Seanad debates

Tuesday, 22 November 2022

Personal Injuries Resolution Board Bill 2022: Second Stage

 

Question proposed: "That the Bill be now read a Second Time."

2:30 pm

Photo of Dara CallearyDara Calleary (Mayo, Fianna Fail)
Link to this: Individually | In context

Tá áthas orm an Bille fán mBord um Réiteach Díobhálacha Pearsanta 2022 a thabhairt os comhair an Tí seo. Is Bille tábhachtach é seo a sheachadann an gealltanas sa chlár don Rialtas an Bord Measúnaithe Díobhálacha Pearsanta a fheabhsú agus a athchóiriú.

I acknowledge the co-operative support of Teachtaí Dála during their consideration of the Bill in the Lower House. Building on the positive engagement during pre-legislative scrutiny, I would particularly like to note the constructive engagement that I have had with Deputies Louise O’Reilly and Matt Shanahan and Senator Mullen. I acknowledge and pay tribute to the work undertaken by my colleague, Deputy Robert Troy, in conceiving and developing this Bill. Deputy Troy's leadership in this area and his work with stakeholders in recent months has resulted in the Bill we are considering today.

There is no single policy or legislative fix to remedy issues around the cost and availability of insurance. It needs sustained action across a range of policy areas. The programme for Government identified a range of issues that the Government is prioritising through the Cabinet subgroup on insurance reform chaired by the Tánaiste and delivering through the Action Plan on Insurance Reform.

Good progress is being made with nearly 90% of the actions in the plan now delivered. Significant actions completed include the introduction of the new personal injuries guidelines, the enactment of legislation to strengthen the laws on perjury, and the establishment of the office to promote competition in the insurance market.

Reform of the Personal Injuries Assessment Board, PIAB, which we will discuss here today, is action 19 in the Action Plan for Insurance Reform. PIAB assesses claims for compensation arising from personal injuries sustained because of a motor, workplace or public liability incident. PIAB provides a fair and transparent assessment process in which personal injuries claims are resolved in a straightforward and efficient way. The model is a positive one for society because it delivers compensation more quickly with lower costs and predictable outcomes.

The Central Bank published its Private Motor Insurance Report 4 last week. The report shows that from 2015 to 2021, the average settlement time for injury claims through PIAB was two years. This compared with 3.9 years through litigation. The report also shows that for the same period the average legal costs for private motor insurance claims under €100,000 settled via PIAB was €686 versus €15,567 for a litigated claim despite the average compensation being similar.The PIAB process is much more cost-effective and efficient. The benefits of the model are clear but we can and must do more to ensure claims are resolved in this way. The model can be strengthened to resolve a greater number of personal injury claims. This view is shared by a range of stakeholders.

The purpose of the Bill is to amend the Personal Injuries Assessment Board Act 2003, as amended in 2019, to increase the number of personal injury claims resolved by the board without recourse to litigation. The Bill will establish PIAB as a new and enhanced personal injuries resolution board. Central to this will be the introduction of mediation as a new service to resolve personal injury claims. The service offered by the board will follow the recognised principles of mediation, including being a fully voluntary process, ensuring confidentiality and impartiality and providing the opportunity for the parties to determine the issues that requiring resolving. Where the parties do not consent to mediation, the existing process in respect of assessment of a claim remains. An advantage of mediation is the ability for parties to get speedy access to a process that may produce a satisfactory and agreed outcome for them in a short space of time. Mediation is already successfully used by bodies such as the Residential Tenancies Board, RTB, the Workplace Relations Commission, WRC, and the Financial Services and Pensions Ombudsman as a means of facilitating the resolution of issues between parties. My proposals are modelled on existing legislation in respect of those bodies.

The Bill contains several amendments to enhance the role of the board regarding promotion of its work and its performance of data analysis and reporting. It allows for the retention of more complex cases, such as wholly psychological ones, by the board. The Bill provides for the issue of costs should a case proceed to litigation. The Government is also introducing a new provision to strengthen the process by making it an offence to provide false or misleading information to the board. This should strengthen and increase confidence in the process, which relies upon accurate and truthful information for its just and proper operation. I thank Senator Mullen for his contribution to this part of the Bill.

Arising from discussion with Deputy Shanahan and Senator Crowe and engagement with stakeholders, I moved an amendment on Report Stage in the Dáil to provide for a ministerial review of the new provisions contained in the Bill 18 months after commencement. This will provide an early opportunity to consider whether the new provisions, including those in respect of mediation, are working as intended. It is important to note that the reforms listed in the Bill, including the introduction of mediation, will not prolong cases. The board will remain obliged, under section 49 of the Act, to assess claims within nine months of confirmation of the respondent's consent to the assessment process, notwithstanding some exceptional circumstances provided for in the legislation.

I will now summarise the main provisions of the Bill. Section 2 provides for the change of name of PIAB to the personal injuries resolution board to reflect its new functions.

Section 3 sets out the application process to allow claimants to make an application for mediation, assessment or both and the mandatory elements thereof, including the requirement to supply a personal public service number or alternative identification.

Sections 4 and 5 provide for the notification by the board of a claimant's application to the respondent, to ask whether the respondent consents to mediation, assessment or both and provision for the procedures to be followed by the board afterwards.

Section 6 provides that where a respondent consents to mediation or assessment or both of a relevant claim or is deemed to consent to assessment, this will not be considered to be an admission of liability with regard to the relevant claim.

Section 7 expands the types of claims that will be considered by the board by removing its discretion not to make an assessment for claims of a wholly psychological nature or where a long-term prognosis is not yet available.

Section 8 extends the provisions relating to presumption of capacity of both the claimant and the respondent regarding the making of an assessment to include mediation.

Section 9 introduces a new chapter 1A to the principal Act containing six sections, that is, sections 18A to 18F, inclusive, which introduce mediation as a new service to resolve claims under the board's process. This chapter details the mediation process and outlines how a mediation is completed. An unsuccessful mediation will move to assessment where a respondent has consented to same. Section 10 updates the reference in section 19 of the principal Act to provide for mediation.

Section 11 provides that the board, with the consent of the Minister, may make regulations to impose charges in respect of its services. The section provides that where a respondent has failed to pay the relevant fee to the board in the required timeframe, the board can apply an additional administrative charge.

Section 12 amends section 38 of the principal Act and sets out that where a monetary value has been agreed in mediation, the board will issue an order to pay. It provides for an order to pay to include any outstanding charges payable to the board by the respondent.

Section 13 sets out the procedure to be followed where a claimant withdraws consent previously given to the board to retain a claim past the statutory timeframes set out in section 49 of the Act.

Section 14 enables the board to retain claims where, based on a medical report, a long-term prognosis will not be available under the nine-month statutory timeframe. It provides for up to an extra two years, in addition to the nine months, for a long-term prognosis to become available.

Section 15 provides that the extended time allowed for a long-term prognosis to become available, as provided for under section 14, will be included for the purposes of pausing the statute of limitations. This will be while claims are with the board and for a period of six months after it issues an authorisation.

Section 16 is particularly noteworthy. Its purpose is to encourage greater acceptance of awards by the board, particularly as both the board and the courts must now assess personal injury claims under the personal injury guidelines. It sets out procedures for a claim that has left the board following an assessment, has been accepted by the respondent but rejected by the claimant, and has proceeded to litigation. Where a claimant brings proceedings in such circumstances, no award of costs may be made in his or her favour where the award does not exceed the board's assessment. The section also provides that the assessment value will be deemed to be an offer of tender of payment made by the defendant as of the date the respondent accepted or was deemed to have accepted the assessment. This serves to limit, in certain circumstances, the level of costs a respondent may have to pay up to the point of the acceptance date.

Section 17 provides for four new functions to be accorded to the board. These are: one, to facilitate the resolution of claims through mediation; two, to collect and publish information relating to personal injury claims, including awards made under the personal injury guidelines; three, to conduct or commission research, analysis or studies on matters relating to the function of the board; and, four, to promote awareness of the role of the board and the benefits of resolving claims through it.

Section 18 extends the requirement for certain persons to provide information to the board.

Section 19 provides that mediators appointed from a panel will have the same indemnity for their work as will mediators who are members of staff of the board.

Section 20 provides that the board may report suspected offences to An Garda Síochána.

Section 21 provides that the board shall provide the Minister with information about the performance of its functions.

Section 22 sets out that the provision of false or misleading information to the board by a claimant, respondent or third party is an offence.

Section 23 provides that the amendments to the principal Act effected by the Bill will be reviewed by the Minister 18 months after commencement of the section. A report on the findings of the review and the conclusions drawn from those findings will be laid before both Houses of the Oireachtas.

Section 24 provides for the exclusion of the mediation process from the provisions of the Freedom of Information Act 2014. This is required as mediation is a confidential process.

Section 25 provides the Short Title of the Bill and the citation and makes provision for enactment by statutory instrument.

The Bill has been developed through extensive engagement with consumers, businesses, community groups and bodies such as the Alliance for Insurance Reform. The resounding message from all is the urgent need for reform. The Bill seeks to deliver that reform while respecting the fundamental right of access to our courts. The cost of claims is a large driver of insurance premiums. The Bill will increase the number of claims settled through an enhanced resolution process and reduce the cost of claims. This should and must impact positively on the cost of insurance, which is vital for many businesses and groups across our country. As acknowledged by the joint committee and as I know from recent meetings with stakeholders on the legislation, it is important that we now enact the Bill. I commend it to the House.

Photo of Sharon KeoganSharon Keogan (Independent)
Link to this: Individually | In context

I thank the Minister of State. I call Senator Crowe on behalf of Fianna Fáil.

Photo of Ollie CroweOllie Crowe (Fianna Fail)
Link to this: Individually | In context

I welcome the Minister of State to the House. This is welcome legislation, which reflects a key commitment in the programme for Government and the action plan for insurance reform to enhance and reform the PIAB process. The data from the Central Bank report are clear. They show that prior to the introduction of reforms, it took twice as long for claimants to go down the legal route, compared with the PIAB process, and they ultimately ended up with a similarly sized settlement. From 2015 to the end of 2020, the average personal injury award for motor claims through PIAB was €22,000, compared with €23,000 through the courts.

The key difference was that the legal cost of going through PIAB was €665, compared with €15,000, on average, through the courts. Furthermore, the implementation of the personal injury guidelines means there will be no difference between awards in courts and through the board. It is important that we continue to get that message out to people. I know from speaking to claimants that there is sometimes a perception that they are better off going down the legal route, which is simply not the case. Clearly, having more claimants settle at the PIAB stage is in everyone's interest. The Bill is aimed at further growing the percentage of such cases by making a number of enhancements to strengthen the board, as the Minister of State outlined.

Insurance remains one of the major challenges facing businesses, particularly SMEs across the country. It is essential that we bring down its cost and increase competition in the sector. As the Minister of State said, there is no one reform that will suffice. Rather, there needs to be a wide range of complementary reforms to make a meaningful impact. A key pledge of Fianna Fáil before the most recent general election was to reform the insurance market. That is exactly what the Government is doing with the introduction of the personal injury guidelines, legislation to strengthen the law on perjury, the establishment of an office to promote competition in the market and the further strengthening of PIAB by way of this Bill. We have seen progress in attracting additional liability capacity into the Irish insurance market. We are now seeing additional insurance companies competing to provide cover for sectors that were uninsurable just a few years ago. PIAB data show average general claims have decreased by 44% under the personal injury guidelines, with the average PIAB award now €14,786, compared with €23,877 in 2020.

We have also seen reductions in motor insurance. We need those reductions to become more widespread across the insurance sectors. SME owners in Galway tell me the cost of insurance has been a grave concern for them for a number of years. Unfortunately, it has even resulted in some having to close their business. That has been rare but it has happened. Now the Government has taken decisive action to address the issue, it is time for insurers to play their part and reflect those actions in the price of premiums. We also need greater transparency from insurance companies. Such transparency in respect of claims has been lacking for a long time. We must ensure that is no longer tolerated.

An important consideration is the resourcing of PIAB. We have seen an increase in the number of cases coming before it, which is welcome. That is the way we want to go. The board appears to be dealing adequately with the increase but we all hope the number of cases it settles will continue to grow. Is the Minister of State confident the board has sufficient resources to handle such an increase or will it require greater resources?

I welcome this legislation. It is another significant and substantial step in reforming the insurance sector, which the Government highlighted as a signature commitment. We are delivering on that commitment.

Photo of Sharon KeoganSharon Keogan (Independent)
Link to this: Individually | In context

I thank Senator Crowe for his input into this Bill.

Photo of Michael McDowellMichael McDowell (Independent)
Link to this: Individually | In context

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.

Photo of Maria ByrneMaria Byrne (Fine Gael)
Link to this: Individually | In context

I thank the Minister of State for coming before the House today to discuss this all-important issue. I compliment him, his staff and all in the Department on the work they have put into this. I held a public meeting on insurance with the Tánaiste in the past and addressed the issue of insurance reform in a number of other organisations. Some of the revelations by not only small businesses but big businesses were absolutely frightening. I welcome the fact that this Bill is coming forward.

Senator Crowe referred to small as well as large businesses. The cost of insurance has in many cases gone absolutely through the roof. Even going back to Covid-19, while they were not small injuries claims, many people took businesses to court for things like asking them to wear a mask. People actually took businesses to court and got money out of them. It really is not acceptable. When we were going through Covid-19 in very difficult times, businesses had signs up very clearly asking people to please wear their masks. Many claims were coming through at the time that possibly were not warranted.

To follow on from what Senator McDowell said, we are very lucky that we have had an ice-skating rink in Limerick for the last 20-odd years.I see the one in Galway is not operating this year because of the high cost of insurance. Things like that really resonate with businesses. My understanding is the business in Galway employed 25 people, and while it was seasonal for six or eight weeks, 25 people had jobs for the duration. I understand the quote for insurance was somewhere in the region of €50,000 to €60,000 a week, although it did not have any proven personal injury claims against it. That is my understanding of the situation. While there are people who take claims and genuinely deserve the money, others take claims that are not always warranted. The Bill goes a long way.

The Minister of State has engaged with the Alliance for Insurance Reform and small and large businesses. It is also most welcome that the Bill went through pre-legislative scrutiny at the committee. People had the opportunity to make submissions. The Bill strengthens the remit of the board and puts it on a stronger standing. I picked out a few points that I believe are strong measures. These are: "to facilitate the resolution of claims through mediation ... to collect and publish information relating to personal injury claims, including awards made under the personal injury guidelines ... to conduct or commission research, analysis or studies on matters relating to the function of the board; and ... to promote awareness of the role of the board and the benefits of resolving claims through it". These four points are very important.

Senator McDowell referred to the setting up of PIAB. I am aware of the amount of work the former Minister, Ms Harney, put into it. Although it was working, the Bill has made it even stronger. It is going to help many small businesses and people to get their cases resolved quickly. It often took cases many years to go through the courts. While I am not a legal person, I have worked with people who have had claims and they were taking far too long. I believe that cases must be concluded within a specified amount of time. The strength of the board is being increased. Mediators now have a very important role to play. In many cases, bringing in a mediator to work with the person being claimed against and the claimant often helps to bring the two sides together and to bring sense to the situation.

I welcome that the Minister of State has had extensive engagement with the consumer. I compliment all involved in the Bill and I look forward to working with the Minister of State in the future. I also welcome his commitment to review the working of the Bill in 12 or 18 months.

Photo of Dara CallearyDara Calleary (Mayo, Fianna Fail)
Link to this: Individually | In context

It is 18 months.

Photo of Maria ByrneMaria Byrne (Fine Gael)
Link to this: Individually | In context

It is 18 months. The intention is to ensure the Bill is working. That is a welcome commitment given the engagement with the various organisations affected and involved. The Minister of State will work with them again and he is willing to listen to their views in 18 months' time. It is good to go back and review something to see if it is working. I again thank the Minister of State. I welcome the Bill.

Photo of Paul GavanPaul Gavan (Sinn Fein)
Link to this: Individually | In context

It is good to see the Minister of State. On behalf of Sinn Féin, I welcome the Personal Injuries Resolution Board Bill 2022, as it relates to the programme for Government commitment to enhance and reform PIAB. It also addresses the commitments in the action plan for insurance reform to provide for a new and enhanced personal injuries resolution board. Overall, this Bill is a positive step in the reform of the claims landscape, and it follows the adoption of the personal injuries guidelines in 2021.

Anyone who talks about insurance will know that my colleague, Deputy Pearse Doherty, has done tremendous work in this area over the past decade. Therefore Sinn Féin supports this Bill, and any movement to reduce the cost of claims, speed up the process and, accordingly, reduce insurance premiums is to be welcomed.

The Bill proposes to amend the Personal Injuries Assessment Board Acts 2003 to 2019, which would have the effect of increasing the number of personal injury claims settled through PIAB, which it is hoped would help avoid the expense and time associated with litigation. The objective of the Bill is to amend the legislation to facilitate an increase in the level of personal injury claims that may be resolved through the board.

This Bill also introduces the option of mediation, whereby both parties would be asked to consent to mediation and, if mutually agreeable, a mediation officer is then appointed. The recruitment of mediation officers will be very important. They need to be the right people with the right experience. Their contract terms and conditions will be very important because not only do we want them to start the work and for there to be enough officers recruited to prevent a backlog, but we also want them to feel they can work in that position on a long-term basis. Anyone who works in mediation knows that one builds up the knowledge and understanding of the issues over time, which is invaluable in providing an excellent and efficient service.

The Bill further seeks to extend the powers of PIAB to assess more complex injuries, such as psychological injuries, which were not previously assessed by PIAB. In doing that, it aims to increase the number of personal injury claims that can be resolved by including these types of claims.

Avoiding unnecessary litigation is the key purpose of PIAB and the Bill before us. Assessing insurance claims through PIAB is a quicker and cheaper option through which to make insurance claims. In 2020, it was estimated the cost of litigation was €16,064, but if done through PIAB the average cost is €841. That is very significant. Furthermore, the amount of time to settle reduces on average from 4.2 years through litigation to 2.3 years through PIAB. We know the long drawn out process of litigation can be very stressful for claimants, so this is also good news.

Litigation and personal injury claims increase the cost of solicitors and barristers as well as the insurance industry. The costs associated with litigation are then used as an excuse to inflate premiums disproportionately. Sinn Féin has consistently advocated for the strengthening of the powers of PIAB as a method of reducing the legal costs in claims settlements.

PIAB has shown itself to be successful when self-financing, but it is important it continues to have the resources it needs to improve its performance and the volume of disputes it can assess. The reduced cost of litigation due to the recent changes in legislation and the financial benefits insurance companies will gain from an enhanced PIAB role must be passed on to consumers. There is not much evidence of that as yet since the introduction of the 2021 guidelines. The Government must monitor this carefully. Sinn Féin's insurance Bill, introduced by Deputy Doherty, requires just this, namely, the publishing of a report on the effects of the previously introduced guidelines and that consideration would be given to the report when framing future legislation.

Many local community groups struggle with insurance costs, and now with rising inflation and energy costs they will struggle even more. Insurance costs are usually the biggest barrier for these groups when trying to organise events such as local festivals or fun days. The Alliance for Insurance Reform recently carried out a policyholders survey to mark the first anniversary of the implementation of the pivotal judicial guidelines for personal injury damages on 24 April 2021. This survey found that 42% of respondents believe insurance costs are threatening the future of their organisation. This figure is not materially different from the response to the same question in research the alliance carried out in 2018. It also found that 31% say insurance costs are preventing them from providing certain services, which has increased from 26% in the 2018 survey. In stark contrast, however, PIAB reported that the average awards for personal injury claims made since the introduction of the personal injuries guidelines are down by 42% compared with 2020. This shows that strong action in the area of insurance can have a beneficial effect, but we must see those benefits passed on to insurance customers.

Photo of Marie SherlockMarie Sherlock (Labour)
Link to this: Individually | In context

I welcome the Minister of State to the House. I apologise in advance as I must leave this debate after making my contribution. We very much welcome the Personal Injuries Resolution Board Bill 2022. All in this House are extremely conscious of the unacceptable situation that pertains to the insurance sector in this country. There is a very real problem with unaffordable premiums, and insurance firms have failed to pass on reductions. We heard other speakers talk about the fact that although the judicial guidelines have been in place for some time, we have yet to see a substantial drop in premiums. We also have a dysfunctional market.There are swaths of community groups – Senator McDowell talked about this earlier – that simply cannot secure insurance in this country anymore and are consequently put out of business. There may be but one insurance provider, if any, in the UK or beyond.

These are all issues that will not necessarily be dealt with in this Bill. Nonetheless, we very much support the Bill in the hope it will lower the cost of insurance claims and reduce premiums over the medium term. One of the key recommendations of the pre-legislative scrutiny of the Joint Committee on Enterprise, Trade and Employment, of which I am a member, is that the Bill be proceeded with as quickly as possible in terms of the overall insurance reform agenda.

I want to touch on some of the concerns. The clear positives associated with the legislation have been already articulated but I want to raise some questions and concerns regarding it. The first relates to the work of the proposed mediation service, specifically its separation from the board's assessment work. At hearings of the joint committee, we heard of the need to put clear water between the mediation and assessment processes so officials involved in mediation will not be involved in assessment. However, subsections 18(d), (e) and (f), which cover the establishment of the mediation service, only require that the mediator not be involved in the assessment, or vice versa. I am conscious that there are powers delegated to the board in section 18(f) but it is not clear why clear blue water would not be put between both distinct services in the new PIRB. Arguably, there are different skill sets. I am conscious that barristers undertake both assessment and mediation the whole time, but, for consistency of assessment, it is crucial that a set number of individuals undertake the assessment work and that this work is separate from the mediation work. We heard during pre-legislative scrutiny that this would be considered. I am probably not sufficiently reassured by the text of the Bill that we are going to have the clear water between both processes.

The second issue I want to raise concerns the right to bring legal advice with an individual party to the mediation process. The availability of mediation is very welcome but typically that process involves an insurer versus an individual. There is an immediate power imbalance in that arrangement from the get-go. Once one side is lawyered up and the other is not, it reinforces the imbalance of power. Section 18(b) sets out the role of the mediator but we need to see much stronger provisions on the responsibility of the mediator towards the individual or claimant in particular. Notwithstanding that participation in mediation by the parties is voluntary, I am concerned that individuals would feel in some way implicitly coerced into participating in mediation as opposed to going straight through to the assessment. I would like to see a stronger role for the mediator with regard to a duty of care towards the claimant.

The last point I would like to make is on data collection. A lot of data are being collected at present but a key issue concerns the cases that go to PIAB that end up in the Circuit Court. I am not sure we have a full handle on the cases that progress and where PIAB fails to fully and finally resolve the claimant question. We need to understand much more about the throughput from the new PIRB, when established, to the court system. Ultimately, it is only when we see a reduction in the number going on to the courts and cases fully and finally resolved within the PIRB that we will know it has been a success. Some of the evidence concerning PIAB indicates that cases have just gone straight to the courts.

Photo of Dara CallearyDara Calleary (Mayo, Fianna Fail)
Link to this: Individually | In context

I thank all the Senators for their positive remarks about the Bill and the work of the PIAB. I join them in acknowledging the work of PIAB since its inception in 2004. In this regard, I acknowledge the role of Senator McDowell and former Tánaiste Mary Harney, but also, particularly in the year the relevant legislation was passed, former Minister of State Noel Treacy, who was an advocate of the board and its work.

PIAB, as we all agree, reduces unnecessary litigation, making it easier, quicker and cheaper to resolve claims for everyone involved in the process. It is completely impartial and fair in making award assessments. The result is of benefit to the person injured, the person or company the claim is against and society as a whole.

PIAB works – we are all agreed on that – and we want it to do more. This Bill will enable that.

To speak to Senator Crowe's concerns about PIAB resources, I visited the board last Thursday. It is absolutely gearing up for the extra work. Its chairperson and team, who are in Tallaght, are looking forward to taking on the work. They are implementing a new IT system and are very realistic about what work will be involved in planning for it. Our officials continue to engage with them to ensure the new arrangement will work.

I endorse all the comments made today reflecting the issues that still arise regarding the cost and availability of insurance. Considerable work has been done on insurance since the inception of this Government. I have outlined the work done through the insurance action plan and by the Tánaiste and the Minister of State, Deputy Fleming. It is now vital that the benefits of all that work is passed on to customers. Senator McDowell's remarks were interesting in this regard. He alluded to what we need to do and what further changes need to be made in this space. It is unacceptable that voluntary effort, community effort, community engagement and events to bring communities together are impaired or suffering because of insurance issues. The differentiation the Senator made is interesting and definitely worth proceeding with.

On Senator Sherlock's remarks on the assessment and mediation, there will be a separation of functions. Subsection 18(e) lays that out in detail. PIAB will make the rules on how the roles of mediation and assessment will be differentiated and on how independence will be maintained. That will be done in accordance with established principles laid out on mediation, and the provisions for claimants and information will be laid out clearly. That is also being discussed with PIAB as part of its work programme related to the introduction of this Bill.

This is a very significant Bill. I acknowledge everybody who has played a part in producing it. The review process is important. We need to make sure it is working and has the required impact. This is not the end of the chapter, however. Until we see in public and employer liability insurance the kinds of reductions we are beginning to see in motor insurance, we cannot take our foot off the pedal regarding insurance reform. I assure all the Senators that this work will continue throughout the lifetime of the Government.

Gabhaim buíochas le gach duine sa Teach as a ráitis inniu. I thank my officials, particularly Mr. John Maher and Ms Anne Barrett, who are present and have lived with this Bill for some time. They have put enormous work into it. We look forward to Committee Stage and to passing it in this House.

Photo of Sharon KeoganSharon Keogan (Independent)
Link to this: Individually | In context

I commend former Minister of State Deputy Robert Troy on his work on this Bill.

Question put and agreed.

Photo of Sharon KeoganSharon Keogan (Independent)
Link to this: Individually | In context

When is it proposed to take Committee Stage?

Photo of Ollie CroweOllie Crowe (Fianna Fail)
Link to this: Individually | In context

Next Tuesday.

Photo of Sharon KeoganSharon Keogan (Independent)
Link to this: Individually | In context

Is that agreed? Agreed.

Committee Stage ordered for Tuesday, 29 November 2022.

Cuireadh an Seanad ar fionraí ar 5.40 p.m. agus cuireadh tús leis arís ar 6.30 p.m.

Sitting suspended at 5.40 p.m. and resumed at 6.30 p.m.