Wednesday, 23 April 1986
Seanad Eireann Debate
Minister for Health (Mr. B. Desmond): The purpose of the Bill now before the House is to enable charges to be made by health boards for hospital in-patient and out-patient services on persons in respect of treatment of injuries received in road traffic accidents when the injury is caused by the negligent use of a mechanically propelled vehicle in a public place and where the person has received, or is entitled to receive, damages or compensation in respect of such accident.
The principle of recovering the costs of the treatment of road traffic victims can be traced back to the Road Traffic Act, 1933, and the most recent provisions were contained in Article 6 (3) of the Health Services Regulations 1971 which were made under section 72 of the Health Act, 1970. These regulations were challenged in the Cooke v. Walsh case and the Supreme Court judgment of 16 December 1983 declared that the regulations were ultra vires the power of the Minister and were void.
When the Health Act, 1970, was debated, the then Minister for Health made it clear that persons who received damages or compensation for injuries received in road traffic accidents would  be required to pay for hospital services received in respect of their injuries. He indicated that this would be covered by regulations which he intended to make under section 72 of the Act. The Act was passed and subsequently the provisions made in Article 6 (3) of the Health Services Regulations, 1971, were availed of to make such charges until they were declared ultra vires by the Supreme Court in December 1983.
The provisions which I have now brought before the House provide specific authority to enable health boards to reintroduce charges for hospital services provided — and I would stress “provided”— for persons who receive damages for injuries received in a road traffic accident. Such charges must be raised in advance so that they can form part of the claim for compensation before the courts. The case and amount of damages will be decided by the courts. If successful — and I stress that phrase also — the charges will be payable out of the compensation awarded. If unsuccessful, the charges will not be payable.
I have also made specific provision in the Bill for the waiving of the whole or part of the charges in cases where the compensation payable to the injured party has been reduced by the courts by reason of contributory negligence by such person or where the amount of damages is insufficient to meet the charges. This will protect the injured person from any hardship which might arise in meeting the charges.
In addition, the charges will not be legally recoverable by the health board until compensation has been paid, thus ensuring that the accident victim will not have to meet any costs until his claim for damages has been settled.
Section 2 (1) gives specific power to health boards to make charges for hospital in-patient or out-patient services on persons injured in road traffic accidents  who have received or are entitled to receive damages or compensation in respect of the accidents. The charge payable is not specified but would normally be the average daily cost per bed day in the hospital concerned. This will vary depending on the hospital involved.
I should make it quite clear at this point that there is no retrospective provision in the Bill and consequently these charges will arise only for cases where the injury occurs after the enactment of this legislation. Services provided in respect of injuries received prior to the enactment of this legislation will be dealt with in accordance with the existing provisions of the Health Acts.
Section 2 (2) allows health boards to waive the whole or part of the charge raised where the amount of damages received is either insufficient or has been reduced by virtue of contributory negligence of the injured person. This provision is necessary in order to prevent hardship on the injured party. Subparagraph (b) of this subsection is a technical provision which enables the courts to disregard the discretion of the health board to waive charges in deternmining the amount of damages to be assessed.
Section 3 simply provides for the recovery of sums due under section 2 and, as many of the court cases on road traffic injuries take a considerable time to resolve, it also provides that charges shall accrue on the date on which damages are paid or on the date on which the services were provided whichever is the latter.
In recommending this Bill for a Second Reading I want to emphasise to the House: (1) charges have been levied in these circumstances since 1933; (2) insurance companies have been paid premiums to underwrite these risks; (3) the Exchequer should not be called upon to bear the costs of negligent drivers; and (4) adequate precautions have been taken to ensure that no hardship will accrue to the injured party.
Loss of income from charges in respect of road traffic accident cases since the  Supreme Court decision has aggravated the difficult financial position of health agencies. The reimposition of these charges is therefore essential. It is currently estimated that the charges to be levied could provide income of up to £4 million per year.
Mr. Fallon: We all know that the delay in introducing this Bill has cost the taxpayer millions of pounds over the past few years. The Supreme Court in the case of Cooke v. Walsh decided, among other things, that hospital and medical fees incurred by a person in a road accident could not be recovered against the negligent driver who caused the accident because the injured party was entitled to these hospital services free under the Health Acts. When we talk about something being “free”, it is true to say that that is an incorrect word to use because, as we all know, nothing is free in this world, whether it is in this area of legislation or hospital charges or any other services that have to be paid for by somebody.
The effect of the Supreme Court decision of 1983 was that these hospital charges were paid out of public funds — in other words, by the taxpayer who is paying his insurance premium. We will come back to that in a moment. As a result of this Bill, I have no doubt he will be paying a higher motor insurance premium in the future. The suggestion that hospital charges should be paid by the taxpayer rather than by the negligent car driver is not tenable. There are many taxpayers who do not own a motor car and clearly there is no reason why they should have to contribute through their taxes to provide hospital services which are needed as a result of the negligence of drivers.
There is no reason to expect people who cannot afford cars to pay for expensive hospital services which are caused by negligence and dangerous driving of motorists. There is some similarity to the present insurance levy which, as a result of the PMPA episode, is now paid for by all non-life policy holders. That includes old age pensioners paying modest fire  premiums. They are penalised for the ills of that company and they were primarily a motor insurance company. There is a near comparison there. Going back to the question of whether or not the taxpayer will be paying extra insurance premiums, I think it can be said with certainty that the interministerial group of the Cabinet — I am not sure if the Minister is a member of that group — who investigated motor insurance premiums were clearly informed by the insurance industry that the Bill would increase motor premiums. As we all know, it is the stated commitment of the Government that they would endeavour to reduce motor premiums, but this is not helping to reduce the motor premiums which are clearly very expensive at the moment.
I am referring to insurance quite a lot because, obviously, it is an insurance/ health Bill. While we might have some reservations about the Bill, we would not oppose it. Coming back to the insurance/health aspect, I feel that in some way an opportunity has been missed by the Minister and his Department in dealing with this problem.
The whole situation regarding road traffic accidents, insurance claims and hospitalisation could have been rationalised here, to the benefit of the health boards, the insured and the insurance companies. The definition of in-patient and out-patient services is that assigned to them by sections 51 and 55 of the Health Act, 1970. This would mean that the cost of vocational assessment and training is neither chargeable nor recoverable. It could be argued that a person injured in a road traffic accident here has an incentive in some way not to avail fully of the various excellent rehabilitation services which are provided. We all agree that there are excellent rehabilitation services. The more rehabilitation given to a person, particularly in the area of orthopaedics which is almost certainly the result of car accidents, the greater the recovery and the better the person will be as a result of this rehabilitation. But almost certainly if that happens, the less the injured party will receive by way of compensation. There is some argument  for deferring calculations of compensation until the injured party has availed of whatever rehabilitation programme has been recommended following the medical assessment. Indeed, I would even suggest, so far as awards are concerned, that a comparison could be made to what happens with front seat passengers who are not wearing their seat belts, almost certainly their claim is reduced by about 25 per cent automatically. An argument could be made that unless rehabilitation services are fully adhered to a compensation claim might be reduced because of that. That would help to reduce insurance costs and the awards. However, it is proper for us to agree to improve the situation in which 465 people were killed and over 8,000 people injured in road traffic accidents in 1984. There could have been and should be a greater liaison between the Departments of Health, Environment and Justice in educating motorists to the fact that they are, perhaps, driving with too much drink, that they are not wearing seat belts. This area was missed in the Bill. The Government have a duty to see that everything that can reduce accidents is followed through.
I can recall here a recent Bill in this House, the Road Traffic Amendment Bill, 1983. I was disappointed at the time that the Minister for State, Deputy O'Brien, would not accept an amendment of ours which was simply to increase fines on people for obvious continuous driving without third party cover. Our amendment provided that notwithstanding anything in the Road Traffic Acts, in the case of the inadvertent non insurance of a vehicle a person shall be liable on summary conviction to a minimum penalty of £100. In the case of deliberate driving without insurance the minimum penalty of £350 should be imposed. That amendment was reasonable and one that would have helped the insurance industry and it certainly would have helped this problem of no insurance but, unfortunately, the Minister did not see his way to accept the amendment despite, as I said, the strong commitment there is to reduce motor insurance.
There is a further insurance aspect to  it in regard to this Bill and, perhaps, the Minister would comment on it. What happens in the case of a person who is injured and is paid by the Motor insurance Bureau? Is there any regulation for that situation and will the bureau be expected to pay in the same way as an insurance company would pay a claim that is legally binding on them? Are claims made by the Motor Insurance Bureau subject to this legislation? The question then is what happens if a health board is paid by an insurance company for injuries to a claimant who has been in hospital and who finds that they have to go back for hospitalisation after the claim has been settled after maybe two or three years — say arthritis sets in or something like that? What is the result of that situation? Can we further go back and can we further claim in a situation like that?
There are many instances we could give and, as I said, I see this very much as an insurance/health matter, for obvious reasons. Payment of claims is something that would apply in the area of health as well, in the area of payment of the health boards, of, perhaps, a periodic payment rather than a lump sum. I am aware of a case of a young child who had suffered serious injuries in a car driven by his father. The father was adjudged to have been negligent. There was a large award paid by the father's insurance company and not long afterwards the child died and the award became the property of the father. You had the case of the father profiting from, if you like, his own wrongdoing and, certainly, the purpose of periodic payments would be to adjust the compensation paid more closely to what it was intended to achieve. This could be followed through in regard to payment to the health boards for out-patient or in-patient services.
The problem with the Bill, too, for health boards is one that I am sure is worrying them. At the moment it is costing them £4 million as the Minister said. The long delays that are taken to settle claims — five and six years are quite  common — mean that the health board must wait five or six years for the money when this Bill is passed. The explanatory memorandum clearly states:
The purpose of the Health (Amendment) Bill, 1985, is to enable health boards to make a charge for in-patient or out-patient hospital services on a person who received or is entitled to receive damages or compensation caused in a road traffic accident.
It raises a question in the case of a commercial vehicle such as a van or small lorry: there is no obligation on the owner or driver of that vehicle to have full passenger cover. Yet, if a passenger is injured as a result of the vehicle hitting a wall, does this Health (Amendment) Bill apply in such a case? There is no insurance in force. Or take the case of an ordinary, insured person who hits a wall where there is no third party vehicle involved and the driver is injured. He is in a road traffic accident — that is what the Bill says — and there is no insurance company to pay his compensation. I know the Minister has referred to a waiver scheme but I am thinking of a case where a person could afford to pay. What happens in such a case?
The Bill could have been better if more consultation had taken place with the insurance industry. An aspect of the Bill which disappoints me somewhat is that there is nothing in the legislation or, indeed, in the Minister's statement to indicate his concern about the question of litigation and compensation involving the health services and consultants. As we all know, the involvement of consultants in court cases clearly disrupts the normal administration of the health services. This should be examined with a view to improving this position. There is very good reason why the present legal set-up should be examined to see if it still serves the best interests of our people or if a more practical or simpler method can be devised whereby consultants would not have to attend the High Court for days and, possibly weeks, waiting to give evidence when they would be better employed in their hospitals. Why could  not a very detailed medical report be supplied showing the injuries and the prognosis — or perhaps even a tape if that would be acceptable in a court? This would be better than the situation where these very busy specialists have to be away from their work waiting for an appearance in the High Court which can take anything from days to weeks.
Another aspect would be the loss to the Department of Social Welfare in terms of the social insurance fund through payment of disability benefit to persons injured in road accidents. Everything that can be done to reduce the size of the social welfare bill should be done. The number of people out of work as a result of injuries is growing and is of huge proportions. If this matter were examined it could be a major contribution to the social insurance fund as it would save unnecessary withdrawals and drawings from it.
The Bill provides that a health board only can make a charge. In the case of patients being treated in public voluntary hospitals will these hospitals be obliged to notify and supply the necessary information to health boards to facilitate the making of the charge? Public voluntary hospitals are not referred to in the Bill, which is an obvious omission. Will a claim fall to be made by the health board in whose area the patient is being treated? For example, if a person who is a native of, say, Athlone in the Midland Health Board region is injured in an accident, say in Cork, and has to be brought to a hospital in the Southern Health Board area, I presume that the health board in the area where the hospital is situated will have to bill him. I would like the Minister to comment on that. That is not fully clear. Will the income received by health boards in respect of patients treated in public voluntary hospitals be retained by the health boards or will it be collected by them on behalf of the hospital concerned? Will a consultant be entitled to charge a patient whose income at the time of receiving the injury did not leave him or her liable to pay consultants' fees for ordinary hospital treatment? There is no reference to that in the Bill.
 This is an important Bill. Perhaps an opportunity has been lost in not going further down the road on the insurance aspect of it. It is not a Bill that we would oppose but I would like to say that it was a chance to take a fresh, new, even radical look at what is necessary now for the future. Just because the system has been operating successfully since 1983 does not mean that there is no room for improvement. While we are saying that the Bill is necessary I feel that with greater consultation and greater cooperation we might well have had a better Bill.
Mr. Durcan: The purpose of the Bill is to enable health boards to make a charge for in-patient and out-patient hospital services in respect of a person who is entitled to received damages or compensation for injury in a road traffic accident. As such, I welcome the legislation. While fully supporting the principle underlying the Bill, I have certain reservations about some of the technicalities of the Bill which I will express later. Indeed, I give notice now that I will be putting down amendments in relation to certain aspects on Committee Stage.
The items in respect of which payments may be claimed and in respect of which the health boards may recover are items of special damages which, until the Supreme Court decision in the case of Mark Cooke v. Patrick Walsh, were normally recoverable. The result of the Supreme Court decision in that case was that the statutory instrument made under the 1970 Health Act, by virtue of which such damages were claimable, was declared ultra vires the power of the Minister. The effect, therefore, of this Bill would be to put somebody, the health boards in particular, back into the situation that existed prior to the 1970 statutory instrument and to provide a firm statutory basis. When the 1970 Health Act was debated in both Houses of the  Oireachtas this point was raised and the then Minister for Health gave assurances that damages in respect of personal injuries arising out of road traffic accidents could include a claim in respect of hospital service charges. The unfortunate thing is that the statutory instrument which allowed that situation to become operative was badly based.
At the outset, I mentioned the underlying principle of this Bill and I suppose the question we are faced with today in terms of broad principle is whether the Exchequer should bear the cost of negligent drivers on the one hand or whether the cost should be borne by the negligent drivers themselves through their insurance companies on the other hand. I have favoured the latter approach and for that reason I support the principle underlying this Bill. I might say in passing that, if one supports that principle, one must take cognisance of the principle underlying certain other legislation which allows people recover damages in respect of injury caused. I refer to the malicious injury code which allows damages to be recovered from a local authority in respect of damage to property under certain circumstances. Certainly, if one accepts the principle underlying this Bill then there is a very strong argument for seeing that the malicious injury code is abolished and for putting the onus on property owners in all circumstances to insure their property against malicious damage.
Likewise, if one accepts the principle, the argument can be put forward that the criminal injuries compensation scheme should be completely abolished and not merely whittled down in its operation, as has been done recently. I just make those points because I think they are relevant to the principle underlying this Bill. It is important that the Oireachtas and the Executive get their minds clear about what is to be the principle underlying claims for damages in respect of compensation arising out of injuries caused. It would appear that we are now operating on various bases in respect of different types of injuries arising under  different circumstances. There is certainly a conflict as between the two principles I have mentioned.
The Minister said here today, and the Minister of State said in the Dáil, that this provision will not operate or cannot operate retrospectively. That was read into the record in both Houses. Certainly, on a clear reading of that subsection it cannot be so construed: the subsection can be construed as stating that the provision can operate retrospectively. If this Bill is enacted as specified it will then be possible for a health board to institute a claim against a person in respect of services provided where a claim has arisen between December 1983 and the present time and where a claim may very well be settled. I am not satisfied, if we enact this Bill as specified, that such a situation will not arise. Other than that, we depend on the goodwill of this Minister or the goodwill of the health boards. When it comes to a question of money or the scarce resources the Minister referred to, then the goodwill is something which is not a very strong argument.
I am extremely worried about that section. Whereas I accept that the Minister's commitment that the Bill will not operate retrospectively has been given here today in good faith, and likewise given by the junior Minister in the Dáil in good faith, I am not at all satisfied that it will prevent a health board from operating as against that commitment. Health boards have been known to operate against the Minister's wishes in the past in other areas and they may do so in this area also.
 ...the health board shall, notwithstanding any thing in the Health Acts, 1947 to 1985, make a charge upon the person who received or is entitled to receive such damages or compensation in respect of the said in-patient services or out-patient services.
I am worried about the words “or is entitled to receive”. Circumstances may arise where a person does not receive damages. Circumstances may arise where a person does not institute a claim, for good reasons. Certainly, if the Bill is enacted in that form, this gives the health boards an opportunity to pursue such a person under those circumstances even where damages have not been recovered. That is something that requires to be looked at and something that must be prevented.
The third area of concern I have is in relation to subsection (2) (a) (i) and that is where the health board may waive, having regard to the amount of damages or compensation. I do not think that that section is sufficiently protective in cases where the amount of damages may be minimal. It is a subsection that should be looked at between now and Committee Stage.
I am also very concerned about the operation of section 2 (2) (a) (ii) and that is the power of the health board to waive in cases of contributory negligence, presumably where such has been established by a court of law or where such has been agreed upon between the parties where a case has been settled. The subsection as drafted says that under those circumstances the health board may waive. The Oireachtas should impose a positive duty on the health board to waive. For that reason, I will be putting down an amendment to the effect that the health board shall waive under those circumstances and that the amount recoverable should be pro rata in relation to the apportionment of negligence.
The situation could arise where somebody institutes a claim and the court could hold that a person who institutes the claim is 50 per cent responsible for the accident. The court may hold that the amount of damages awardable is, say,  £100,000, that person would then receive £50,000. To my mind, if the amount due to the health board came sufficiently within the ambit of the amount received by the plaintiff, then I am not satisfied that the health board would have any regard for the contributory negligence aspect and would pursue their claim in full as against the injured party. The amount that a health board should be able to recover under those circumstances should relate to the contributory negligence award only and should be limited to that level.
The fifth point which causes me concern — and I am outlining these things in some detail in case we are having Committee Stage today so that the Minister may be on notice as to what I will be raising — is in relation to section 3 (2) which deals with the operation of the limitations in relation to claims of this nature. The section reads:
Without prejudice to Part III of the Statute of Limitations, 1957, a cause of action against a person in respect of a charge under section 2 (1) of this Act shall be deemed to accrue on the date on which damages or compensation are paid by the person liable to pay such damages or compensation or on the date on which the services to which the charge relates are provided, whichever is the later.
I believe that section should be changed to provide that the operable date should be the making of the award by a court of competent jurisdiction in a case where a matter is proceeding within terms of litigation or where a matter is settled without resorting to litigation on the date on which the compensation is paid. That can have a substantial material effect on a claim in a situation where the Statute of Limitations would be raised.
These are the points I want to make in relation to this Bill. It is a technical measure. I have outlined my reservations regarding certain of the technicalities underlying the Bill. So far as the principle of the Bill is concerned, I fully support it. I fully support the Bill for that reason but I would hope that the Minister will  take cognisance of the points I have made on the technicalities.
Mr. Fitzsimons: I am also supporting the Bill in so far as it goes and with the reservations mentioned by Senator Fallon and subject to the amendments which he mentioned he would be putting forward. The case is one to which no reasonable person could take exception. My contribution will be very short because it is an area with which I am not familiar and also the Bill itself is very brief. It deals solely with the consequences of motor traffic accidents. The first question that comes to my mind is why accidents outside road accidents are not included. We have very serious accidents with machinery on farms and other places. I am sure that they are covered in some other way but the first question that comes to my mind is why could we not have an all-embracing Bill which would cover any accident, insurable or otherwise? This could perhaps make the Bill a better one. However, it is related to motor traffic accidents, the figures for which are very high. According to An Foras Forbartha, in 1984, 465 persons were killed and 8,210 were injured at a total cost of £220 million, which is a very considerable sum of money. The first thing we must do is think of the causes of these accidents and what can be done to eliminate them or reduce them considerably. Drink, unquestionably, is a very big factor. As a nation we consume far too much alcohol and I welcome any move which helps to reduce this consumption. In this respect the new laws on opening hours, if introduced, will not be a help; in fact they will make the situation far worse.
Speed is another problem. Everybody seems to be in a hurry no matter where they are going. When I am coming up to Dublin I drive at a reasonable speed, but cars and other traffic pass me by at a speed far in excess of the 55 miles per hour limit. While I know there have been many prosecutions for excessive speed within the urban boundaries, I do not know many cases where people have  been prosecuted for speeding outside those areas.
Carelessness and bad manners present another serious problem. No matter where I drive — and I am sure this is not only related to myself — I encounter drivers who hoot their horns continually for the slightest mistake made by anybody. This is downright bad manners and does nothing to help people. There is also the criminal element involved in the stealing of cars and speeding. I heard on the radio this morning that the chains which were to be provided to apprehend these people are not available throughout the country but only in a restricted urban area.
Seat belts are most important, and it is encouraging to learn that 70 per cent of drivers wear seat belts. But this compares with 90 per cent in other European countries and some attempt should be made to improve on our figure. The Garda do their duty. They have far more serious problems to deal with, but it is important to wear a seat belt and I do not think anybody has any doubt about that. Anything that can be done to reduce accidents would be welcome.
Education is very important and the Health Education Bureau do a very good job in the whole area of concern for health. Perhaps if more funds were at their disposal they could do far more. In this area advertising would be an important factor, and I am not thinking of the conventional advertisement. Actual situations should be shown, the problems related to accidents, what caused them and how they could have been avoided. This type of advertising would be educational and would help considerably.
Some people would say that there are vested interests in the area of motor accidents, in the legal and medical professions, but I am quite sure that while many people reap a very good harvest from motor accidents nobody would be so evil as not to want to see the situation improved. A large sum of money is involved and the Minister told us that the charges to be levied could provide income of up to £4 million per year. In many cases this money is paid a long time after  it becomes due. Could some means be provided for payment at the appropriate time and, if not, is there an interest charge for delays, because in many other areas where money remains unpaid for some considerable time there is an interest charged on it? Does this apply in this instance?
Where serious injury takes place and there is a problem about car insurance, compensation is paid from a special fund. This is admirable, but where a commercial vehicle is involved there is no payment. I know of one situation where two young girls who took a “lift” to a dance were seriously injured and because they were not properly covered in the van they got no compensation. If they had been in a motor car they would have been compensated. This anomaly should be eliminated. The only difference was that the van did not have windows in it as a car would have had, but in all other ways it was similar. It was a small vehicle that took these people from one place to another. I would ask the Minister to look seriously at this problem because these two young girls were seriously injured and disabled to a considerable extent for the rest of their lives. They were also disfigured to some extent and there was no compensation available for them. This is wrong.
Senator Fallon has referred to the consultants and expert witnesses and I am sure some way could be found to avoid the waste of time attending a court hearing. Anybody who has attended as an expert witness at a court, or indeed as any kind of witness, knows that time means nothing in the court. The person could be held all day and indeed for many days. I would agree with Senator Fallon that some means should be found to reduce this time because a consultant charges for all his time, even the time he is not in the witness box and that to a large extent, while he may be paid for it, is wasted time. Something should be done in this area.
There is also the effect on health services in consequence of these accidents. Beds are taken up, particularly in orthopaedic hospitals, and other cases are kept  waiting for a long period, for example, hip and knee operations. People suffer in this respect. Doctors and experts would have far more time to make progress in the area of rheumatism and arthritis if they were not detained due to accidents which occur through carelessness.
Inevitably there will be an insurance increase and I wonder has the Minister taken this into account. What increase might we expect? As Senator Fallon has said, there is a special committee attempting to see that insurance charges are reduced. They are far too high at the moment. In many cases very high payments have been made and many of us know of incidents where high payments were made to people who unfortunately did not live long enough to enjoy the money and it passed to relatives and people not so closely related.
I, too, would like to know what the situation is regarding voluntary hospitals. The prime concern of the Minister is for the health boards. At the same time the voluntary hospitals fill a very important role. I am sure it would be the concern of the Minister to see that voluntary hospitals are paid in the same way and continue to do the important work they are doing.
The Minister said that the charge is not specified but would normally be the average daily cost per bed at the hospital coancerned. I notice that the consultant's fees are not included. Perhaps this is the concern of the consultant himself, but I am sure there would also be cases where the medical people involved might be remunerated by the hospital. Is that charge also included?
As the Minister has told us, the principle of recovering the costs of road traffic victims can be traced back to the Road Traffic Act, 1933. This was disrupted in 1983, due to the judgment of the Supreme Court in the case of Cooke v. Walsh.
There is nothing contentious in the Bill except, as Senator Fallon said, it does not go far enough. The general thrust of the Bill and the general principle is one to which no reasonable person could take exception.
Mr. Ferris: It behoves all of us as legislators, as a socialist, which I claim to be, or otherwise, to protect the taxpayer from the capitalist system, which in this situation is the insurance business.
Mr. Ferris: I am sorry, a Leas-Chathaoirligh. You were out of the Chamber when the other comment was made. The Senator was worried about why we could initiate legislation like this, which was pragmatic but perhaps not socialist.
Mr. Ferris: You should not, and neither should the Opposition. It is important to protect the taxpayer in a situation such as this. At present, with the anomaly that has arisen out of this court case, the taxpayer is funding, by way of services provided, insurance companies which are already charging a premium to cover this particular risk. The Supreme Court decided in December 1983 that the then Minister did not have the power under the 1970 Act to make a regulation which would allow us to charge for services given in road traffic accidents. I am satisfied, as an insured road user, that my premium was not reduced as a result of the December 1983 court  decision. The insurance companies have been charging a premium to cover this risk and since that court decision have not reduced their premiums. The taxpayer is now at risk of having to compensate the health boards for the services they gave to road traffic victims. It is appropriate that we should legislate to allow no loophole for the Supreme Court to make a decision. That is a fault of the 1970 Act. The then Minister, the late Mr. Childers, committed himself to ensuring that charges could and should be made where decisions were given in court and he implemented that. Indeed, a previous Act going back to 1933 had been implemented. I found, when I was a member of a health board in 1983, that this decision left the health boards in a very vulnerable position.
One can argue that a person who was a medical card holder and who had a road accident was entitled to hospital services. However after a substantial award, three or four years later, it would be arguable whether a person was still entitled to the health services. That can be applied to the whole 1970 Act, which ensures that everybody is entitled to free hospital services. It is only at certain levels of income that a person is obliged to pay consultants' fees. In court cases everybody is compensated by the decision of the court, including the consultants' and witnesses, except the taxpayer who in this instance is represented by the health board, which provides emergency services. I am satisfied it is appropriate that we should tidy up the anomaly that is there. I am also satisfied that the existing premiums charged by insurance companies take into account the fact that they are likely to be called upon to meet this charge.
Some interesting points have been raised by Senators. Perhaps the Minister will deal with them in his reply. We can then make a decision as to when we will take Committee Stage. If we get assurances and have a discussion on possible amendments, the Minister can reassure the House as to how we can move on this legislation. I am satisfied that it is necessary legislation. I am satisfied that it is relatively simple: it is regularising a  situation which we all thought prevailed under the 1970 Act.
I would like a few points clarified. They deal particularly with court cases and decisions of the court. Senator Fallon made the point that the insurance company will be paying the money and that they will be deciding. I take it the legislation refers to decisions made in the court which will allocate expenses for the injured party. The consultants will be compensated for their time and efforts. The hospitals will be covered. But this is presuming that the case goes to court and that a jury or a court will give a decision in favour of the plaintiff. However, if an arrangement is made between two insurance companies that rather than go to the expense of going to court they will settle the case outside court for, perhaps a larger amount of money and if the person benefitting has already been a patient in a hospital, how will the health board know what goes on behind the scenes or what settlements are made outside court? Does this Act give power to the Minister or the health board to recoup directly from the insurance company the expense involved in the provision of the service? The Minister is talking about allowing health boards to waive charges where the court awards an amount which would not cover the hospital charges. I am not sure what the overall loss to hospital services is. A figure of £4 million was mentioned. Is this an annual figure or is this the loss incurred since the court decision of 1983? Most medical services given, except in extreme cases where people are hospitalised for an extended period, would run at £2,000 or £3,000. If a decision is arrived at by an insurance company confidentially, how will hospitals and health boards become aware of that decision? What I want to avoid is people having to go to court to get compensation so that the health board can be paid because the Bill mentions “decisions of the court”. If I could have clarification of that it would make me happier about what we are doing. We all want the boards to be compensated for the services. We all know that people are paying insurance premiums to cover that. We do  not want the insurance companies to get away with this legitimate charge. We also want to ensure that the legislation is not draconian and that there would not be loopholes in it. Chief executive officers of health boards have quite substantial powers of discretion in regard to medical cards, hospital service cards and a whole lot of other areas which are decided in offices. People can make direct representations, and we all do. Discretionary powers are ones that always worry me. They have worried me in the social welfare area. They have worried me in the supplementary welfare area. I have already put my views on that subject on the record of this House. I do not like discretionary powers. If one can have something that is black or white it is probably better. Discretion is the better part of valour, they say, but I know that discretion can even be politically motivated. In a small democracy it is appropriate when given a discretion, to make a decision based on the evidence before one and not on who presents it. Let us ensure, if we are giving discretionary powers, that they will be used for the benefit of the person who is expected to pay for their hospital services although at the time of the accident they would have been entitled to free hospital services.
I do not have any problems with this legislation. I served on a health board for many years where we thought we had this power. It did not create any problems for us. It gave us a source of income for a service we were giving. The service we give is a good service in spite of some of the comments made by some people and the criticisms that have been levelled at the Minister. It is a service that a lot of people do not appreciate until they require it. It is often only when they require a health service that people are prepared to pay for it. The PRSI contributor has no option. He has to pay for it out of his pay packet every week. I have found that people who have the discretion to pay for the service, because they are either self-employed or in a category outside of the PAYE sector, have allowed bills in health boards to accrue for a number of years. It is only when  they require the hospital service that they look for the facility to pay back the four or five years of arrears which they owe.
There has been an improvement in this area, but it has taken a lot of coaxing to get people to pay their health contribution. The boards have been so inept at collecting this contribution that the Government had to resort to putting it into the area of the Revenue Commissioners to collect it. That is the attitude among a section of the public who always ensure that they have their VHI contributions paid up and that they benefit from their VHI membership although they have benefited also from a lot of direct public input into the provision of the basic services. They never dream for a moment that the taxpayer has to be compensated in any way for having built the hospital, provided the hospital with staff, provided food, medicine, doctors, nurses and so on. That is part of the PRSI and the taxpayers' input. The VHI is the exclusive right of other people who require a personalised service. That is very nice, and if people want that service they are entitled to have it. But let us ensure, if we are giving a public health service, that in an area like this, where there are people insured in another way, the health boards will be compensated appropriately and that we will have some revenue accruing from a situation where up to now, because of the Supreme Court decision, we have not had that power. It is appropriate to put the matter right.
Perhaps the Minister would respond in his reply to some of the points we have raised. We would then be in a position to decide when to take the Committee Stage. I am anxious to regularise this and I want to facilitate the Opposition or anybody who wants to put amendments down. Nobody intimated to me until today that they had problems with the Bill. Perhaps we could come to some agreement between the Whips about this.
Mr. Mullooly: I welcome the opportunity to make a few brief comments on this Bill. The explanatory memorandum states that the purpose of the Bill is to  enable health boards to charge for hospital services provided to a person who received or is entitled to receive damages or compensation for injuries sustained in a road traffic accident. Like the previous speakers I agree with the principle of the Bill although I, too, would like to be informed about what the position is in relation to persons who receive damages or compensation in respect of injuries suffered in accidents of other kinds. I wonder if the situation is that these people are entitled to the services that their eligibility under the Health Act entitles them to, or are they also liable for hospital charges. As has been stated by the Minister, the necessity for this Bill arose because of the decision of the Supreme Court on the 16 December 1983 in the case of Cooke v. Walsh. The position prior to that case was that a person who was treated in hospital for injuries received in a road accident had to pay for such treatment irrespective of his or her entitlement to services under the Health Act. This was because article 6 (3) of the Health Services Regulations, 1971, excluded from the class of persons with full eligibility for hospital in-patient and out-patient services those who required treatment for injuries received in a road traffic accident unless it appeared that such persons would not be entitled to receive damages or compensation from another person in respect of the injuries.
I understand that it was conceded in the Cooke v. Walsh case that but for this regulation the plaintiff would have been entitled to hospital services free of charge. The Supreme Court decided that the regulation in question was ultra vires the Minister because it purported to exclude from the benefit of the services a category of persons whose exclusion was in no way authorised or contemplated by the Health Act. The effect of that decision has been that health boards can no longer charge road traffic accidents victims for hospital treatment merely because they were road accident victims. Accordingly, the position since has been that, irrespective of whether a patient is a road accident victim, he or she must be provided free of charge with  whatever hospital or medical treatment he or she is entitled to under the Health Act.
This Bill provides in section 2 that the health board shall make a charge against the person who is injured in an accident or against his or her personal representative in respect of that person's in-patient and out-patient services arising from the accident. The effect of this will be that if a person is injured in an accident the relevant health board will be obliged to hold that person responsible for hospital charges arising out of the accident. Section 2 (a) provides that under certain conditions the health board may waive the whole or part of any charges due to them.
This waiver, of course, is limited and one would be dependent upon the discretion of the health board. The phrase used in the section is that the health board “may waive”. A position could arise whereby a person might be seriously injured in a road traffic accident and might be hospitalised in intensive care for a month or two months thereafter and might subsequently die. That person's personal representative might not be aware of the legal situation regarding claiming compensation, might do nothing about the matter and would then find himself being pursued by the health board for possibly a huge medical bill. It could also happen that a person might decide not to bring a claim arising out of an accident as such a person might feel that he or she had a very flimsy case on the issue of liability. Here again this person would be liable under the proposed legislation to pay the health board.
One can also envisage how this proposed legislation could affect the possible settlement of claims. There might be a case whereby a person suffered very serious injuries which resulted in huge hospital bills. However, that person might be in trouble on the liability aspect of the matter. Often in such cases the relevant insurance companies make efforts to settle the claim for considerably less than the full value. In the normal course of events a person who is made such an offer might be well advised to  accept the offer because of his position on liability. Under the provisions of this Bill it would seem that such a person would have to consult the relevant health board first to see what their attitude would be to their expenses, because if a person was being offered a settlement on a fifty-fifty basis he would probably have to be satisfied that the health board would also agree to their costs being settled on a fifty-fifty basis.
One could have a situation where a claim might be worth in its full value a figure in the region of £400,000 of which £200,000 might comprise of hospital bills. In that case, if a person was very weak on liability and if an offer of £100,000 was made, it would be unwise for the person involved to accept that offer, even though it might be a very good offer, without first consulting the health board. If the case was settled for £100,000 then the health board could not only recover the £100,000 settlement from the injured person but they could also sue him for the balance of the fees due.
Like the other speakers, while I agree with the principle of the Bill, I have reservations about it; and I certainly agree with many of the reservations that have been expressed by Senators Fallon and Durcan and the other Senators who have spoken. On the final page of his speech the Minister, in recommending this Bill to the House, made four points. He stated that charges have been levied in these circumstances since 1933. We all have to accept that point and agree with it. Secondly, he made the point that insurance companies have been paid premiums to underwrite these risks. I accept that insurance companies do, in computing their premiums, take into account the risks of treatment costs and medical costs. He also stated that the Exchequer should not be called upon to bear the cost of negligent drivers. Again, we would have to agree with that point. However, I have reservations about the fourth point he made, which is that adequate precautions have been taken to ensure that no hardship will accrue to the injured party. As I see it, the injured party in many  instances will be at the mercy of the discretion of the relevant health board.
The Minister has not stated what the position will be in the case of people who receive out of court settlements or settlements from the Motor Insurance Bureau. Neither has he stated what the position will be of persons who might be entitled to some compensation or damages but who for one reason or another do not claim. He has not stated what the position will be in the case of a person who receives a settlement without admission of liability or without an admission of negligence.
Section 2 (a) refers to the fact that the injury must be caused to a person by the negligent use of a mechanically propelled vehicle. As we are all aware, on occasions compensation is paid without any admission of negligence. This can be particularly true when the compensation is paid for mental distress. I would like to know what the position will be of persons who receive compensation where negligence is not admitted.
Also I would like to ask, in relation to section 2 (c), who will determine whether a person is entitled to receive damages or compensation. In my view, only a court can determine whether a person is entitled to receive damages or compensation, but the Bill here would appear to put the onus of so deciding on the health board.
The Minister also seems to imply in his speech that the waiver will only apply in the case of claims which are determined by the courts. I would like an assurance from the Minister that the waiver will apply to all claims irrespective of whether they are determined by the courts or whether they are arrived at by way of an out of court settlement. Indeed, as a previous speaker has said, I would like to see that section strengthened up very much in that I would like to see a situation where the board would be obliged to waive either the whole or part of a charge in certain cases.
While I agree with the principle of the Bill, I have reservations about certain sections of it and I will be very interested  to hear the Minister's reply to the points I have raised and to the point that have been raised by other Senators.
Mr. Robb: I believe this Bill opens up a debate about many aspects of the obligation of the State to cope with the accident victim and the way in which he is to be compensated. In welcoming the spirit of the Bill, in sharing some of the concerns that have been expressed about the way in which it will be operated and the wording of it, it is important for us to identify the three areas which have been a cause of concern and which have been expressed by various Senators.
First of all, there is the area of personal compensation for accident; second, there is the cost to the health services and rehabilitatory services involved and, third, the cost to the rest of us in the form of the State and the taxes we pay to the State for the service we provide and the way in which we compensate people affected by accidents. I can introduce the subject right at the coal face. In my experience as a surgeon one-third of all the work I do is traumatic and urgent that is, it is the result of some form of accident whether it is an accident at work, accident at home, accident on holiday, accident on the roads or accident through civil disturbance.
It has always struck me as very odd that in certain circumstances you could fall and paralyse yourself and get nothing, no compensation from anybody, and in other circumstances you can get vast compensation, you can die the next day and your relatives can be rich for ever afterwards.
It has been alluded to by Senators that one needs to look into the whole area of how compensation is paid and on what grounds it is paid. It is quite at odds to fall off the Giant's Causeway, fracture your back and get nothing — it is looked upon as it was your own fault — and to fall off a step ladder in the Oireachtas and be able to sue the State for thousands of pounds for the same injury.
I would like to illustrate another point. I remember a man in Ballymoney being  shot through the thigh about 12 years ago. We brought him into the hospital, looked after him, rehabilitated him as best we could, and sent him home. The great day came when I got the solicitor's letter to write a report and say what state he was in. When this citizen who then lived among us but is now in exile, arrived into the out-patients department, he hobbled in with a stick and suitable facial contortions. I examined him, and being fairly gullible by nature, I thought he was in a severe state of decomposition as a result of his injury and I duly wrote a solicitor's report. Fortunately that report, through procrastination, lay on my desk for a number of weeks.
In the ensuing time the glorious twelfth of immortal memory was celebrated in the streets of Ballymoney and I went out to watch the bands passing from the front of the hospital and to my utter amazement I saw my erstwhile injured man walking out with the best of them in his best suit making for the field. I was able to go back to the letter and put a PS to my solicitor's report that “since writing this I have had an opportunity to observe your client marching with his lodge on the 12th July and he seemed quite remarkably to be restored to his normal state of health.” I only mention that in passing because there is the professional class conspiracy and there are also some conspirators who are not in the profession in relation to the whole area of claims. There may be the exception but nevertheless they exist and one needs to be very wary.
When we move into the area of cost to the State, cost to the insurance companies, cost to the taxpayer we should start to look at how these costs are met. No one who is practising in the area of trauma and who has been asked to give legal reports will be unaware of the ridiculous situation in which you give a report, two years later you are asked to give another report on the same person, two years later again you are asked to give another report, and finally the case comes to court and is duly settled. For all of these reports you are expected to send in a fairly handsome fee and if you consider  that you are not the only surgeon involved, that there may be two or three not only in your own town but in other towns, and then you arrive in the court and there is introduced this extraordinary thing which I thought should have been alien to justice: you are asked which side you are on. I thought if one was giving evidence one should be giving evidence regardless of sides but I am told that is not the case.
I hope I will see the day when the fees that are paid to people like myself for legal reports and for going to court are made public and that we know where we stand in relation to the amount of money that is going to the professional, expert witness because that comes out of the insurance company. That needs to be said because otherwise we have got a professional class conspiracy going on behind closed doors. The onus is on those who do not believe that there is such a thing to be prepared to push out into the open exactly what money passes hands when cases go to court and when expert witness is given. I look forward to the day but I think I may be a very old man before it actually comes about.
I would like to take up the points raised by Senator Fitzsimons in particular because he spoke almost as though he was in a casualty accident department. Of course he is absolutely right. The cost for accident surgery would be greatly diminished if we paid serious attention to prevention. I know the Minister is very keen on prevention as indeed former Ministers for Health have been. I could not emphasise enough the need to get across that seat belts are part of the law of the land and if there was no other distinction to be made between the North and the South of Ireland one could make it in the area of seat belts. One sees very few people driving around in the North not wearing seat belts. I can hardly ever see anyone wearing a seat belt in the Republic in spite of the figure of 66 per cent which was quoted today. I have even asked a taximan in Dublin where his seat-belt was and the man looked at me absolutely thunderstruck and dismayed. Then I have to ask: “You do have a seat belt  law down here”. Sometimes one wonders. As a person who opposed the introduction of seatbelts on the grounds that it was an infringement on individual freedom of liberty and so on, I am now a complete convert. I see it in my own practice. I no longer have to sit through the night. One, two or three hours stitching up peoples faces in particular. There is no doubt that if seatbelts were properly used there would be a dramatic fall in the incidence of need for hospital attention, the costs that go with it and the unpleasantness for those affected.
The next point is about speed. I have been driving up and down to Dublin — I used to come by plane, then I went by train and now I come by car because of the fact that I had a problem in the hospital last year which literally shook the living daylights out of me. I have been coming by car since and I drive at a fierce speed. I have never been stopped nor have I ever felt that there was any likelihood of my being stopped by anyone in a speed car. There is absolutely no doubt whatsoever that the incidence of accidents is related to speed and the faster you go on Irish roads the more likely you are to have accidents.
The state of the roads is important but more important is the MOTing of cars. It is no good driving carefully if the brakes do not work. Part of the greatly decreased incidence of road traffic accidents in the North has been due to these factors, (1) they are very fortunate due to the subsidised money that has come in from across the water, to have excellent road surface; (2) the MOTing of the cars; (3) seat belts; and (4) the greater attention paid to random testing of blood/alcohol, urine/alcohol or the breathalyser test on the road. These are all very important.
When we move on to the area of insurance, there is a trend in western society where your friend asks if you are insured and, your garage asks if you are insured. The implication in the first case is that he will sue if you are insured but he will not bother if you are not because it is a trivial injury. Then the garage asks. Will the hospital now find out if you are insured?  What effect will this have on hospital charges? We need to be very careful that we do not move into an area where the health boards see the possibility of recouping money through insurance companies on victims of accidents. I am sure the Minister will have that taken into account by the time this Bill is enacted. There seems to be a trend in that direction, and it has had very regrettable effects, along with the increase in litigation, on the practice of surgery and on the practice of medicine in general. People are now practising with one eye on the patient and the other eye on the legal process, and not necessarily making the decisions which are correct for the patient because of the worry and concern about where it might land him if there is a legal complication.
Important points were made about the time taken up in litigation. You only have to go to the High Court and do a quick check on how many consultants are standing around. One should also ask who is doing their work? If you are a full time consultant it is arguable that any fees accruing should not be accruing to you at all; and if you are a part time consultant is more time than what you are contracted for being allowed for extraneous activities such as attendance at court? All of these things are brought to mind by the proposal to introduce this Bill. I have been part of the system. I have seen it. I have criticised it. I have been part of the criticism. We should discuss these matters quite openly because vast sums of money are undoubtedly involved in the whole processing of litigation for compensation claims for accidents. It is important at the end of the day to ensure that those who suffer injury get the compensation which is due to them and that that compensation is reasonably allocated and is justly collected.
There is need to look into the whole area of accident compensation, not just road traffic accident compensation. Road traffic accidents are only one section of that 33 per cent of common surgical practice which reaches our hospitals and which costs the State so much. I welcome  the Bill. The health service should not be paying for other people's negligence. At the same time those who find themselves in a hospital bed must be protected. I also feel that the citizen in general should have the same sort of protection, regardless of where he has his accident or what causes it, as is implied by the insurance cover of people affected by road traffic accidents and, of course, he should receive the same service.
Mr. Smith: Most of the points which I had intended to speak on have virtually been covered by earlier speakers, so I do not intend to bore the House by repetition. This Bill is fairly necessary and has wide support in the House. It arises because of the Supreme Court decision in 1983 which declared that the Minister's powers with regard to the recovery of hospital costs for accident victims under the Road Traffic Act were null and void. There has been some reference during the afternoon to negligence of one kind or another. I wonder is the Minister for Health a bit negligent.
This is a very simple Bill. During the past two and a half years health boards have lost very considerable amounts in their incomes. During that time they have been faced with making decisions, as has the Minister himself, which were of a very extreme character and which, many would agree, reduced the quality of the health services in the country. I am asking this House is it then proper that we should wait two and a half years for an extremely simple Bill which returns the power to the Minister which he was understood to have prior to 1983. That is an inordinate amount of time for the Minister and his officials to bring to this House this Bill, which is widely supported, is very necessary and seems to deal with the nuts and bolts of that problem.
I could not put an estimate on the amount of money which has been lost. Obviously, the insurance companies took this risk into account in determining their premiums. Why should those of us who are members of health boards be faced with the day to day problems of trying to cope with carrying on the health services  in the face of cutbacks when there was a mechanism available all of this time which would have brought significant funds into the health boards?
I would like to ask the Minister to indicate to this House the estimated loss of income to the health boards over the past two and a half years arising from this Supreme Court decision. Would he indicate to the House to what extent during 1986 the health boards have assumed income from this source in the knowledge that this Bill was coming before the House? If it passes all Stages it will have about six months to run. Has an estimation been given to the health boards and have they in turn estimated what their income will be arising from it and has this been taken into account in the overall decisions which are being taken in relation to their budgets?
The cost to health boards as a result of traffic accidents is quite enormous. We know that 80 per cent of the surgical and medical activities in the orthopaedic hospitals is catering for accidents. I acknowledge that a number of those accidents happen at home and not on the road. However, it is a safe bet that more than 50 per cent of the time of the consultant, medical and nursing staff in the orthopaedic and rehabilitation centres is taken up in dealing with accident victims. Therefore, I support all the Senators who have pleaded for a more positive attitude towards the prevention of accidents, whether it is an improvement of roads, a reduction in the level of alcohol which people who take charge of cars consume, defective vehicles, more comprehensive coverage and detection on the part of the Garda of habits which tend to lead towards accidents.
We need to concentrate on that area. While we are talking about funds and about ways to increase the health boards' funds, the real trauma, the real problem, is for the victims, many of whom are deprived of their lives and others very considerably deprived of the use of their limbs for very long periods. While we acknowledge that the health boards and the hospital services have to be available to give the best possible service to these  victims, the cost of this should not have to be determined prior to the services being provided. This Bill is very necessary and I am absolutely at a loss to know why it could not have been introduced two years ago.
Mr. O'Leary: I would like to draw a distinction in respect of this Bill between the principle of compensation or of reimbursement to the health boards of the expenses which they have incurred as a result of treating road traffic accident victims and the actual method which the Minister proposes to introduce to bring about that objective. I am unenthusiastic about the principle but I can assure the Minister that I have no intention of objecting to the principle and that I know it is a matter on which people have different viewpoints. There is not a correct side or a correct view on it. We are really deciding that it is better to have slightly higher levels of motor insurance premiums and slightly lower levels of taxation. In the long term, we are shifting resources from one side to the other. I could have very little objection to the Minister's objective in doing that, as long as we realise that is what we are doing.
It is simplistic to ask whether premiums have come down in the intervening period of time. Premiums are adjusted from time to time and take into account every single factor which makes up the insurance risk. This, of course, is just one such factor. It is impossible to prove that premiums have not gone up by as much as they would otherwise have gone up but that argument will be made by the other side. It is simplistic to suggest that this should have given rise to a reduction in insurance premiums and it did not. I do not think we should approach it along that road.
The point made by Senator Smith is a good one. I do not understand why the Minister should have to wait for two and a half years to introduce this Bill. No doubt he will tell us the reason for that. I was quite interested to hear what Senator  Robb had to say about the whole principle of compensation for accident victims generally. It is true, of course, that a very convincing argument can be made against substantial capital sum payments. I must say that I find myself in sympathy with the general viewpoint that these capital sum payments should not be made on a philosophical level. However, the problems that would be created by substituting for that, for example, a weekly payment, is such that you would reinforce dependency in the population. If lump payments have any benefit they have the benefit of bringing to an end the period of time in which people who have been subject to these injuries must, even subconsciously, consider themselves to be still suffering from whatever disability they allege they have been suffering from.
It is not just a question of honesty. It is a question of a subconscious feeling that I hurt my neck or my back in a traffic accident and it does not clear up until after the court case is over. If you have a situation where people are going to be paid a weekly sum for the rest of their lives it could become a growth industry. Everybody will want a weekly sum which will be a guaranteed income for the rest of their lives. I know the Irish people and that is the way they would react to that scheme. They would react to it in the same way as certain sections of the population react to the disability benefit scheme, that it is some kind of a scheme which can be used for the granting of premature old age pensions to people rather than granting them protection for temporary disablement or permanent disablement which was the original purpose. Maybe lump sum payments are a bad idea but I am not altogether convinced that the alternative of weekly payments is suitable to the Irish temperament. I would need much more persuasion before I could support that approach towards compensation. The whole business of compensation is one which must be tackled at some time in the future and I look forward to participating in that debate.
I accept the principle contained in the  Bill but it has one major defect. Senator Cregan by his look, obviously does not agree with me. The major defect which the Bill has is in subsection (2) of section 2 which has already been referred to by a number of Senators. The granting of a discretion to the health board there may give rise to considerable difficulty in practice. The Minister may be able to say that on the previous occasion no great difficulty was encountered. Times change and this is a new scheme which is starting from scratch. The health boards are under pressure for money in a way that they have never been under pressure for money before, and I think it is only right that they should be under that pressure. They are under pressure and any Minister for Health whether it is the present Minister, a substitute Minister from the same Coalition or in any possible alternative Government, will have to keep the expenditure of the health boards under control.
In those circumstances the Minister is introducing this scheme into a climate where the health boards are under great pressure for money. It is in that context that we should see what problems might be created by the use of the word “may” in subsection (2), the first sentence of which states that a health board may waive the whole or part of a charge. Subparagraph 1 of subsection (2) (a) is quite reasonable because that is a discretion to cover the general cases that may arise from time to time that we cannot anticipate. The second one is more specific. It seeks to establish a situation as to what will happen when there is a degree of contributory negligence. It seems to suggest that the health authority would in such circumstances rebate the amount of their charge to take into account the amount of the contributory negligence. It fails, of course, to impose any obligation on the health authority to do that. That could have disastrous consequences for the person who has been injured.
I can give some practical examples of it. Take the case where a person suffers an injury. I am not talking about a  dramatic injury but a broken leg or something like that which requires a little bit of treatment and from which there is a complete recovery. We will say in those circumstances that a person decides to go to the Circuit Court or the High Court at a lower jurisdiction of that court and is entitled to a compensation in respect of their injuries in general damages, that is for pain and suffering in the past and in the future say, £10,000. We will say their medical expenses for the sake of argument amount to £5,000 giving a total potential award of £15,000.
Let us, first of all, consider what will happen if this goes to court. We will say the court ascribes to the individual concerned 60 per cent of the responsibility for the accident and against the defendant 40 per cent. The result of that is that the person is entitled to reclaim only 40 per cent of £15,000 damages, £10,000 for general damages and £5,000 for medical expenses. In other words the person will get a cheque ultimately for £6,000. This is after a court award. This is not a settlement case. On receipt of that cheque for £6,000 it will fall on the health authority at that stage to determine what portion, if any, of the £5,000 medical expenses they will in fact collect from the individual. The general tenor of what the Minister has said is that they will collect £2,000. That is 40 per cent of the £5,000, leaving the person with a net £4,000, which would be the correct calculation. But there is no obligation on the health authority to make that remission.
The health authority may decide that it is going to charge £3,000, £4,000 or £5,000 and the legislation as drafted will support it in that decision. So you could have a situation where a person in receipt of £6,000 could have to pay £5,000 to the health authority and receive in respect of the injury a sum of only £1,000 in general damages in circumstances like that. You can do many calculations which will arrive at a different set of figures, but the principle is still the same.
When the court awards a sum of money, that award is a separate judicial  decision-making from the decision-making which will take place later when the health board will decide what to charge. Any occasion where two separate people decide on the same issue gives rise to a potential conflict. A court might decide that in certain circumstances a person should get only 40 per cent compensation, but the health board might decide in its wisdom not to accept that assessment of the position and there is no obligation on it to so do. In those circumstances you can see that, while of course it is reasonable to assume that the Minister means that they are to limit their charge to 40 per cent and it is reasonable to assume that the health board will do that in most cases, they will, in so far as I have been able to ascertain, be under no statutory obligation to so do. That places the person on whom the charge falls in a considerable disadvantageous position. I do not know how he can successfully challenge a decision by the health board, taken after his court case has been settled, to charge the full amount or an amount which does not rebate to the full extent of the contributory negligence.
That is the problem that arises where the decision is by the court. Consider the problem that would arise when you come to settle a case. Most cases are settled, in spite of what people say, before anyone gets substantial lawyer's fees. That is something which should be encouraged rather than discouraged. This aspect of the case as applied to the problem of settling cases is going to mean that the tendency will be for more cases to go to trial because of the problems that may be created by settling a case. Consider the case I mentioned earlier: damages of the order of £15,000 — £10,000 general damages and £5,000 medical expenses. A person is offered before the hearing of the accident a sum of £6,000, the full value being £15,000, and there is a question of liability. It would appear that before accepting that figure of £6,000 a decision would have to be got from the health board as to what portion of the £5,000 medical expenses they would  remit in the event of the person accepting the £6,000. In order for the health board to make that decision they would have to be advised by someone as to what the full value of the case is. They would have to be advised that the full value of this case is £15,000, the plaintiff proposes to accept £6,000 and, therefore, he is, in effect accepting 40 per cent of the full value and will remit down to 40 per cent of what the total bill is. But are there people in the health board competent enough to be able to make that assessment on their own? If so, will their assessment agree with the assessment of the professional advisers of the plaintiff? One can see that the number of problems this could give rise to is significant.
Very often in the court itself — particularly in the Circuit Court and certainly where settlements are made — settlements are made on the basis of nobody mathematically calculating what the degree of contributory negligence is. That is something which is not really identified. Somebody says a case is worth £100,000. The insurance company makes an offer of £60,000. You may decide to accept it because you might decide in the circumstances that the person does not want to appear in court. There are a number of additional reasons why sometimes amounts which are less than the full value of the case are accepted, even in circumstances where liability is not an issue or they are accepted where liability is not an issue to the full amount of the discount being offered to them. How will these people be fixed with regard to the payment of their medical expenses? Who is going to advise the health board on that? Will the health board undertake to take, in normal circumstances — I am not talking about the exceptional circumstances — the certificate of a solicitor or a barrister that the settlement represents a discount of so much? You can see the difficulty that that gives rise to with regard to the settlement of cases.
I do not know how the problem of the settlement of cases can be solved, but it would be of considerable assistance if there were two provisions included in this Bill which are not included in it. One  is that a statutory obligation should be placed on the health board to take into account the degrees of contributory negligence where that has been judicially determined. That is the first point. Secondly, I think some appeal mechanism in the other cases should be available for the dissatisfied plaintiff who accepts a settlement in a case and finds himself subsequently in dispute with the health board with regard to the amount of the charge. An appeal mechanism of some kind should be made available to cater for that problem.
It appears that this legislation is required quickly by the Minister. I appreciate that. It would be unrealistic of us on the one hand to expect him to explain why it took two-and-a-half years to produce the legislation and then delay it. A delay of sufficient time to enable the Minister and his advisers to consider the points that have been raised in this House would be appropriate. In those circumstances it is important that this Bill would receive mature consideration.
Of course, it may well be that the Minister has considered all these matters. It may well be that the Minister, recognising the difficulties in this Bill, has pondered for many months on these problems. It may well be that he has considered every point that has been raised here today. I have no doubt, knowing how well Ministers are normally briefed in these matters, that these problems were considered. But the fact that the Minister intellectually satisfied himself as to the correctness of the method which he proposed to solve these problems is only part of the problem. He must then develop that to such an extent that he can persuade us of the error of our ways too, if in fact our ways are in error. That requires time. That requires a balancing of the various factors. I would have imagined that if these problems had been considered by the Minister I would have suggested that it would have been helpful if they had been referred to in the Minister's Second Stage speech. It may well be that the Minister has overwhelming and convincing arguments as to why there  will not be problems by the granting of this discretion to the health boards.
The granting of this discretion, which is a discretion in cases which go to court, and which has been exercised after the exercise of another discretion by a different tribunal and the capacity of two separate decision-makers to make two separate decisions to the detriment of the plaintiff, is something that worries me. I do not think it has been adequately catered for. You have got to trust one tribunal to set the standard. If the court says 40 per cent, 40 per cent it is. If the court says 50 per cent, 50 per cent it is. I know that does not solve the problem of settlements but at least that part of the problem would be solved if we were to grant to the court the decision-making power with regard to the percentage of contributory negligence. I am not sure how we can solve the question of settlements. One of the problems that might arise is that a disagreement on the terms of a settlement could necessitate the hearing of a case which would otherwise settle prior to going to court.
Taking all these factors into account, I think the Bill is obviously welcomed by the vast majority of Senators in the House in so far as its objectives are concerned. Our duty is to satisfy ourselves that the implementation of the objectives, which are shared by the majority of the Members, is helped and not hindered by the detailed terms of the Bill. In that regard the Minister must at this stage have formed the view that there exists among a cross-section of the Members of the House, and people in this area both professional and non-professional, some disquiet with regard to the practicality of the way in which the Minister has tackled the problem.
Mr. Lanigan: I will not be very long on this Bill. It is a Bill that is welcome even though it is overdue. It provides for the payment to the health boards sums of money to which they are entitled. I am not sure what Senator O'Leary was getting at because he seemed to be protecting the client the whole time and not giving the protection to the health board  that this Bill purports to give. I thought that this Bill was a means of giving the health boards payment for services which had been rendered to people who had been involved in accidents. What Senator O'Leary suggested was that if they did not go to court, and make a settlement for less than the amount they claim, the health board should then waive their part of the charges to the percentage that the compensation has been reduced. If there is a charge levied by the health board, and if the client accepts less than he originally claimed, why should the health board waive that proportion of the charges or compensation that had been looked for by the client.
It would appear to me that when people are looking for compensation as a result of an accident they are going to inflate what they would settle for so that they will get a reduced amount of money. What Senator O'Leary seems to be suggesting is that if there is a reduction in the amount sought by the client, there should be a percentage reduction in the charges by the health board. I do not think that should happen. If the health board have a charge, irrespective of the compensation that is granted out of court or that is granted in court, the health board should be legally allowed to receive the costs incurred by the client irrespective of whether the client was partly negligent or fully negligent; otherwise how is the health board going to be able to deal with their finances. We now have the situation in which it is suggested that the cost of the health board will be built into any compensation case being made by a client and when the case is settled the health board will be compensated.
At present it is taking up to three or four years for compensation cases to get through the courts. This means that the health board which has provided a service today will not be paid for that service for three to four years. Will interest be built into the health board charges in accident cases to compensate them for the loss of their moneys over the settlement period and if so is this not going to increase the  amount of compensation being asked for by a particular client? The health boards are finding it extremely difficult to keep going at present. Unless they get some sort of interest compensation as well as the actual amount of cost incurred by them in the beginning, they will be very much out of pocket at the end of the day. I would like to get clarification from the Minister on waiver of the whole or part of the charges. Why should there be a waiver of the costs of the health board under any circumstances? If somebody is getting compensation for an accident they should have to pay their medical expenses to the health boards. As a member of a health board I feel very strongly about this.
A number of points have been raised regarding the incidence of road accidents and their causation. There is no doubt that speed and drink play a major part in the cause of accidents. I sincerely hope that Senator Robb does not find that his remarks to the House do not rebound on him on his way back up to Belfast this evening. It is very dangerous to say that I have never been stopped in a speed trap.
Mr. Lanigan: I ran into three in the one day and all outside my own county which should not be worse but it was. Speed is a major factor in accident causation and results in higher insurance costs and costs for services for people who have been hurt. I am glad to see that the European Commissioner is taking up the matter of speed. As of now it is suggested that a two year MOT test be applied to all motor vehicles. It is overdue that this should take place. We have seen the MOT test on heavy duty vehicles implemented over the last six years. There is absolutely no doubt that the standard of heavy duty motor vehicles on the road has improved. Because of the higher standards and the fact that an MOT certificate has to be granted each year the number of accidents caused by heavy duty vehicles has dropped. As we are in  an economic recession, new cars are not being bought at the same level as they should be bought. This has resulted in too many cars which are not roadworthy being on the roads. It frightens one to see when one is driving the number of cars with only one headlight and equally frightening is the number of cars with only one tail light. If they cannot afford to put a bulb in the tail light or in the front, I would hate to see the condition of their steering, shock absorbers or brakes. There is no doubt that lack of maintenance allied to the fact that people do not have to maintain because they do not need an MOT certificate is a major cause of accidents.
The question of seat belts and the condition of roads was raised again by Senator Robb. In country areas once you get off the main roads and get on to county roads the potholes, overgrown ditches and hedges are causing more and more accidents. I agree with him totally when he suggests that there should be random testing but the random testing should be of vehicles and drivers. If, over a limited period, one had random testing of drivers and vehicles, not alone for alcohol based problems, but for their sight or their physical condition, I think that a number of drivers would be off the road.
If there was a proper system of road checks for cars approximately 50 per cent of the cars which are on the roads would immediately be taken off as unsafe. It worries me that this Bill is going to increase the cost of insurance. There is no doubt that it will, at a time when insurance premiums are at a premium. I am not too sure what the statistics are as to the number of uninsured vehicles on the road at present but there is no doubt that any further increase in insurance costs will disimprove that ratio of insured to uninsured vehicles and as one who was the victim of an accident caused by an uninsured driver I can assure you that it is a very costly situation.
The other point which I would like the Minister to address — something which Senator Fallon and Senator O'Leary also raised — is the situation whereby all compensation cases have been dealt with on  a lump sum basis up to now. The cost of insurance could be dramatically decreased if claims were met over a period rather than in lump sums because once the compensation sum was assessed and put into a fund, the fund would be earning interest and the victim would be paid on a regular basis out of an interest-bearing fund. If a fund like this was set up the cost of insurance should decrease. As has been pointed out, in many cases where very high compensation has been paid the unfortunate victim of the accident, or the recipient of this high compensation, has not lived very long after the accident. Unfortunately the higher the level of compensation, the higher the level of injury and that would indicate that the person would have a shorter lifespan than would normally be expected.
An investigation should take place as to the feasibility of phased payments in compensation rather than lump sum payments. I read of a case where a person broke an ankle in a leisure resort in Ireland and as a result at 15½ years of age got nearly £700,000 in compensation. If that money were invested at current rates of interest — that person would not have the use of this money until he reaches 21 — by the time that person reached 21 he would have over £1 million to invest. With £1 million of investment there is no doubt that the award was inordinate and I do not think that anybody could suggest that the purpose of compensation was ever meant to give an increasing return to somebody who has been in an accident.
This Bill is not going to help in the cost of insurance, it equally will not decrease the length of time in which litigation takes place. One of the major problems at present is that it takes too much time to get cases to court. Sometimes the solicitors do not want to bring their clients to court until they have a full indication as to their recovery. Doctors do not want to make a final assessment as to the long term or short term difficulties arising from an injury and it is often virtually impossible to get all the parties together in a short time and therefore the length of time in which litigation takes place is  too long and something will have to be done to get that cost down.
The only criterion set down as to what the hospitals can charge is the cost per day, on which health boards are going to lose out. Nevertheless, having suggested that there are reservations and we must look into the conditions of our roads, our vehicles and our drivers, this Bill is welcome but only to the degree that it is fully implemented giving full compensation to health boards which is the purpose of the measure. At this stage I am not too worried about what happens to the person who is injured because that has nothing to do with this Bill. I would like to see this waiver section taken out so that, when charges are made by health boards for hospital in-patient and out-patient services, in respect of treatment of injuries received in road accidents when the injury is caused by the negligent use of a mechanically propelled vehicle in a public place, and where the person receives or is entitled to receive damages or compensation in respect of such accidents, the health board will be fully compensated for their outlay in every circumstance.
Minister for Health (Mr. B. Desmond): May I deal with one particular issue first of all. The question has been raised by Senator Lanigan and Senator O'Leary that there might be an increase in motor vehicle insurance premiums arising from this Bill. I see absolutely no reason whatsoever why there should be any such increase because——
Mr. B. Desmond: We can check the record but that was certainly the inference that I took from the comment. I want to deal with that issue. It is important to point out that in December 1983 when the Supreme Court made the judgment it automatically relieved the insurance companies of about £4½ million to £5 million a year of such payments. They were transferred over to the health  system, to the hospitals and indeed straight on to the Department of Health. I estimate that the insurance companies have gained about £25 million to £30 million by virtue of that Supreme Court decision and the important point arising out of that is that in 1984 there was no reduction in premium rates arising from the Supreme Court judgment. There was no reduction in 1985 and there was none this year and from the date of enactment of this legislation the imposition will go back on to the insurance companies. They can, speaking quite bluntly, having had a respite of about £30 million, well and truly take this obligation back without in any way increasing premium rates. Indeed it is notable that in the intervening period many large outstanding claims have been settled — indeed the expedition with which they were settled might raise some eyebrows — and the backlog of cases has been cleared, some cases running to five or six years back. That is my first point regarding the prospect of passing it on to the consumer in that framework. That should not happen. There is absolutely no reason why it should happen.
Regarding the question of lump sum payments raised by a number of Senators and the prospect of their being phased, this is a matter entirely out of my hands because as Senators well know it is entirely a matter for the courts to decide the form and manner of payment. On the comment made by Senator O'Leary that we should substitute “shall” for “may” as to the discretionary element relative to the health boards, it is essential that there be a degree of waiver prospect for a health board. It is quite possible, particularly bearing in mind the legal aspect of those accidents, that the plaintiff may have died. The sum of money may be quite small. The claim may not be worth pursuing to any inordinate degree. In that framework the statutory, mandatory obligation on the health board could prove to be onerous.
Equally, we must be careful on the question of collusion in terms of claims and collusion between an insurance company  and a plaintiff, for example, who may deliberately seek to have reduced the amount of compensation relative to medical claims. A health board in that framework must have a substantial discretion to ensure that they are paid money which they deem is due. Some claims by health boards can be quite enormous. In my own constituency we have the National Medical Rehabilitation Centre. I know of people in hospital for years who are on life support machines and it is important that the health system should have flexibility in ensuring that the hospital budgets have moneys coming into them from the insurance system to enable them to maintain such patients in an effective manner.
Senators raised the question of occupational injury benefits. Basically, bearing in mind that the Department of Social Welfare have the liability there and the Department of Health are equally involved, it is not necessary with that kind of cross payment to have that system introduced. Senator Mullooly in particular raised that aspect.
The essential difference in all the arguments here this evening is that motor insurance is a compulsory statutory requirement on the part of citizens. Therefore, the reason why there is an enabling provision in the Bill is that the health boards must levy in advance of the settlement of claims. The fact that a health board will levy a particular charge on a patient does not necessarily mean that the patient is going to get all that money or that the health board will be recouped all of that money.
The pre-levying of the patient enables the patient to go to court to face his solicitors, to launch his claim, to seek a settlement and that claim will have to be tabulated in detail by a health board. Nowadays one is talking about anything up to £800 a week in terms of ordinary hospital maintenance, leaving aside exceptional cases of surgery and so on required in many accident cases.
It is also important to bear in mind that the situation is covered where there is an out-of-court settlement. The claim will be on the table, even where there is an  out-of-court settlement. A health board will still be enabled to inquire of the person who is being levied as to what happened each claim so that there is no prospect of collusion or a deliberate reduction; in other words, the account will be accrued and presented. If a person enters into an out-of-court settlement which is manifestly inadequate and departs with £X,000 in their pocket and no provision for the health board, the health board are enabled to seek payment the ordinary way. That power is now devolved on the health board itself.
The question of voluntary hospitals was also raised and how they will relate in this matter. There is a clear-cut provision that we will make the arrangements. The health boards have arrangements already with the voluntary hospitals and will issue the accounts on behalf of the voluntary hospitals. Since the health board is the statutory body for a given area providing the health services, the bills will be issued by the health board, having obtained them from the voluntary hospitals and will provide the service in that regard. This is an important point. Particularly in the greater Dublin area where we have a preponderance of voluntary hospitals in operation.
The question of postponing awards until all services have been provided is a matter for the courts and for the legislation eminating from the Department of Justice. As I indicated previously, the question of periodic payments, phased payments, that again is a matter for the courts. While I support many of the sentiments expressed here by Senators in relation to those matters, they are outside the ambit of the Bill.
Senator Durcan was concerned about the impact of retrospection and the prospect of it being employed in the Bill. I sought the advice of the parliamentary draftsman and the Attorney General in relation to this matter. This Bill arises from intense examination at Supreme Court level and the parliamentary draftsman is absolutely clear that there is no question of retrospection in it. I am anxious that the Bill be enacted as quickly as possible. It has now been before the  Dáil since the end of June 1985. There was protracted delay in going through the Dáil because of the Dáil not coming back until October and then we ran into the budget shortly after Christmas.
The other matters relating to the Statute of Limitations and so on are conventional enough within the framework of the Bill. These, by and large, are the main points I make. It will be of considerable benefit to the health boards to be able to get back on stream the collection of these moneys arising out of road traffic accidents. From my experience driving around the country, I can tell Senator Robb that it never ceased to amaze me, even in the comfort of a State car and the relative safety of it, wearing a seat belt, the lack of the regard for life of our drivers.
The preventative aspects raised here by Senator Fallon about the education of drivers is a matter for the Department of Environment. We have a great deal of work to do in this area to bring home to people the absolute need for great care and bearing in mind the volume of cheap alcohol consumed in this country. Drink prices have not increased over the past three or four years, something which is of dubious benefit to the Government in terms of popularity and which might well be regarded as a contributory aspect to legislation of this nature. But that is by the way and I do not want to dwell unduly on it. These are my broad observations at this stage and perhaps during the Committee Stage members may want to deal with some other aspects which I have not as yet had a chance to deal with.
Mr. Ferris: In view of the discussions we had on the Order of Business about the timing of the Committee Stage, agreement has now been reached and amendments have been circulated. If the House agrees, I propose we take the Committee Stage until 5.30 p.m.; we will then suspend the House until 6.30 p.m., take the Private Members' motion from 6.30 p.m. to 8 p.m. and resume the Committee Stage of this Bill at 8 o'clock. That  has been more or less agreed and the Minister is available. If the House agrees with that formula, we will continue until 5.30 p.m. with the Committee Stage and resume after 8 p.m. or 8.10 p.m.?
Mr. Durcan: It is only fair to make a point. The Minister said in his summing up on Second Stage that he was very anxious to get this Bill disposed of. This Bill came before the Dáil in June of 1985 and the Dáil did not come back until October, 1985. The point to be made, in fairness to the Members of this House is that we did come back in September 1985. We have been sitting non stop since that time. We would have been at the Minister's disposal to deal with the Bill any time since then. It is a pity that a measure that is important and technical, is, in effect, being rushed through this House. I do not say that in any way critically of the Minister but it is a point that should be put on the record, that all too frequently Members of this House are being forced to rush through technical legislation. I have regard for the Minister and personally admire him very greatly. He does not like to hold up legislation but it does, nevertheless, have a bearing on the effect of our deliberations.
Mr. O'Leary: I would like to object to taking Committee Stage today. This Bill was apparently with Dáil Éireann from June 1985 until February 1986. The idea of having it rushed through this House in the course of one day's discussion, in my opinion, is ridiculous.
Mr. O'Leary: I want to make it clear the Minister has his constitutional right to intervene in a debate at any time he wants, as long as it is consistent with the order of the House. I am not objecting to the Minister. The Minister is not the person to whom I am addressing my comments in this case. I am addressing my comments, as usual, to the Chair in the hope that they would be heard by the Leader of the House. I feel that the legislative responsibility of this House is being eroded, not by the Government but by the House itself. I do not believe it is the House. The Government cannot do it. The Government can only propose. We dispose. I do not volunteer agreement. I am not going to put it to a vote. When I put something to a vote, it would be something more important.
Mr. Ferris: I am at the mercy of the House. I am just proposing that as the people who had expressed concern at the Order of Business have now been satisfied and agreement has been reached, I am just putting it to the House. It is a matter for the House to decide to go to Committee Stage. The Minister is available. He has explained his position. It is my duty as the Leader of the House to ensure that legislation is dealt with as efficiently, effectively and expeditiously as possible. If that means sitting late tonight or tomorrow or whatever, it is a matter for the House. I respect everybody's views, including Senator O'Leary's.
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