It should be called "the Inequality Tribunal". The Personal Injuries Assessment Board (PIAB) Bill published yesterday by the Tánaiste, Mary Harney, when enacted, will force people seeking compensation for personal injuries into a system which seems designed to disadvantage them. The Personal Injuries Assessment Board needs to be rebalanced, writes Ken Murphy
Indeed, the new system will benefit the very people whose negligence caused the injury.
Instead of the level playing field of the courts of justice - guaranteed by the impartiality of the judiciary - PIAB has been designed so that victims invariably play away from home, without a manager to organise and advise them, under rules devised by the opposition and with a referee whose match fee is being paid by the other team.
Of course, a claim for compensation for personal injuries is not a game. It is a very serious matter for all concerned, particularly for the victim, whose costs of care and financial security for the rest of his or her days may well depend on it.
The victim's interest and the defence interest inevitably conflict. The victim's interest is to ensure he or she receives the full compensation to which they are entitled by law. The defence interest is to ensure that either no compensation, or the minimum of compensation, is in fact paid by the negligent party or, in most cases, by their insurer.
The establishment of PIAB is a triumph for the defence interest - particularly those of the powerful business and insurance lobbies - over those of victims. Brilliantly led by the chief claims manager of CIÉ, Ms Dorothea Dowling, the key to success for the defence interest has been the appearance that they have not been a vested interest in the debate.
However, the only vested interest which did not have a well-organised, well-funded and persuasive voice in this debate was that of victims of accidents, whether in the workplace, on the roads or elsewhere. As a result the victims' interest has been largely ignored.
Of course, the legal profession is a vested interest also. But we in the Law Society acknowledged years ago that the personal injury compensation system in Ireland was too expensive and was overdue for reform. We first came up with proposed reforms four years ago.
Given the central role that IBEC and the Insurance Industry Federation have had in the design of the
PIAB, it is hardly surprising that it will deal with employers' liability cases first. Both IBEC and the IIF will be represented on the board itself and will therefore be in a position to influence PIAB policy.
Apart from this, the Tánaiste has made clear that it is the insurance industry which will pay, on a case-by-case basis, for the operation of
PIAB. This will inevitably create at least the perception, if not the reality, of a bias towards the defence interest.
Most strikingly, however, the respondent insurance company, or the respondent business itself where it carries its own risk, will have two bites at the cherry in relation to liability. For example, an employee loses the fingers of his right hand as a result of a machine's safety guard being faulty. His employer can say that liability is accepted for the purposes of PIAB.
Many months later the employer can decide he does not like what
PIAB has recommended. The victim then has no choice but to initiate proceedings through the courts.
At this stage it may well be impossible for the victim to prove the machine was defective, and he may end up with no compensation whatsoever.
The anti-claimant bias is demonstrated again in that it has been made clear that PIAB will communicate directly with victims and not with their legal representatives, regardless of the victims' wishes.
This is in striking contrast to the views of the Government's own
PIAB implementation group - it contained no lawyers - which was chaired by Mr Frank Cunneen, of the Health and Safety Authority. In a report published last year this group said: "Where legal representation is not provided for, there could be a de-facto inequality between the individual claimant and the respondent (usually an insurance company)".
This will not be a simple process for most people. They will need support, advice and guidance when making a claim for compensation to PIAB. They will have never before commissioned or assessed a medical report. They will have little or no knowledge of medical or of other expert terms and language, nor will they know how to carry out investigations necessary to support a claim.
Calculations of loss incurred to date and future loss can be very complex. According to research undertaken by the National Adult Literacy Agency, in practical terms half a million adults have difficulties reading instructions on an aspirin packet, doing homework with their children and filling in forms.
By contrast, the insurance industry respondent or similar commercial entity, with enormous financial resources, in-house and external expertise and experience of dealing with thousands of claims annually, will be at a clear advantage over an unrepresented victim.
If the system does not pay for legal representation, then one of two things will happen. Either victims will proceed without professional assistance and will not formulate their claims to their fullest potential, in which case they will receive less compensation than they are entitled to, or else they will retain professional assistance, formulate their cases properly but have to pay for the professional assistance out of the award.
Clearly, therefore, it is not correct for the Tánaiste to assert that compensation levels will be unchanged. In fact, the costs to the defence side will be reduced but will be borne by the victims.
It need not be like this. PIAB could be rebalanced to remove at least some of this institutionalised inequality.
At a meeting with Law Society representatives last week, both the Tánaiste and Ms Dowling informed us that "the debate on this is over". Are the Dáil and Seanad merely rubber stamps for the business and insurance lobbies? In the interests of victims, we hope not.
Ken Murphy is director general of the Law Society of Ireland