THE NUMBER OF personal injury claims brought before the courts, and the compensation awarded to claimants in damages, have become a major talking point in Ireland in recent years as premiums for business and car insurance are on the rise.
In 2018, the Courts Service recorded 22,049 personal injuries cases across the courts system in Ireland.
While that might be down by around 350 cases compared to 2017, it shows an increase of 4,286 cases compared to the same data for 2014, when there were 17,763 cases filed.
There were a further 18,992 cases filed in 2015, 21,898 in 2016, and 22,417 in 2017.
Those involved in the insurance industry have called for caps on the compensation awarded in those cases which are successful – the highest amount awarded in damages last year was €15 million.
The Personal Injuries Assessment Board (PIAB) – an independent state body which assesses compensation claims – also received over 33,000 claims in 2018.
This is up on by around 1,500 on the same figure four years previous in 2014 when there were 31,576 claims made to the board.
The debate around insurance claims and the knock-on effect these claims, and the respective compensation payouts, have on insurance premiums has lead to concerns that a ‘compensation culture’ has developed in Ireland.
The German-based organisers of the popular annual Oktoberfest event in Dublin announced it would not be returning this year saying they were “not used to the claim culture that has developed in Ireland”.
The Ballina Salmon festival was another fatality of rising insurance costs when it announced it would not be proceeding this year.
Calls for reform within the insurance industry is not a new phenomenon, and has repeatedly put the issue at the top of the political agenda over the past two decades.
One of the measures floated to address the amount of claims being made is the creation of a personal injuries register, a database which could be used by interested parties to identify individuals making several claims, and act as a tool to investigate potential insurance fraud.
Legislation was enacted 15 years ago underlining the need for such a register to be established and separately in 2017, the Cost of Insurance Working Group recommended that the register goes ahead.
The parties who would be responsible for establishing and maintaining the register – the Courts Service and the Department of Justice – however, have said it will not go ahead, claiming it would be “wasteful of resources” and “prohibitive at a technical level”.
They also claim that storing people’s data on a public register would breach GDPR regulations.
So, 15 years after a need for a personal injuries register was enshrined in law, and with a working group supporting it, why do we not have one?
Civil Liabilities and Courts Act 2004
The Civil Liabilities and Courts Act 2004 legislated for changes in how personal injury cases were dealt with in the courts.
These changes included restricting the length of time a person had to take a case, as well as stricter penalties for those who misled, or failed to provide all relevant materials, to the courts.
One measure provided for in the act was the creation of a personal injuries register.
Section 30 of the act states: “The Courts Service shall, on the commencement of this section, establish and maintain a register of personal injuries actions.”
It would contain a record of all personal injury cases, with the details of the name and addresses of the solicitors for both sides, and the name, address and occupation of each person who was a party in the case.
That register would then be made available to any persons who could show a “sufficient interest” and need for accessing it.
Some 15 years later that register has not been established despite repeated calls for a clampdown on personal injury claims.
Working group
In 2016, the Cost of Insurance Working Group was tasked with examining long-term measures to address the rising cost of insurance for citizens and businesses in Ireland.
It was made up of individuals from across government departments, who met with organisations including Insurance Ireland, the AA, Consumers Association of Ireland and the Law Society of Ireland.
A report from the group on the cost of motor insurance in 2017 made 33 recommendations with 71 associated actions, including the establishment of a claims-by-claims register.
“The long-term aim is to tackle the issue of insurance fraud proactively, by making it more difficult to commit the crime in the first place,” it said.
A report from the group likened the cost of running the personal injuries register to the costs associated with running the Central Credit Register – which come in at around €47 million over a 10-year-period.
Three years on from that working group being established there is still no movement on a personal injuries register.
At present the insurance industry’s representative body, Insurance Ireland, runs its own database, which the companies in the market have access to.
This in itself has given way to concerns of a cartel operating among insurers in Ireland which could restrict competition and which would breach EU rules.
In May of this year, the European Commission announced it was opening a formal antitrust investigation into Insurance Ireland, with Fianna Fáil’s Finance Spokesperson Michael McGrath, and the Alliance for Insurance Reform, questioning whether this database should have been managed by the State and not the industry.
The register vs. the Department
An interim report seen by TheJournal.ie from the Department of Justice this month confirmed it would not be signing off on a public register, citing recommendations from the Courts Service.
Those recommendations centred upon the availability of resources and data protection concerns.
The report claimed: “…a number of issues were identified which, it is considered, would either make it inefficient from a Courts Service resource perspective to develop the register at this time.”
The Department claimed “there are significant concerns around the wording… in relation to the protection of a person’s data protection rights”.
In what is arguably the biggest setback to the establishment of such a register, both the Department and the Courts Service have de-prioritised the matter.
A spokesperson for the Courts Service told TheJournal.ie that it has not been given the resources to develop the register.
It said it was currently working on another project, the civil cases management system (CCMS), and only when that was completed – a deadline for which has not been set – could the personal injuries register be considered.
The CCMS project is intended to bring together information relating to cases from 75 databases in Ireland.
There is no information as to when this would be completed, or what exact stage it is at, but the spokesperson indicated that it would be a number of years before it would be brought on stream.
“For a full decade it was not possible to invest in the full development of this system – as the country did not have the resources to do so,” they said.
“Until the civil cases management system is fully developed, we cannot bring together the various standalone systems in offices across the country, from all court jurisdictions.”
The Department of Justice agreed that the register should not go ahead but said its decisions was based on the Court’s Service advice.
Speaking of its decision, a spokesperson told TheJournal.ie: “The conclusion drawn was very much based on the advice of the Courts Service.
“The report concluded that the activation of a register is not feasible for the Courts Service at the present time and that collation of the data required could be better achieved by appropriate use of the proposed CCMS when it comes on stream.”
But wouldn’t it breach data protection laws?
The answer to this question depends on who you ask.
The Courts Service, and subsequently the Department, fears making a register accessible to public and private bodies would infringe upon GDPR and data protection legislation.
As mentioned earlier, the register would be available to those with “sufficient interest” but the Courts Service said the onus would be on them to decide who or what constituted a party with sufficient interest.
It also claims the “compatibility” of the 2004 Act with GDPR laws in effect today would need to be examined before a register could be set up.
Cork-based solicitor Micheál O’Dowd said that GDPR has tightened how an individual’s data is processed and used but that there are “broad exemptions” to safeguard democracy which could be invoked in order to avoid breaching data protection laws.
O’Dowd indicated that, relative to the 2004 Act, “[the Courts Service] would be able to avail of the exemption in Article 6(c) or (e) without any obvious need for new legislation”.
In layman terms, O’Dowd explained that the register could be established without infringing on GDPR as long as it is “in compliance with a legal obligation” or as a tool “for the performance of a task carried out in the public interest”.
“I think if there was a political will this register could be established under the current legal framework, and the GDPR has not changed the ground rules unduly,” O’Dowd added.
A spokesperson for the Office of the Data Protection Commissioner (DPC) was asked if the register would affect GDPR legislation.
They said a review would need to be carried out of the 2004 legislation to take account of changes in data protection regulations and its consequences.
They said: “In order to rely on Article 6(1) (c) or (e) as a lawful basis for collection and processing of personal data, an organisation must be able to justify why such processing is required.
“If such a database was created, the operating entity should have a legislative basis, with built-in safeguards and suitable and specific measures to justify the processing of personal data.”
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