Potential cost of claims against State to rise ‘significantly’ from €4bn

The potential cost arising from claims against State bodies, including clinical negligence actions, is set to rise “significantly” in the coming years, the Dáil’s spending watchdog has been told.

A rise in possible liabilities from €1 billion in 2012 to the current estimate of more than €4 billion – relating to 12,000 active claims – was described as "very alarming" as TDs quizzed the director of the State Claims Agency (SCA), Ciarán Breen.

Fianna Fáil TD Cormac Devlin asked Mr Breen how this increase came about.

Mr Breen pointed to a rise in the number of State bodies covered by the SCA’s work since 2012.

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He highlighted a change to the real rate of return in relation to damages that had a “very dramatic effect” in terms of increasing potential liabilities, particularly in clinical negligence payments.

And he added that “vastly improved” life expectancy for many clinical negligence claimants is reflected in the amount of damages awarded to support them during their lives.

Mr Breen said the SCA expects the potential liabilities to “rise more significantly over the next couple of years”.

Paul McAuliffe, another Fianna Fáil TD described the rise in possible liabilities over the years as “very alarming”.

Mr Breen said “We’re doing everything we can obviously to defray that and that’s one of the great challenges we have.”

Mediation

Social Democrats co-leader Catherine Murphy asked Mr Breen about mediation efforts in claims cases.

He said in clinical cases where damages were paid the proportion solved through mediation rose from 25 per cent in 2020 to 37 per cent so far this year.

Asked what led to the change he pointed to the pandemic situation where the courts only heard the most urgent cases and alternative ways were sought to deal with cases. He said the SCA has always been a proponent of mediation.

Ms Murphy said the sight of families on the steps of the courts after perhaps years of legal wrangling is “heartbreaking”.

She said no amount of money can undo damage done, giving the example of cerebral palsy caused by neglect during birth.

“People do want to get apologies, they do want to have that mediated settlement that is more than about the finance of covering the cost of future care,” she said.

She asked how increased levels of mediated settlements can be continued when the courts return to normal case load levels.

Mr Breen suggested the mediation experience may be an “eye opener” for some plaintiffs’ lawyers in future, that “this was a better system that you can get to a settlement much quicker.”

He also said a pre-action protocol for clinical negligence cases could lead to no legal proceedings being issued and the parties going straight to mediation.

However, he said that legislation may need to be amended for this and “that has delayed things unfortunately”.

CervicalCheck

The PAC was also told that the number of legal cases related to the CervicalCheck controversy now stands at 305.

A total of 245 cases have been initiated by affected women themselves and another 60 cases have been taken by family members over issues like psychological injury.

Forty-one cases have concluded so far – 33 in relation to claimants themselves and eight in relation family members.

The controversy over the screening programme was sparked by Limerick woman Vicky Phelan, who has cervical cancer, settling a High Court action in April 2018 over the reading of her smear test.

It later emerged that many other women had not been informed of an audit that had revised their earlier, negative smear tests.

Mr Breen said the State’s liability “is limited almost exclusively to the non-disclosure element” of the cases and the laboratories involved “carry the principle liability”.