PIAB held a conference in Croke Park today, 10th April, on ‘The Evolving Personal Injuries Landscape in Ireland’. Without doubt, the most interesting contribution came from Mr Justice Nicholas Kearns, Chairperson of the Personal Injuries Commission. In a landmark, and refreshingly blunt address, Justice Kearns started by noting that ‘a moment has come’ where we have to deal with the issue of soft tissue injuries, the compensation for which he described as ‘staggering.’
He noted the closure of businesses recently due to the cost of unaffordable insurance, and the imminent closure of others such as Linda Murray’s Huckleberry’s Den in Navan. He said that business closure was now ‘the order of the day for businesses besieged by claims.’He made some very pointed remarks about those seeking to impede progress by suggesting there should be no ‘knee-jerk reactions’ to the problem. He suggested that they ‘join the Flat Earth Society.’ He also suggested that leaving the quantum calculation to the Law Reform Commission was wrong, as it would take too long.
He noted the tabling of the Civil Liability (Capping of General Damages) Bill 2019 by Senator Anthony Lawlor, which is currently at third stage in the Seanad. While he did not opine on its constitutionality one way or another, he did note that a bill which capped but did not fix damages, and which did not deny access to the courts, could be argued as being ‘fair, proportionate, and in the public interest.’ He said that the fact that Senator Lawlor’s bill did not exclude the judiciary from the damages setting process was significant. He noted that the Civil Liability Act 1961 had stood for more than 50 years ‘without the sky falling in’ and without ‘constitutional condemnation.’
Justice Kearns said that while the Court of Appeal had recalibrated awards at the upper end, its downward reach effectively stopped at the High Court, but it was in the District and Circuit Court where the issue arose in quantum for soft tissue injuries. The Court of Appeal was therefore not the solution to the problem.
Justice Kearns said he was ‘frankly baffled’ that a Garda unit tackling fraudulent claims had not yet been established. He said that the issue appeared to be a refusal to countenance insurance industry funding of such a unit, even though such funding is used in the UK. (Peter Boland of the Alliance for Insurance Reform later pointed out that the €16.5m surplus generated by PIAB could be used to fund a Garda Insurance Fraud Unit, if insurance industry money was unacceptable).
Kearns said the lack of investigation of fraud, and the large awards available, ensured the ‘maximum growth conditions’ for fraudulent claims.
In a very pointed wrap-up, he said the public were sick of the problem. The time to address it is now. He said there was no excuse for any further delay in tackling the issue, and laid the primary duty for making progress at the door of Ministers Charlie Flanagan, Michael D’Arcy, and Heather Humphreys. ISME, and the Alliance for Insurance Reform thanked him for his work on the PIC. ISME CEO Neil McDonnell said that his work had established the extent of the problem, and meant we needed no further studies, commissions, or investigations into the problem. All we require now is (political) action.
Notes: ISME should be referred to as the Irish SME Association.
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