Personal Injury Claims

My question relates to periodic payment orders, PPOs, specifically a long-standing commitment by the Minister for justice to implement legislation to effectively make periodic payment orders a reality for families across the country. At the moment, they are not. Every year, the State Claims Agency has to settle hundreds of medical negligence cases. A small number of those cases involve families and individuals who have catastrophic injuries, either at birth or as a consequence of a procedure that has gone very badly wrong. Essentially, there are two options when a plaintiff is seeking compensation for those injuries. It is either in the form of a lump sum or of a periodic payment order. I think most sensible people would recognise that, in the context of a lump sum to provide for somebody's care until the end of their days, particularly for people who need 24-hour care, it is very hard to estimate how long the person is going to live and the nature of the care they will need in five, ten or 20 years. Periodic payments orders, then, are the answer, but we need to get the formula right. Consideration of the issue goes back to 2010, which is almost two decades ago. A High Court working group made a recommendation in that year for the establishment of periodic payment orders instead of lump sums. In 2017, that legislation was passed under the civil liability Act. It was groundbreaking because it linked the payment, which was to be updated every number of years, to the harmonised index of consumer prices, HICP. In 2019, though, there was a High Court case. The court effectively said the periodic payment orders were a dead letter because of the construction of how they were calculated. Effectively, families and individuals were running out of money because the actual cost of providing for the individual far exceeded the rate of inflation. A review was promised. There was an interdepartmental working group. It has reported and stipulated that primary legislation is needed to facilitate the Minister for justice bringing forward a change in secondary legislation. That has happened. The critical part of it, though, is that the Minister for justice needs to bring forward secondary legislation so that periodic payment orders are based not only on the HICP but also on the annual rate of change in health workers' earnings. That is the critical aspect. I do not understand why the Government will not act on this. There are families out there like that of Margaret Best. Her son, Kenneth, was supposed to live only until he was 45. He is now 57. She ran out of money many years ago. There is also the family of Luke Miggins, who are heading into their sixth interim settlement. It is completely unacceptable that they had to go back to court every few years and arrange for a large number of assessments to take place, at a cost to the State, to get an updated payment for the care of their son. There has to be a better way. We know what that better way is, and it is in the gift of the Minister for justice. When I asked the question last November, we were told that the secondary legislation was imminent, but we are nine months on and we are yet to see it. When will we see the necessary, vital legislative change to allow families to get on with their lives and caring for their loved ones, adult or child, with catastrophic injuries?

I thank Deputy Sherlock very much for raising this very important issue. PPOs, as the Deputy set out very clearly, are an alternative to lump sum awards as a method of paying compensation to catastrophically injured people. Instead of receiving compensation in one tranche, as the Deputy laid out, a payment is made annually on an agreed date. The annual payment amount is calculated to meet the cost of permanent and long-term care and treatment. An indexation rate is applied to the annual payment amount to ensure the amount keeps pace with inflation. Part 3 of the Courts and Civil Law (Miscellaneous Provisions) Act 2023 contains amendments to the Civil Liability Act 1961, which provide that indexation of periodic payment orders will no longer be fixed solely on the consumer price index. Instead, the indexation rate for periodic payment orders will be set by regulations made by the Minister for justice with the consent of the Minister for Finance. The amendments arise from a High Court decision on the existing indexation rate, which found that it was not an appropriate index for use with periodic payment orders, PPOs. The amendments proposed will allow greater flexibility in the setting of the indexation rate and set out the general rule that a periodic payment order will be adjusted on an annual basis by reference to an index specified under the section. In 2024, the then Minister for justice published two reports relating to compensation payments in personal injury cases. A working group on the indexation rate for periodic payment orders was established to advise on an appropriate index following a High Court determination that the index used in primary legislation was unworkable. Its report recommended that the PPO indexation rate should be based on a combination of the harmonised index of consumer prices and the annual rate of change in nominal hourly health earnings. The amount of a yearly periodic payment payable should be based on a periodic payment order indexation rate comprising 80% of average annual rate of change in nominal hourly health earnings added to 20% of the harmonised index of consumer prices. Where a court makes a lump sum award in a personal injury case, it uses the discount rate to determine the size of the award necessary to compensate a person for future losses. The rate reflects what an award recipient would likely receive in return if the award amount were invested. Separately, an independent expert working group was set up to advise on an appropriate discount rate for use in catastrophic injury cases. Its report recommended that the discount rate should remain unchanged from the rate set by the High Court in 2014 and subsequently confirmed by the Court of Appeal and plaintiffs in catastrophic injury cases should continue to be considered as having a risk-averse profile. It also recommended that an expert group should meet at a maximum of every three years to reassess the discount rate and that a trigger mechanism should be introduced to enable a review of the discount rate if there is a marked change in economic circumstances or if the rate is successfully challenged in court.

I am conscious the Minister of State relaying the reply on behalf of the Minister for justice. Any of us not living in a situation where a family member has a catastrophic injury have no real insight but from the families I have met and families I am aware of, the stress and burden they have to endure day in, day out, and the worry of not being able to provide that care are enormous. The toll it takes on families is enormous and then they are put through this arduous process every few years for an interim care order. To be frank, the reply from the Department of justice does not answer my question. My question is, when will the secondary legislation be passed? I take a particular interest in the very large resources spent by our State is spent. It is not just about what is spent but how it is spent. The State Claims Agency spent over €109 million last year on legal fees for itself and plaintiffs. It spent about €115 million the year before. That is an enormous amount of money. That the State Claims Agency has to agree interim pay orders every few years with these families and spend the State's money doing so is outrageous. The recommendations of these reports have been with the Department of justice for two years. The Minister said last November they were imminent. What is the delay? Why are officials and the Minister not thinking about the impact on these families? Surely it is not rocket science in terms of what needs to be legislated for. It is very clear - it is the HICP and health workers' earnings. We need to see action.

While the Minister for justice cannot be here in person this evening, I will pass on the key points the Deputy has made and her strong advocacy on this important issue. As I mentioned, a working group on the indexation rate for periodic payment orders was established to advise on an appropriate index following a High Court determination that the index used in primary legislation was unworkable. As part of a two-stage process, the primary legislation governing PPOs has been amended to allow for the Minister for Justice, Home Affairs and Migration to set the rate by way of secondary legislation, as the Deputy outlined. The Periodic Payment Orders Indexation Rate - Report of the Inter Departmental Working Group was submitted to the Minister on 26 April 2024. The Minister approved the recommendations shortly afterwards on 21 May 2024. Drafting instructions were issued to the Office of the Parliamentary Counsel to the Government on 13 August 2024. Drafting of the regulations is continuing and Department officials are working closely with officials in the Office of the Parliamentary Counsel to the Government and the State Claims Agency to finalise the regulations. Once this work is completed, the regulations require the consent of the Minister for Finance before they can become operational. That outlines the timeline of where it is at. I take the Deputy's point on the urgency and importance of bringing that to a conclusion to bring a more streamlined and optimal approach in how this important mechanism works. I will feed back Deputy Sherlock's clear work and advocacy on this issue to the Minister, as well as how she addressed it in the Dáil this evening.