Michael McDowell (Dublin South East, Progressive Democrats)

I am grateful to Senator Terry for tabling an amendment on this matter. I have done a good deal of private soul searching on the issue since the Second Stage debate, which was constructive and fair-minded. As a member of the legal profession I must be careful not to be swayed by arguments which are ad hominem or come from a specific point of view to the exclusion of the public interest.

Taking all of this into the balance, I have come to the view that there is merit in Senator Terry's proposal. The reason I have come to that view is, among others, that the State Claims Agency, which is located in the National Treasury Management Agency, has communicated with me to the effect that it believes the one-year period is, in the case of medical negligence cases, too tough a limitation period. The request to extend the period, therefore, has not just come from groups with what the cynics might think were vested interests or an interest in delaying legislation. The State Claims Agency is a body with no such interests and no axe to grind, yet it has communicated with my Department to state it is worried about the particular provision.

This is a measure which limits access to justice just as any limitation period limits access to justice. There are good reasons for limitation periods. Justice must be justice for the defendant as well as the plaintiff. In any civilised society there must be some point at which defendants can safely assume they will not be sued arising from an incident. This is in the interest of the common good as much as is access to justice. People must know they are no longer, so to speak, under threat.

However, with any statute, whether the Statute of Limitations 1957 or this Bill if enacted, I believe in limiting access to justice on behalf of plaintiffs. There must be strong, coherent and proportionate reasoning behind the limitation. We cannot simply decide it would be great for the insurance companies if the limitation was three months instead of three years because we are dealing with a balance of rights and interests and with different competing interests with regard to access to the justice system.

Although this Bill has gone through a drafting and scrutiny process in the Attorney General's office, it strikes me, when I think about the effect on medical negligence cases, there could be a question mark over its proportionality in constitutional terms, for example, where somebody in the rehabilitation hospital in Dún Laoghaire has one year in which to decide on these weighty matters.

I am not extensively lobbied by the Tipperary Bar association, but its parent body, the Law Society, has also made the point to me that cases of medical negligence are complex and require time to establish the facts. I know from my experience as a barrister that even an enthusiastic solicitor seeking to marshall all the facts and get all the relevant reports will be hard pressed to get much of the material lined up so that the barristers can advise the client, if it is a case that requires advice, on who the appropriate defendant should be and on whether it was the anaesthetist, the surgeon or the hospital who was responsible for the medical catastrophe. Also, obtaining medical reports here frequently requires going outside the country and the laying out of considerable amounts of money.

I pay tribute to members of the legal profession who carry much of the slack in terms of undertaking to pay fees for consultants in cases where there is a considerable risk to themselves that nothing will come of it. Often one must arrange for one's client to be examined by somebody outside the country, arrange trips abroad and join a queue if the client requires examination by a busy specialist in the United Kingdom or wherever. One cannot just click one's fingers and get an instant report from such a person, even in an ideal world.

Having said all that, the reason I find Senator Terry's reasoning attractive is that if we have a general limitation period, it must be generally understood. It must be understood by everybody as a general feature of our law.

I fully accept that Senators Jim Walsh and Mansergh are suggesting that I could introduce nuances to provide different periods and circumstances etc. Medical negligence cases can frequently be married to personal injuries cases. If a medical worker fails to notice that somebody has broken a leg as a result of a motor accident, the potential exists for two linked actions to arise from the same incident. In such circumstances, would it be a good idea for the person in question to have a long period in which to sue the doctor, but a shorter period in which to sue the driver? There might be confusion if different periods of time were provided for the various categories. It would be an artificial arrangement if the last gasp of the plaintiff was to sue the doctor, but not the driver, after 18 months had expired. There would be all sorts of unintended consequences.

I take Senator O'Meara's point that the purpose of the Bill is to reduce litigation. Practitioners who receive defensive legal advice may regard themselves as obliged to commence proceedings against the risk that they will be found negligent, three or four months later, for not having taken such a step. One has the worst of all worlds in such circumstances. On the face of it, one is attempting by statute to reduce litigation, but one is actually stoking the fires of defensive litigation.

I am confronted with a dilemma when I take all of these matters into account. Is Senator Terry's approach preferable to the other possible approach, which is to introduce nuances to these matters and to attempt to put in place more specific provisions in respect of particular circumstances? I am attracted by Senator Terry's proposal because it means it will be generally understood that everybody has to operate within a certain period of time. Her approach would mean that people will not say "I know there is some kind of complex law in this area and I am not quite clear which side of the line my case falls on".

A point made by Senator Jim Walsh also has a certain attraction. He wondered why we do not have a shorter period for small claims, which are not as serious. They tend to involve people who tripped or fell — they may have broken their wrist, for example — rather than patients in rehabilitation centres. A possible problem with Senator Walsh's suggestion is that it would turn small claims into large claims.