Catherine Noone (Fine Gael) | Oireachtas source

I welcome the Minister. I also welcome this legislation which will give necessary financial security to those who require life-long care and assistance following a catastrophic injury.I welcome this legislation, which will provide the necessary financial security to those who require life-long care and assistance following catastrophic injury.

The absence of a statutory alternative to lump sum payments has meant that the best option for a tragically injured person in the form of a periodic payment order, PPO, has not been available to date, unlike in the UK. In my job as a solicitor down the years, I dealt with many UK-based insurance companies that were regularly bemused by how we did not have PPOs. I welcome that these are now being introduced.

The Bill empowers the courts to make awards of damages in cases of catastrophic injury by way of PPO, thereby providing financial security for the injured person. I have a background in medical negligence cases and, more recently, regular broader personal injuries defence work. That the Bill is meeting the significant need for certainty is welcome.

I hope to see this much-needed Bill enacted as early as possible in 2017. However, it contains a number of slight limitations. I shall elaborate on them shortly. In addition to giving the courts power to award damages by way of PPOs, the Bill will set out principles regarding the security of PPOs, provide that they shall be subject to yearly indexation, and amend the Insurance Act 1964, the Bankruptcy Act 1988 and the Taxes Consolidation Act 1997. It will also amend the Civil Liability and Courts Act 2004 to provide for formal orders of settlement and costs in personal injury actions involving PPOs. These measures stem from the recommendations of the report of the High Court working group on medical negligence and periodic payments, chaired by Mr. Justice John Quirke. The report was produced following an intensive policy analysis and consultation process involving various Departments, including the Departments of Finance and Health. Representatives of the insurance sector and the Injuries Board were consulted.

The Tánaiste has gone through the Bill's provisions. Section 51H is crucial, in that it defines "catastrophic injury" as meaning "a personal injury which is of such severity that it results in a permanent disability requiring the person to receive life-long care and assistance in all activities of daily living or a substantial part thereof". This section also provides a definition of "activities of daily life" as including dressing, eating, walking, washing and bathing. It is clear that the persons at whom this legislation is aimed are vulnerable and do not need to have the financial worries that often go with such injuries. Every Senator has heard of cases in which lump sums were paid to individuals who might not necessarily have the best ability to balance their books and had run out of money. Such cases can be tragic. As such, the Bill's measures are welcome.

In deciding whether to make a PPO, the court must have regard to the best interests of the plaintiff and take account of the circumstances of the individual case, including the nature of the injuries suffered by the plaintiff and the form of award that would best meet his or her needs, having regard to the preferences of all parties. A court may order that a PPO will increase or decrease from a specified date by a specified amount - a stepped payment, as such - to cater for anticipated changes in the plaintiff's needs, for example, entry into primary, secondary or third level education, reaching the age of 18 years or changes to the care needed, including transfer to residential care.

The Bill only applies to catastrophically-injured people. Furthermore, a periodic settlement can be awarded unilaterally by the court for the costs of future care, but it can only be awarded for the loss of future earnings if there is agreement between the parties. This is a limitation in the Bill and we should strive to increase the provision. As a result of this limitation, a significant number of patients will still be paid by lump sum. If the injured party lives for a long time with a permanent disability, it is almost inevitable that the award will run out, consequently leaving the injured party in a vulnerable position. I would be in favour of a level playing field. An injured plaintiff should be able to choose between a periodic payment and a lump sum in all large cases involving substantial special damages. Perhaps that will not be possible in this Bill, but we should strive towards it. The Helmot case in Guernsey is an example. Cases of this type involve a sizable and permanent loss of earnings as well as a lack of support for dependants. Surely such cases ought to have the option of a fully periodic award that can provide for people's long-term needs without the threat of lump sums running out.

The current proposals may be too rigid and we could work towards improving certain points in the coming years. There is no logic in allowing future care costs while permitting a defendant to veto a PPO in respect of lost earnings. Why would loss of earnings not be routinely compensated by periodic payments? We are familiar with old age pensions, permanent health insurance benefits and disability pensions, all of which are paid periodically. The objective is to strike a balance of fairness. We must also be wary, in that the State Claims Agency and insurance companies will want to restrict the use of periodic payments as much as possible. This Bill does that, but we as legislators must take a more balanced view and ensure that the consumer does not bear the brunt of this legislation.

I welcome the Bill and commend the Tánaiste and her officials on their work in that regard.