A year is simply not long enough to estimate long-term damage in many accident cases, writes Dr Teresa Burke who argues the new Civil Liability Bill is seriously unjust
The new Civil Liability and Courts Bill (2004) will make it an offence, punishable by law, for an injured party or any professional involved in the case knowingly to make a false claim in respect of personal injury. That is as it should be. Professionals covered by a code of professional ethics already face sanction by their professional bodies and will now face the rigours of the law. That is also as it should be.
But, while on the surface the bill appears capable of reducing insurance costs, and will undoubtedly reduce insurance fraud, aspects of it appear misguided, unjust, and perhaps are even unconstitutional.
The provision within the bill to reduce the time limit for bringing personal injuries actions from three years to one year is unreasonable, unworkable, will victimise victims, and may well increase rather than decrease claim numbers and ultimately insurance costs.
Unless the provision to set aside the prescribed period of time for the service of a document, or the doing of any other thing in relation to a personal injuries action, is invoked, in what might prove to be the majority of personal injury cases, the interests of justice will not be served.
Unless the timeframe within which claimants are required to provide particulars of injury and full particulars of all items of special damage is extended, the bill will almost invariably give rise to larger claims, and places legal and healthcare professionals at increased risk of being sued. It is unreasonable to expect an injured party to initiate a claim and to provide a personal injuries summons when it is neither possible nor reasonable to expect them, or their legal and medical representatives, to know what the full extent of the injuries and losses are.
There are many circumstances where one year is simply too short a timeframe to determine outcome following injury, even when it is obvious that injuries and losses have occurred. For example, even healthcare professionals working within the area of head injury cannot determine the long-term outcome within the first year.
Because physical injuries take priority in the acute post-accident period, cognitive and behavioural deficits resulting directly from a brain injury are often not immediately apparent in those who suffer head injury. Cognitive, behavioural and emotional sequelae frequently come to light only when the victim attempts to return to employment, to their course of study, or to the full range of daily activities. This often occurs quite some time after injury.
For others, there may be gradual resolution of problems over time. It is a well-recognised principle in neurology and neuropsychology that 18 months to two years is a more reasonable period in which to determine long-term outcome.
Brain-injured children are even more vulnerable. It is a well-recognised principle in paediatric neuropsychology that children often "grow into their problems". Neuropsychological deficits that are not apparent in a child in the immediate aftermath of a head injury may only emerge as the child progresses through the school system. As the educational demands increase, the effects of even subtle cognitive problems become increasingly apparent. The child now falls behind.
Because of their brain injury, many fail to develop the hallmarks of frontal-lobe function in line with their peers. Problems such as difficulties with executive function, social skill and problem-solving skills, skills that are crucial in adulthood, will then come to light only as the child matures. In a country with such a scarcity of paediatric neuropsychologists and educational psychologists, how are these problems to be detected or anticipated?
The legal profession leaves itself open to allegations of professional incompetence and potential legal action if it does not adequately represent its clients. Failure to secure adequate compensation on behalf of a client in respect of current injuries and future needs presents a potentially major problem for the legal profession. Might it not now become imperative to initiate a claim and to claim on the basis of "worst possible scenario" to protect against failure to anticipate future problems or failure of current problems to resolve?
This of course will require the legal profession to be fully conversant with a wide range of complex medical conditions and to be fully apprised of potential additional adverse sequelae.
To do otherwise runs the risk of further litigation, this time against the legal profession, for failure to represent the client adequately.
Are we to require our solicitors and barristers to become expert not just in the legal domain, but also in medicine, psychology, occupational therapy and actuarial science? What provision will be made to deal with the invariable escalation of professional indemnity insurance for the legal profession as they increasingly face litigation by clients for whom they failed to secure adequate settlements? Anyone sitting on the Personal Injury Assessment Board will also face potential litigation for failure to recognise and anticipate the full range of problems resulting from an accident at work. This is particularly true where they knowingly or unwittingly underprice or undervalue a claim from an injured party who has not had the benefit of legal representation. Unless we can protect injured adults and unless we protect injured children, we all stand accused. Good law should protect the innocent. Good law must not punish the vulnerable.
Under the bill, the Supreme Court may, upon appeal to it in any personal injuries action, invite such persons as it considers appropriate to make submissions to the court in relation to any matter concerning either liability or damages that it considers to be of exceptional public importance, or if the action belongs to a class of causes of action in which the same or similar matters arise.
Unless we propose to eliminate all road traffic accidents, all other causes of head injury, all future sexual abuse etc, the savings in insurance costs will be spent on Supreme Court submissions and inquiries. Bad law is not the answer to rising insurance costs.
Dr Teresa Burke is a senior lecturer in the Department of Psychology, University College, Dublin, and a clinical neuropsychologist in private practice.