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JANUARY/FEBRUARY
19
furthered the stated legislative
objectives. Accordingly, whether
CAO's, shorter limitation periods,
jury screening, limiting the con-
tingent fee, etc., were appropriate
and adequate responses by the
legislature in response to the so-
called insurance crisis would not be
scrutinised.
In general, the Supreme Court
has adopted the "rational basis"-
position in regard to reviewing
these statutes, that is to say, that
it will not review this legislation if
there appears to be some sem-
b l ance of r a t i o n a l i ty to t he
legislative measure in question.
This " hands o f f " position is to be
con t r as t ed w i t h the Supreme
Court's approach to non-economic
legislation, for example, relating to
f undamen t al rights where any
interference will be looked at by the
Court w i th suspicion. In such
cases, there is no presumption of
constitutionality. Legislative inter-
ferences in this area are suspect
from the outset and the State has
a heavy onus placed on it to justify
the interference. For this reason,
some lawyers have attempted to
classify the tort reforms as being
non-economic in nature, affecting
the fundamental. rights of the
citizen and thereby inviting the
Supreme Court to view them w i th
suspicion. This approach has not
been successful.
At the State level, however, a
very different picture emerges w i th
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regard to the constitutionality of
some of these Statutes. In parti-
cular the arguments wh i ch were
rejected in the Federal Courts above
have found favour in many of the
State courts. For example CAP
statutes have been struck down as
being unconstitutional in eight of
the fourteen states where they
have been adopted. Again, in seven
out of the eleven states which have
adopted pre-trial screening of juries
in medical malpractice actions the
reforming legislation has also been
declared unconstitutional. When a
state legislative act has been struck
down by the state Supreme Court
then of course the state legislature
has to consider once more how it
will respond to the "insurance
crisis" problem now back on its
agenda. Sometimes it will draft
new legislation wh i ch will attempt
to take into account the judicial
objections voiced in respect of the
first act, but this new legislation, of
course, may, in turn, be subjected
to judicial scrutiny and runs the risk
of being declared unconstitutional
also. And so the process begins
once more.
Lessons for the Irish
Legel System
It is interesting in view of the above
and in view of recent reform in this
counry to examine Irish tort law
against the check list of reforms
suggested in the USA. As will be
seen the picture that emerges is
somewhat reassuring.
W i t h r ega rd to
pe r ce i ved
problems in the US tort system the
following comments should be
made in the Irish context. Insofar as
conce rn in the US i den t i f i es
u n l i m i t ed
awa r ds,
pun i t i ve
damages and the contingent fee as
major causes for concern, these
three factors do not figure as major
problems in the Irish scene. We do
not have the contingent fee, (and
the t wo Senior rule is about to be
modified); punitive damages are
available only in rare situations; and
in personal injuries a CAP exists for
gene r al d ama g es
( £ 1 5 0 , 0 00
according to
Sinnott -v- Quinns-
worth).
Outside of Cork the delay
factor does not appear to be
inordinate nowadays w i th most
cases getting on within a year or a
year and a half from the date of
setting down. Moreover, as has
been seen in the Stardust Tribunal,
a different method of handling
mass c l a i ms has n ow been
e s t a b l i s h h ed in Ireland, and
presumably sets a precedent for
f u t u r e
t r aged i es
of
such
dimensions. Also the number of
interrogatories and the extensive
discovery process available in the
US is not a feature of the Irish
system.
Aga i n st t he US c he c k l i st
therefore the problems which we
might consider looking at more
closely as factors which effect our
insurance costs are the following:
(I) the imposition of full liability on
a defendant for a small amount
of fault under the doctrine of
joint-and-several liability. Is this
fair?
(ii) greater disciplining of licensed
professionals w i th a review
perhaps of the desirability of
the self-regulatory sys t em
ope r a t ed by p r o f e s s i onal
bodies themselves.
(iii) the sugges t i on that juries
should be given guidelines as to
t he app r op r i a te range of
damages suitable in personal
injury cases.
In addition to these we could also
take on board, perhaps, t he
suggestion that further studies are
required on the jury awards, on the
" f a u l t " system of liability and on
the insurance factor to assess their
impact on the whole litigation
process.
The major flaws in the USA are
not features of our system and
perhaps our system of compen-
sating injured persons, while not
perfect by any means, should not
compel us to adopt hasty piece-
meal reforms wi t hout taking a full
comprehensive overview of the
situation. We must avoid " t he
j ump - u p - a n d - d own s y n d r ome"
which might propel us into a state
where our last position is worse
than our first.
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