This website is about the law. That’s why it is also about politics. They go together.
The Irish political class has wrecked Ireland economically, but its faults do not finish there. Political careers need money and other supports. A politician can trade public policy for that money and/or support. In other words, a policy can be promoted by people in circumstances where they appear to be independent; they do not appear to have any personal interest in the outcome, but the full circumstances, if known, show otherwise.
Take the issue of personal injury litigation. It is a settled political question in Ireland that victims of personal injury are entitled to compensation from persons who have caused the injury.
To say it is “settled” is not to say that it is not contested. It is contested, but the contest is conducted, generally, by denying victimhood to injured persons in the absence of a judgment in their favour. In short, their innocence is denied, at least implicitly.
That innocence and their right to compensation is made into a political football. It can be traded, and has been traded.
For this to happen in Ireland is, at first sight, baffling.
After all, the right to claim compensation for personal injury, from wrongdoers causing that injury, is secured in the Irish Constitution. Surely that is unassailable? Maybe not.
The Irish political class has wrecked Ireland. But, it is that class that is to the forefront in saying that Ireland is wrecked. Consequently, it can be plausibly said that we cannot afford “luxuries” any more. Luxuries like a constitution, say. Or luxuries like an adversarial court system to settle ALL disputes. Why not establish a system of mediation for personal injury claimants to seek compensation, or compel them to submit to binding arbitration of their claims?
Why not reduce the period of time under the Statute of Limitations for those victims to bring enforceable claims? (This has happened).
These are political questions. In Ireland, they appear in public as ideas, but never feature in any public debate. Political debate in Ireland is deficient. Arguably, that is the fault of the electorate. Irish citizens do not demonstrate a ready interest in, or capacity for, discussion of these topics.
On the other hand, arguably, the electorate has been infantilised by the Irish political class. This writer thinks this is the more likely explanation, of the two just recited.
This writer should declare his interest at this point; he earns his living litigating for, amongst others, victims of personal injury. He thinks, therefore, that any reasonable citizen would agree with his views on these topics. He thinks that victims of personal injury should be entitled to recover compensation from wrongdoers who have caused that injury. He thinks the compensation should be full, and adequate. He thinks that the victim should not be cheated of that right by an invidiously short time to make a valid claim, in default of which the right to claim is lost.
Until Ireland becomes wholly, or generally, a communitarian society the writer will hold his views.
What, in practice, does this mean?
It means, for instance, that we must acknowledge that Irish society has embraced the motor car as a major means of transport. It is inevitable that people will be injured in this system. Not just drivers will be injured, but small children, wholly innocent of any involvement in the system; children incapable of making decisions or choices as to the ordering of society or its transport systems.
In a communitarian society those children, (indeed, all victims, children AND adults), would be compensated for their injuries without quibble. In Ireland, that response is absent; so, we are not a communitarian society. However, we seem not to be able to live with the consequences of this fact.
So, we have decreed that every road vehicle and driver must have third party insurance in place to pay compensation to victims of the negligence etc. of the driver and/or owner of the vehicle. We have gone further; even if the vehicle is not insured (a criminal offence) we have arranged a system where the insurance companies, taking advantage of the business opportunities created by the State, must pay the victims of road traffic accidents, even in the absence of insurance. Significantly, compensation is payable only in the circumstances of the fault of someone other than the injured person.
In a communitarian society ALL victims of personal injury would be compensated for their injuries. This does not happen. Many people are injured solely through their own negligence. Many others are injured by uninsured, penurious wrongdoers, in circumstances where the State did not insist on the wrongdoers being insured. Those victims get no compensation.
In truth, where the State creates or facilitates a privately owned insurance business system and relies on that form of social or business scheme to distribute, in society, the losses that are personal injuries, the State is individualistic in its response and is not communitarian. Here are some more examples:
1. Unlike the UK, we do not make it compulsory that every employer be insured against liability for injuries to employees. That’s an individualistic response.
2. Unlike the UK, we do not insist that the logic of the privately owned insurance business system be followed to its conclusions, so that the injured employees (or others) are personally in a position to enforce the contract of insurance that was taken out to pay them compensation. That’s an individualistic response.
3. Unlike the UK, we do not have any effective means whereby a group of persons injured by one wrongdoer may, as a group, litigate the circumstances of their injuries together in one set of proceedings. (If this were allowed they could collectively pay the costs of that single action and reduce the multiplicity of legal costs their individual claims would generate). That’s an individualistic response.
4. Unlike the UK (and the US) we only collect statistics on personal injuries desultorily and piecemeal. That’s an individualistic response.
5. The Irish political class is not committed to the necessity for real independent regulation of social or business activities. That’s an individualistic response.
6. Outside the judicial system, Irish society is not committed to fairness as a principle underpinning society. That’s an individualistic response.
The tort system in the courts is intended for use as a balancing element of an individualistic society. An individualistic society would not long remain a democracy without the tort system to redistribute personal injury losses.
The citizens would reject that “compensation-free” society if they could. That’s why this website cannot ignore Irish politics.
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