The Subtle and Insidious Slide

The French are great for a bon mot One of this column’s favourites is plus ca change, plus c’est la meme chose Our first column under this name was written some 21 years ago, when insurance premiums were too high and the cost of claims were getting the blame.

Sound familiar? It was headlined “do you feel dirty” and lamented that lawyers as usual were taking the brunt of insurance greed.

It will ever be thus and no amount of complaining will change that. But there is a difference this time around. Whereas, in 2002, just before the introduction of PIAB, the injury victim was considered an innocent party, the focus has now shifted to victimblaming. And denying access to justice at every juncture.

We have already written about how the swingeing reductions in awards will make finding a solicitor to take on lower value claims more difficult and how the relentless insurance propaganda campaign has shamed genuine injury victims against claiming for fear of being tarred with the fraud brush.

And the hits just keep on coming. The latest announcement by the PIAB that a medical report will be required before a claim can be registered and the statute can be stopped as well as the stipulation that a signature will be needed on the claim form is at best a retrograde step and worst an assault on the injured party’s constitutional rights.

The PIAB blame the underlying legislation for this requirement and no doubt this is the advice they have got. Whether they or the legislature are responsible for this latest attack on injury victims, there can be little doubt that there will be a queue outside the High Court to take the first challenge.

The courts have always taken a dim view of any provision that limits access to the courts. The requirement to obtain a medical report, in particular, creates an impediment to this and it is hard to think of any other analogous stipulation. Even in medical negligence claims, as a protective summons can be issued to stop the statute.

As an application to the PIAB is an absolute pre-requisite to the issue of proceedings, it is clear that this path must be as free from unnecessary obstacles as possible.

Those who practise in the area will attest to the delays, costs and difficulties in obtaining medical reports at the best of times. However, if the statute problem is hanging over a claimant, this becomes a sword of Damocles.

It is massively simplistic to say, as PIAB do, that doctors must provide a report or at least notes under Data Protection legislation. This assumes that they obey requests, which are frequently ignored no matter what efforts are made by a solicitor.

Of course, the injury victim may not have a solicitor thus creating a further hurdle and perhaps vacuum of knowledge about the absolute requirements of the Statute of Limitations.

The reason expressed for this change in policy is that it is an anti-fraud measure. This is now the answer for all restrictions on citizens’ constitutional rights to compensation for injury. The cruel irony of this provision being that the most reluctant claimants will be most seriously affected. It is they who decide to make a claim two months before the two years elapses because they have no choice such is the pain they are living with.

None of this should come as a surprise, just part of the ongoing disappointment.

It is part of a slow but firm move towards the right in Ireland. It’s not as dramatic or far-reaching as the nations either side of us but it is subtle and insidious.

The rights of the consumer must take their place behind big business. The insurance industry continues to ride roughshod over common sense and justice.

The last bastion of defence is our judiciary who will not be cowed. Que cela dure longtemps.

Stuart Gilhooly SC