Ivana Bacik (Independent) | Oireachtas source

I welcome the Tánaiste to the House and echo Senator Conway's welcome of the passage through the Dáil of the sex offences Bill, which I look forward to being before the Seanad next week. I hope that the Bill's reform of prostitution law will be brought into effect swiftly, as per the justice committee's recommendation. I commend the Tánaiste in that regard.

On behalf of the Labour Party group, I welcome the Civil Liability (Amendment) Bill 2017. It has received a general welcome as a sensible and long-overdue measure that needed to be introduced in the interests of individuals who have suffered catastrophic personal injury. As the Tánaiste and others have acknowledged, there is real human tragedy behind the Bill's purpose. Any of us who has practised law will have encountered cases involving horrific injuries from time to time. They are reported on in the courts occasionally.

It is good to see the Bill finally. It is more than six years since the final report of the working group was published in October 2010. At the time, it was anticipated that this legislation would be introduced swiftly. Soon after the report's publication, parties to personal injury cases began to negotiate informal interim settlements involving periodic payments. The Tánaiste has acknowledged that more than 50 interim PPOs have been negotiated and made since 2010. However, the delay in introducing this legislation has caused serious problems. I am grateful to the Oireachtas Library and Research Service for documenting for us some of the impacts that the delay has had. We saw the creation of a special personal injuries list in the Dublin High Court following the publication of the working group report in anticipation of legislation being swiftly passed that would provide a structure for PPOs. However, six years passed. Last year, the president of the High Court, Mr. Justice Peter Kelly, stated that it was shameful that legislation had not yet been introduced to provide for a system of PPOs in a case involving a 13 year old boy suffering from cerebral palsy due to medical negligence during his birth. In 2016, the court finally approved an €8 million lump sum payment following a number of adjournments to see if periodic payments could be made.

The delay in the legislation's passage has had an impact.It is very good to see it finally but the delay does need to be emphasised. As we have said, it is clearly in the interests of those suffering catastrophic injury that this would be available to them. It has been available in the UK for many years already. The Minister has said that the purpose of the Bill is to secure the financial future of those who have suffered catastrophic personal injury. Clearly the idea behind the provisions is to take account of changing needs over time and to guard against what we have seen before with lump sum payments where people have had, for example, poor investment advice and have found then that the money provided for in the lump sum simply was not adequate to meet future needs. Others have rehearsed the disadvantages of the lump sum payments. I will not go back over those. They are set out in the working group report. I think we are all convinced of the need to allow for these payments to be made and for that reason we all very much welcome the Bill.

I note Senator Noone's comments about the definition of catastrophic injury and I was very interested to look at that definition. Senator Noone is right to say that this is something that deserves very careful consideration. I know the Minister has said that she and her officials have already given the definition a great deal of attention, and indeed it is difficult to achieve a satisfactory definition, but clearly this sets the definition of catastrophic injury at a very high bar - "a personal injury which is of such severity that it results in a permanent disability to the person requiring the person to receive life-long care and assistance". There may well therefore be others who would suffer injuries which we would describe in lay terms as catastrophic but which will not reach that high bar of necessitating life-long care. Perhaps in future legislation, I wonder if we can look at some way of achieving more flexibility in payment orders in those sorts of cases while acknowledging that clearly there are quite a number of cases, for example, cerebral palsy arising from negligence at birth, where it is clear that they will fit the definition of catastrophic injury provided for in the Bill.

Another issue that Senator Noone raised that I thought was interesting was about the loss of earnings. This particular provision requires written consent of parties. I note that is in line with the recommendation of the working group that there would be a consent requirement built in regarding compensation for future loss of earnings, but I would ask whether consideration was given to leaving that out? Why was that particular recommendation taken on board?

Given the long delay that we have had already, will the Minister say when the Bill will be commenced once it is passed? Is there any particular reason it will require a commencement order rather than coming into force on the day it is passed? I note that the Minister has said that amendments are being considered in relation to section 51O, which is to be inserted by section 2 and which will provide for the issue of "personal injuries actions relating to catastrophic injuries" and the timing of the application of the Bill. The new section 51O clearly says that:

This Part applies to personal injuries actions relating to catastrophic injuries—

(a) that are brought on or after the commencement of section 2 of the Civil Liability (Amendment) Act 2017, or

(b) in respect of which no final decision has been made on the date of such commencement.

The Minister has said that she is going to look at amending this section to cover the situation where courts have already made an interim award in anticipation of this legislation coming in. That is a good idea as there has been much anticipation that this legislation would come in and indeed a lot of court proceedings taken and people having expectations on the basis of that. I believe that is appropriate.

The Minister also said that she will be bringing forward Committee Stage amendments on double recovery of health benefits. I note that this is also directly related to one of the working group recommendations. I see that point, but the Minister has said there will also be amendments on open disclosure on patient safety. Will the Minister say if that is unrelated to the issue of periodic payment orders? I do not see reference to it in the working group recommendations. Is it to do with these periodic payments? Will it have any bearing on those? Overall, apart from raising a few small queries, like others here, I very much welcome this important Bill and acknowledge the human suffering that has given rise to the need for it.