Joe O'Toole (Independent)

This is fundamental to how the PIAB will work. There must be a clear understanding of how this legislation will work. The Bill is the result of a demand from every lobby involved in this area. That includes business people, representatives of workers, representatives of people who are buying insurance, whether they are young drivers, people starting businesses or people just going to work, and the representatives of employers. Unions, employers, workers and consumers have sought this legislation.

Why have they sought it? Let us say this Bill has been passed and somebody has an accident in which they break a leg. They will then write to the PIAB and explain what happened in simple terms. I am anxious that people understand the simplicity of the system. The earlier debate showed that some who have spoken on the Bill have not taken the time to look at how it will work and it is important that they do so. The claimant will put in the claim. They will outline how the accident occurred, for example, they slipped or fell down the stairs in their place of employment and fractured their leg in three places. They will then explain that they will be out of work for X number of weeks which will cost them Y amount of money. Then they will attach their medical expenses and outline what the expected ongoing medical expenses will be and include the relevant documents. That is the basis of the claim – the accident, the loss of salary, medical expenses and any other out of pocket or incidental expenses that have arisen. It is that simple.

I spoke earlier about legal representation. A person can go to a lawyer and seek their help in filling out the form before sending it in. The reason there is no legal representation is that if a lawyer becomes involved, he or she will be dealing with it and will get the correspondence, including the cheque. They will take their payment out of the cheque before the claimant gets the money. That is the reason we speak of legal advice rather than representation. That is how the system works and it is crucial that it is understood.

My colleague, Senator Coghlan, raised a specific point about the settlement. As was said earlier, 90% of cases never go to court, notwithstanding the lawyers telling us, with regard to this legislation, that there will be no public settlement. They are settled on the steps of the courts. As far as I know, all these cases are settled without acceptance of liability. The defendants say they have listened to the case and they will pay the money. There are many reasons for that, one of which is that in many cases the person who puts in the claim has no money. Let us say they are claiming €9,000 or €10,000. The insurance company and its advisers know that the company will win the case but that it will take three or four days in court. The cost of running the case is €60,000 even if the company will not be obliged to pay the €10,000. The company is better off making an offer of €7,000 or €8,000 and finishing the case, but it will not accept liability. That is one of the reasons for not accepting liability. Another reason might be that people are unsure. Nobody will accept liability in the PIAB when they are faced with the possibility that the case might still go to court. They cannot and they would be mad to do so. Legal advice would not allow them. That is the reason Senator Coghlan's amendment cannot be accepted.

Senator Coghlan made another crucial and fair point. He asked why the insurance companies would settle. The Tánaiste said yesterday that they would settle because they are paying for the PIAB and they would not continue to pay for something that does not deliver. That is just a minor reason. I will outline the main reason for settling. They will look at a case such as the one I outlined earlier. They will contact the owner of the business, the employer or the people involved and find out what happened. The insurers might be of the opinion that if they go to court, they will lose the case because the claimant has a fair claim. People must focus on that point because insurers make this judgment every time.

The insurers always ask: "Will we win or lose this case?" The possibilities are that they will lose it, win it or it is a 50/50 case. If they believe they will lose it, why would they go to court? Why would they want to settle rather than go to court? The reason is, as Senator Quinn pointed out, that 70% of cases in this jurisdiction attract barristers. Let us say they go to court, rather than settle, in a case which they have assessed they will lose. The first thing they will have to do is pay two firms of solicitors. That is two people. Then they have to pay two junior counsel and two senior counsel, which brings the total to six people. The next item is to secure medical experts. Unlike lawyers, there is no limit on the number of medical experts. There could be four medical experts to give evidence in a case. The one certainty is that for every medical expert one side brings forward, the other side will bring forward another. This all adds up.

I have spoken to people with huge experience in this area. All sides tell me that any one of them can go down to the courts before the start of a hearing of an injury case, look at the witnesses and, without knowing the case, point out the witnesses for the claimant and the witnesses for the respondent. That is how clear it is; they know the ways of thinking. It is a game and the claimant is in the middle, thinking that these famous people are coming to the court on his or her behalf when, in fact, they are just earning a living at the expense of all the other people. That is what we are trying to avoid.

The insurance company can avoid paying the costs of up to ten medical experts, two or more senior counsel, two junior counsel, two firms of solicitors and all attendant costs if they lose the case. Why would an insurance company go to court when it believes it will lose the case or that the assessment is within what was projected and that it could afford to pay much more while still saving a huge amount of money? The only reason for doing so is if the case is fraudulent. This is the meat of the issue.

We should not lose sight of the reason we began this. It is to ensure that the genuine claimant gets his or her money, the fraudulent person is exposed and personal injury lawyers do the job for which we respect them, which is to expose fraud and to fight the case where the insurance company is wrong. The effect of the PIAB is to clear away the cases that are clogging the courts and taking up to six years to reach a hearing. The person with a genuine case puts in their claim, the insurance company accepts its validity and writes the cheque. The PIAB moves on to deal with the next one.

It would hamstring insurance companies if they had to accept liability before deciding to accept the assessment. The legislation could not work on that basis. I would like people to see the issue in that context. Senator Coghlan's argument was reasonable but it will not work in the wider context. It sticks a piece of metal in the flywheel and stops the whole thing moving, and the engine that drives it stops. The point Senator Coghlan made is correct, without goodwill the PIAB will not work. If people on both sides, whether the injured or the insurance companies, do not have trust and confidence in the PIAB system, then it will not work. If people must take the high jump or walk the gangplank by saying they accept liability, then it will not happen. Therefore, I do not agree with the amendments.