Managing Mass Damages Liability via Tort Law and Tort Alternatives, with Ireland as a Case Study

Abstract

Mass harm events pose liability challenges for public authorities that may be difficult to resolve via tort. A State can use statutory and non-statutory compensation funds to manage and avert its liability to pay damages to individual citizen victims. Compensation funds eliminate or minimise the traditional concept of fault and often replace it with a no-fault structure, ideally enabling swift payment of compensation to individual victims via an administrative scheme. The Irish government has repeatedly used this kind of solution for groups including victims of contaminated blood products, individuals who suffered abuse as children in State-sanctioned institutions, victims of unnecessary obstetric procedures and other public health failings. This approach has been necessary because multi-party actions are generally unavailable in Ireland, and because of entrenched access to justice problems. The evidence of their use reveals a haphazard pattern and inconsistent treatment of victims. Irish funds have aimed to compensate both the pecuniary and non-pecuniary losses of victims, often in a mixed way. The Irish approach is unsatisfactory because of the trend towards low and homogenised levels of compensation, poor procedure and the lack of other realistic redress alternatives. Overall, these compensation funds have been predominantly advantageous for the State from a cost and liability minimisation perspective. The situation could be improved if future compensation funds were properly designed and supervised, supported by appropriate legislation, and cognisant of the surrounding legal landscape and compensation fund jurisprudence from other European jurisdictions.