. In total, the family has been looking for justice following the loss of Conor for six years.
The Underwoods are not interested in this to obtain any form of compensation for themselves. They went through the courts and won in the High Court. It has been acknowledged that what happened to both of them was wrong and there was negligence. The reason I am introducing this Bill, which we will call Conor's law, is to ensure that no family that finds itself in the unique circumstance I have described will ever have to go through what the Underwoods went through and fight the way they had to fight.
We must provide a legislative basis to deal with this anomaly in cases where medical negligence has been proven. In that context, I ask the Government and other Opposition Deputies to support this short Bill. Furthermore, I would appreciate it if the Taoiseach could examine whether there is a mechanism whereby, through the Department of Justice and Equality, the Bill might be progressed in conjunction with other legislation.