Michael McDowell (Independent) | Oireachtas source

I want to express my complete agreement with the sentiments expressed by Senator Mullen on all fronts. It seems to me that we are here dealing with a problem which, based on some of the case law that has been mentioned, one might think the problem does not exist to the extent that it does. Senator Mullen has put his finger on one very important point and that is the iceberg principle, namely, that the great majority of cases which come to report and are reported are where schools are in fact found not guilty of negligence but it is in those circumstances that the Judiciary has expressed its views on the standard of care. The reality is that any claim for personal injuries for any child injured in any of the circumstances mentioned by Senator Mullen involves significant outlay by insurers, significant application of time and effort by the management of a school which has other things to do and there is always a risk factor. We cannot get away from the fact completely that the more serious the injury, for example, supposing a child fractures his or her skull as a result of a fall, a fall which might otherwise have resulted in a simple sprain of the wrist, some members of the Judiciary will take a more stringent view of the duty of care owed to the child simply because of the extent of the child's injury. Second, because judges are human, and even though we now have personal injuries guidelines, there are judges who are more favourable to plaintiffs than others and that is a fact. An insurance company has to bear in mind who this case is going to be heard before, how serious are the injuries, what the risks are and will eventually compromise, in a lot of cases, in the circumstances adverted to by Senator Mullen.

This legislation is definitively needed. I am glad that Senator Mullen mentioned the upcoming proposal to alter the law concerning civil liability for occupiers because, in my view, that is also overdue. I think that occupier's liability again is an instance where artificially high standards of proof are applied to the homes, lands and premises of strangers, which people do not apply in their own life. We trip over our own garden stones, trip over this, fall down here or drop ladders here and there, for example. Things happen in our own lives. We fall off bicycles and injure ourselves or whatever in our own lives and we do not consider for a moment suing somebody but where we can hang it on the nail of occupier's liability then different standards seem to apply.

Lastly, in the context of the legislation that the Government is proposing or, indeed, if this Bill gets to its next stage, the time has come to look not merely at occupier's liability or school management's liability but also at those people who organise voluntary activities within our communities. I refer to people who organise sports occasions or rural events such as horse shows and the like. We are slowly throttling all of that voluntary activity by insisting that all of these activities are the subject of insurance. The insurance premiums that are payable are driving voluntary activity out of existence right across the board.I would propose that in the case of certain specified activities of a voluntary kind, the standard should be gross negligence, not merely arguable negligence, on the basis that would be applied in a commercial context. Volunteerism in Ireland is under threat and the time has come to look at civil liability to see whether we can amend the law to make volunteerism more acceptable and less costly for the organisers.