Michael McDowell (Independent) | Oireachtas source

I welcome the Minister of State and congratulate him on his reappointment. I welcome this legislation too. As far as I am concerned, it is important both that it should be passed and that it should be seen as part of a general reform of the law including, as Senator Crowe said, the guidelines, perjury legislation and so forth.

A couple of things have occurred to me about this Bill. First, mediation is hugely important and should be encouraged at every stage. Second, way back in 2004, the then Minister, Mary Harney, introduced the original PIAB legislation, which I mirrored in the Department of Justice with the legislation that dealt with reforming the conduct of personal injuries litigation. One of the things that was brought in was a need for truthfulness in the litigation process to be made mandatory and to impose serious penalties of up to ten years imprisonment for people who fraudulently or dishonestly made claims. It does not make any sense to confine that to the court proceeding and to allow people to exaggerate their claims or mislead PIAB in safety. That does not make sense. Obviously, that aspect of this Bill is hugely important.

I must say, and Senator Crowe put his finger on the issue, that the cost of insurance is still very high in this country. It is easy to complain about it but it is difficult to work out precisely how to deal with it. I feel that for all of the amendments that were made in 2004 and right up to now with the guidelines and all these very welcome steps that have been brought in, we still have very high insurance premiums. I wonder whether the insurance companies really are playing their part in rewarding people who have to insure against negligence with lower premiums. I do not think it is happening sufficiently.

I will also say this about the whole question of reform in this area. It is one thing to control the amount of damages that are awarded to people and to try to bring rationality and uniformity to what should be given to somebody for a broken leg or who is paralyzed or has whiplash or the like. That is quantification of liability, if you like. I welcome the whole idea of judicial guidelines in that context.

I do not see that it was in any way satisfactory in the past that the result of a case varied so widely depending on the personality of the judge. I say that without any criticism of any judge. However, some people were inclined to be more generous than others, full stop, and that applies to this very day. Therefore, the guidelines certainly have the effect, which they should, of increasing the role of PIAB. People will say that, in principle, this is the value of their claim so there is not much point seeking to litigate it if they are going to get more or less the same result from PIAB, the name of which will be changed to the Personal Injuries Resolution Board, PIRB, from now on.

I ask a different question, however. I will raise it now although I know we will not resolve it this afternoon. Are we exacting too high a standard of care for huge areas of Irish society such as voluntary activities? Should it be that people who are running sports events or voluntary cultural events, for instance, are made liable to the same extent as somebody who is doing it for profit and who has the resources to comply with health and safety and such and has the organisation to deal with those issues? I find it sad in a way that voluntary activity is now withering in some areas because people simple cannot get the money together to pay insurance premiums for all sorts of things like agricultural shows, local horse shows, gymkhanas or whatever else. Even football clubs are affected, although I know the GAA tries to do this on a national basis. There are so many things affected; hunting, for example, insofar as it is allowable to say it anymore. I get the impression that even to bring people out on pony trekking is now a very dangerous thing to do in terms of insurance and insurance premiums. People are running away from those kinds of activities.

The flip side of that coin is that we must acknowledge that a fair amount of risk is involved in sporting activity. If people are going to attend an event organised by their local community, should they really be in a position to start a legal action if they trip over something, somebody bumps into them or if there is inadequate supervision or whatever else? Should people be in the same position to sue in that instance as they would be when going into a cinema or something like that where the owner of the cinema knows the standard that must be maintained? How can that issue be dealt with? There should be a higher onus of proof on the plaintiff in respect of some areas of voluntary activity before damages can be awarded in the first place. I would suggest that in some areas, gross negligence should be required to be proven before a relationship of care exists at all.

When a person walks down the street nowadays, the road traffic law is interesting in that if a pothole appears due to wear and tear, a person cannot sue if he or she trips in it, but he or she can sue if it can be proven that it was caused by a negligent repair. That kind of artificial distinction underlines the artificiality of effectively creating a society in which nobody takes any risk themselves. If people can find any fault on the part of somebody else, they can sue. I will throw that out for consideration. It is perhaps for another day. I welcome this legislation.