Monday 26 August 2019

Eilis O'Hanlon: 'Politicians should stop being so holier than thou about 'compo''

When it comes to our compensation culture, it turns out that Fine Gael is no better than anyone else, writes Eilis O'Hanlon

'FF leader Micheal Martin (pictured), no doubt with relish, said Bailey’s claim “flies in the face of” the Government’s crusade against rising insurance premiums. In reply, minister Regina Doherty jumped to her FG colleague’s defence, saying: “Every individual has a right to take a case.”'
'FF leader Micheal Martin (pictured), no doubt with relish, said Bailey’s claim “flies in the face of” the Government’s crusade against rising insurance premiums. In reply, minister Regina Doherty jumped to her FG colleague’s defence, saying: “Every individual has a right to take a case.”'

Eilis O'Hanlon

Even if it's true that Fine Gael TD Maria Bailey is poised to drop her personal injuries claim against a Dublin hotel after falling off an 'unsupervised' swing back in 2015, there are still some things that can be taken from the whole sorry saga.

The first is a deep existential dismay at the onward cultural march of the tribe of trendy, middle-class hipsters who'd find such a tiresome gimmick as a swing in a hotel corridor hilarious.

The second is a certain satisfaction that this story may finally have put to rest Fine Gael's claim to be the "down with that sort of thing" party.

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FG may never have enjoyed power as frequently as Fianna Fail, but the one thing its supporters could always comfort themselves with was the knowledge that they were a cut above the hoi polloi.

It's not always possible to slot Irish political parties into a neat class system, but, as bastions of respectability, Fine Gaelers certainly wouldn't want to be seen as the sort of folks who'd look for damages after taking one of life's small everyday knocks.

FF leader Micheal Martin, no doubt with relish, said Bailey's claim "flies in the face of" the Government's crusade against rising insurance premiums. In reply, minister Regina Doherty jumped to her FG colleague's defence, saying: "Every individual has a right to take a case."

Was that ever in question? But just because someone can do something doesn't mean that they should - especially not if court papers were to subsequently show, inconveniently, that the claimant went on to run a 10km race three weeks after being allegedly injured, as well as attending the Longitude music festival a few days later.

Amusing as it is to see the great and the good expose their feet of clay - and my goodness, it is - it's also a useful reminder that complaining about compo culture, however legitimate, has always been a form of social snobbery, and that the middle classes are every bit as enthusiastic about putting in claims as those upon whom they look down. They just think it's different when they do it. Bailey is not even the first FG TD to do so.

Alan Farrell, who'd been sharply critical of compo culture, sued last year after suffering minor injuries when a woman took her foot off the brake as a spider ran across her arm, and rolled her rental van into the back of his Audi in Dublin. The judge said there was "little or no notation to back up a claim of significant whiplash", and gave him €2,500.

Still, despite backing down from a proposal to set up a dedicated Garda unit to deal with insurance fraud, the Government's moral campaign against dodgy claims goes on.

Michael D'Arcy, the junior minister with responsibility for insurance reform, says premiums are also being driven up by otherwise honest people chancing their arm. Something has to give, but whether FG is in any position to lecture the country on what that something should be is an awkward question, because as a party it has always profited from rampant compo culture.

So many of its representatives have long been bigwigs of the legal profession, who have bought many a fine house in the leafier parts of south Dublin by representing claimants in such cases. Those lawyers benefit from the compo culture every bit as much as the claimants. In fact, they benefit from it much more. Claimants may hit the jackpot now and again, but lawyers can keep it going for decades.

The Irish Small and Medium Enterprises Association has called for lawyers who knowingly act for dishonest claimants to be jailed, but how could that ever be satisfactorily proven? It couldn't. And even if it could, the closeness of the political and legal elites has made reform down the years much less likely.

One thing that makes all this more lucrative is that payouts in Ireland are more than four times higher than in Britain, with the average payout for whiplash, which accounts for 80pc of motoring claims, coming in at €15,000, compared with £5,000 (€5,700) in the UK and €3,000 in France and Spain.

There have been periodic attempts down the years to curb these payments, most notably by putting claims initially in the hands of the Personal Injuries Board; but claimants can still reject the lower amounts offered by the board and go to court anyway in search of higher payments, which, with a solicitor at their side, they'll most likely get.

That's the real reason we keep having the same argument. The Injuries Board was set up in 2004 after a spate of complaints about compo culture. Here we are again, more than a decade later, with premiums still going up.

Before that, it was concerns about army deafness claims. Speaking in the Dail in 1998, FG's Jim O'Keeffe blamed "touts and ambulance chasers" in the legal profession for what was going on, a phenomenon he blamed on FF 10 years previously lifting the ban on advertising by lawyers - a ban which he himself, a solicitor by trade, stoutly supported. The wheels of government grind slowly.

Michael D'Arcy's working group was set up in July 2016; some proposals were adopted, but others remain to be tackled. Justice minister Charlie Flanagan explains that it's "an area of the law replete with complex constitutional and legal issues". Now it's going to another committee of judges to set out new payout levels. Deja vu is surely justified.

There is, of course, an argument that concerns about the compo culture have been exaggerated down the years for political reasons. Some even allege that insurers use it as an excuse to bump up premiums every year, despite fewer claims, with small business owners paying the ultimate price.

Spiralling costs have driven many to the wall. Indeed, with premiums rising so savagely for small businesses, and the president of the Irish Hotels Federation saying a couple of years ago that the cost of insurance was preventing new hotels from opening at all, it does raise the question of why anyone would go looking for trouble by putting up swings in the first place?

Let's just file it under "it probably seemed like a good idea at the time".

Whatever the reason, it's hard to be optimistic. Either the Dail has to take on vested interests in the legal profession or vested interests in the insurance industry, and, if previous experience is anything to go by, it's unlikely that it will do either with the necessary determination.

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