Judge defends litigation culture and criticises personal injuries report

Marie Baker takes issue with findings of High Court’s ex-president on compensation

The report by the former High Court president Nicholas Kearns has been  criticised by a leading member of the judiciary.  Photograph: Alan Betson

The report by the former High Court president Nicholas Kearns has been criticised by a leading member of the judiciary. Photograph: Alan Betson

 

A report by former High Court president Nicholas Kearns that criticised the high level of personal injuries compensation has itself been criticised by a leading member of the judiciary.

Referring to this week’s report, which found Irish court payouts for soft tissue damage are over four times higher than those in the UK, Ms Justice Marie Baker said some of the discourse around at the moment seemed to be suggesting “a certain litigation fatigue”.

The Kearns report found that compensation for personal injury claims in this country was among “the most generous in Europe”.

But Ms Justice Baker told a conference on medical negligence the report would have given some people pause for thought “because it is negative – it speaks about the litigation culture as if it was a bad thing”.

She said the report referred to the fact that “perhaps damages are too high, or seem to be too high and the fact that there is a certain degree of a lack of just results”.

But the law of negligence and the rule that you are compensated was “as old as time”, she stressed.

“If you live in society and a member of society injures you, it is part of being a citizen that you are restored, in so far as you can be, to the position you were in.”

Dedicated list

Ms Justice Baker, who was appointed to the Court of Appeal earlier this summer, said it was “very undesirable” that there was no dedicated medical negligence list in the High Court.

“You have a judge who hears a personal injury case arising from an injury at work one day and starts the next day a long medical negligence case, and he or she knows nothing about medicine,” she said.

Solicitor Joice Carthy told the conference in Sligo that proposed new legislation providing for open disclosure of serious patient safety incidents would lead to more, rather than less, litigation, because of a “nonsensical” restriction on how the information is used.

The proposed Patient Safety Bill, approved by Government in the wake of the cervical smear scandal, prohibits patients from using information disclosed to them in future legal cases, she pointed out.

Open disclosure

While progress had been made, in that the Bill makes open disclosure mandatory rather than voluntary, “it seems to me ridiculous from a common sense perspective that patients are entitled to be told what happened to them, but are not allowed to use this information about their own health care in any civil legal or regulatory proceedings”.

She said patients who suffered catastrophic injuries and who were told they suffered an adverse outcome due to medical error would not be able to use this information in a civil case and would be required to get the same information through another route so it was admissible in court.

The conference, organised by Callan Tansey solicitors, also heard calls for a dedicated High Court section to deal with complex medical cases.

Roger Murray, managing partner with Callan Tansey, criticised what he said were repeated references to Ireland having “a compo culture”.

“Reading the Scally report you could conclude that quite apart from having a compo culture, when it comes medical injury we have a culture of silence, we have a culture of indifference, we have a culture of coldness,” he said.

The solicitor, who specialises in medical negligence cases, also called for the establishment of a dedicated High Court list for such cases, pointing out that in 2004 a specialist Commercial Court had been established.