Rónán Mullen (Independent) | Oireachtas source

I would love if we could have a political all-star awards for sledging around here.

I welcome the Minister. I thank Senator Lawlor for bringing this Bill forward, although I have concerns about it.We all agree that insurance premiums are far too high but I am not convinced that this Bill will address the problem. While its aims are laudable, I have a number of issues with it.

I note this is not a Government Bill, but a Private Members' Bill which just happens to be supported by all Fine Gael Senators. I am wondering why that is the case. The Government has hinted at capping general damages but it has not yet formally adopted the idea. The Minister of State, Deputy D'Arcy, suggested a couple of weeks ago that the Attorney General would need to examine the constitutionality of the proposal. Presumably we can conclude that the Government does not support this legislation but is happy for it to pass all Stages in this House in the knowledge that it will perhaps languish on the Dáil Order Paper without ever going anywhere. If that is the case, would that not do a great disservice to this House?

The Bill seeks to cap general damages by ministerial order or regulation, thus fettering the discretion of the Judiciary. Limiting judicial discretion may sound good in theory to some. It may even allow large awards to be capped. However, I have a fear that it might create a new and even worse kind of injustice, where those who endure a serious personal injury could end up being inadequately compensated. No ministerial order or regulation, no matter how carefully drafted, can possibly cover all eventualities. Each case is different and there are always unforeseen circumstances. That is why judges should be allowed some discretion. The 2016 book of quantum, for example, makes it clear several times that "every claim will continue to be dealt with on its individual merits." It seems that this principle would now be scrapped by this Bill. In future, regardless of the individual merits of a particular case, damages would be capped by regulations.

The Bill seems to ignore that the Judiciary has recently intervened to implement a fairer means of quantifying awards of general damages. Two recent cases in the Court of Appeal, Payne v. Nugent in 2015 and Nolan v. Wirenski in 2016, laid out a new formula for assessing damages so that awards would be fair, proportionate to the injury suffered and reasonable in the circumstances. Given that these cases arose just two years ago, I wonder if the Bill, in its genesis, considered how this new formula has worked within the courts in that time. Should it not do so before seeking to limit judicial discretion in relation to damages?

In a broader sense, I wonder if this Bill is a continuation in form of a pattern of populist attack on the Judiciary by Government in the recent past. We had the 2011 referendum on judicial pay. We have spent 75 days in the Seanad discovering the nonsense legislation of the Minister for Transport, Tourism and Sport, Deputy Ross, namely, the Judicial Appointments Commission Bill, which I suspect is as much an embarrassment to the Minister for Justice and Equality as it is to anybody else. We also had the absolutely daft suggestion last November by the Minister of State, Deputy Michael D'Arcy - I say this with respect for a gentleman whom I like - that high whiplash awards be dealt with by referendum to amend the Constitution so as to bring judges to heel. The common thread running through all of this is a type of "us versus them" mentality with respect to the Judiciary. Instead of seeing the courts as the third branch of Government and an important check on the abuse of power by other branches of our democracy, there is a suggestion that judges are some sort of cosseted elite acting against the best interests of citizens. While that might be true in individual cases, it is unfair as a general attitude. Is this Bill a manifestation of this pattern that I am positing? I certainly hope that is not the case but I worry that the Government has a bit of form, to say the least, in this regard.

Where does this Bill leave the book of quantum? The book of quantum was last revised in 2016 after a comprehensive review of 51,000 personal injuries cases during 2013 and 2014. It should, therefore, give a very accurate picture of the level of awards. Section 6(2) of the Bill states that the book of quantum will continue to be revised from time to time to reflect the recommendations of the Personal Injuries Commission. What is the point in continuing to have a book of quantum to guide judges if the damages for various injuries are to be capped by ministerial regulation under this Bill? Does the Bill not do away, more or less, with the need for a book of quantum by scrapping the role of the Personal Injuries Commission in revising it and placing it effectively in the hands of civil servants, to be rubber-stamped by the Minister and each House of the Oireachtas? This is what I mean when I talk about a certain lack of regard for the proper role of the courts and a certain encroachment by one branch of our democracy on another.

One of problems highlighted in recent years has been that insurance companies are too quick to settle rather than fighting suspect claims. Somebody mentioned Pat McDonagh in a positive vein in that regard and I agree with that. In the past year or so, we have seen evidence that the mindset is changing with several suspect cases being fought and won by insurance companies in high-profile fashion. Surely we should wait to see if this trend continues before resorting to fairly drastic legislative intervention?

In summary, this Bill is well-intended but premature. It is draconian in its attempt to limit judicial discretion. It takes no account of recent case law, which seems to limit excessive damages awards, and it intervenes in cases at a time when insurance companies are finally showing a willingness to fight dubious claims. For all of those reasons, I am inclined to oppose it.