I wish to share my time with Deputy Stanton.
Adjournment Debate. - Hearing Impairment Claims.
Is that agreed? Agreed.
The Defence Forces is one of the few State institutions which has never been called into disrepute. It is often the subject of much praise for its role at home in internal security operations and for peacekeeping duties overseas. This has changed recently, however, with statements and accusations being made which have not helped the country's image. Responsible and constructive contributions can be made by less destructive means.
Since the establishment of the Gleeson commission, pay and conditions have improved greatly in the Defence Forces. I had the honour of serving in the Army for almost 20 years. At all times I found the commitment and sense of duty to be of the highest order. Many personnel worked at unpleasant tasks in poor conditions, by and large accepting this as their lot. I saw members of the Defence Forces risk their lives, and some lose theirs, for the greater good. They never expected or sought to make a claim.
Hearing loss in the Defence Forces is an issue that has gathered momentum in recent years. In 1992 49 claims were received. This has increased to the present number of 100 claims per week. It is irrelevant to examine how the claims propagated, as those claims are now before the courts.
The high level of compensation awarded by courts for certain hearing loss patterns is also irrelevant. In other jurisdictions those would be regarded as being in the normal range and would attract little or no comment.
Exposure to gunfire can cause hearing loss. Present judicial attitudes hold that if hearing has been damaged in any way, the plaintiff must be compensated. Soldiers claim their hearing was damaged on firing ranges where they were not given adequate ear protection as required by regulations. In many cases a considerable degree of hearing loss has been sustained, while in others minimum hearing loss has occurred. Certain questions must be asked, assuming that prior to 1987 the level of protection afforded to personnel was inadequate by modern standards. Did the State take practical measures at the time? Earplugs were issued in the mid 1970s. On what recommendation were these purchased and were they assumed to be satisfactory at the time? Did the State provide an acceptable duty of care based on the information it had then? From the late 1970s I was acutely aware that hearing could be damaged if ear protection was not worn during range practice.
The Minister has recently hinted at setting up a tribunal. It is still too early to take this approach, and the Minister should not put administrative convenience before the public interest. He should ensure his legal team pay great attention to the unit commander's certificate, which details information on the claimant, and particularly the other information column, which details previous employment and other activities. In many cases where such information may have had a significant bearing it has not been used.
The cortical electrical response test, an objective hearing test, should be carried out on all claimants. Army deafness may open the floodgates of litigation. Where does the duty of care stop? Present health and safety guidelines tell us those who sit in front of a computer screen should have an adjustable seat. Will people who did not have this facility in the past make claims in the future?
Can we legislate to prohibit the "no foal, no fee" policy? If so, will the cost of litigation be outside the reach of the common man? Has the judicial system, which should be the servant of the people, now become the master? Should we consider legislation which would establish particular rates of compensation for specified levels of injury? The Minister has a difficult task ahead, but it must be addressed with the utmost urgency.
The role of the FCA in this matter is inclined to be forgotten. From the point of view of the training of young men and women, I welcome the fact that a study group has been set up. However, I am concerned they are not issued with personal ear defenders. As a consequence ear defenders have to be shared at ranges. I urge the Minister to rectify this.
Thank you for the opportunity to raise this issue. The interests of taxpayers and genuine claimants must be protected by the Minister for Defence in the State's handling of court actions by members of the Defence Forces over hearing damage. Fine Gael supports genuine claimants who have suffered significant hearing disability as a consequence of their work on our behalf in the Defence Forces. It is important that members of the Defence Forces should have the same recourse to justice as every other citizen.
It is clear that strict parameters for hearing damage measurement and legal fees must be set down before a new wave of claims comes through the courts system in the new year. As a first step I ask the Minister to commence an urgent review of the 1,000 cases already dealt with through the courts, to examine the patterns of settlement and the implications for the State's approach to liability. Such a review should take full cognisance of the cost breakdown in cases being heard, which are as follows: £5,500 per case for solicitors, £2,500 for barristers, £2,000 for witnesses and a departmental cost of £6,000 per individual case, a total cost of £16,000 before a penny is awarded to any claimant.
The review should also take into account that 20 civil servants have been allocated to work on this issue in the Department, 20 extra solicitors are now involved in the Chief State Solicitor's Office and a number of Army officers are working full time on this issue. The Minister will agree that the potential scale of liability to the State has far-reaching implications, if the system in use remains unaltered and loosely managed. I ask the Minister to get an urgent report before Christmas from the expert group which he has established to set out an internationally verifiable test to assess hearing damage and permanent disability. The remaining number of days of the court term should be used by the Minister to hurry negotiations with the legal profession to examine how best to reduce costs in these cases. Will the Minister meet as soon as possible with the Incorporated Law Society who states in today's media reports that there is a better way of managing the claims and who criticises the State's approach as one that is guaranteed to maximise rather than minimise costs.
The Minister will be aware that the public is concerned about a compensation culture out of control, not because of successful litigation but because of the huge legal costs associated with such actions. It is clear, given the magnitude of what is going on, that before we can move to any other system, such as an awards tribunal or a panel, agreement must be reached by all concerned on the valid criteria to be used in assessing hearing handicap.
Will the Minister examine whether an approach could be taken via the social welfare system? Would this be the most effective way of providing support for those genuine claimants suffering verified long-term disability from hearing damage? I sound a note of caution that the potential knock-on effect of these claims from members of the Defence Forces, who suffered occupational damage to their hearing, needs to be carefully handled if we are not to have an avalanche of litigation from workers in other State sectors where high levels of noise had been part of their work environment.
I do not want to imply that individuals do not have a right to seek recourse to justice through the courts, they certainly do but the Minister's objective must be to minimise the legal fees, introduce an internationally validated hearing damage measurement and look after genuine claimants with speed and fairness. This may ultimately entail an administrative based award system rather than the former slow and costly courts procedure.
I am grateful to the Deputies for providing me with the opportunity of dealing with this issue. Army hearing loss litigation is a matter of grave concern to me and the Government. A huge amount of taxpayers' money is at stake. We must ensure every effort is made to contain this expenditure while having regard to the legitimate claims of serving and former members of the Defence Forces who may have been genuinely injured.
With over 10,200 claims made against the Department and claims continuing to arrive at a rate of 100 per week, it is evident this is an enormous problem. In recent days there has been tremendous media and public interest in the subject. This is something I welcome. In view of the huge potential cost it is important that public opinion be well informed as to the extent of the problem and the issues involved. There has been criticism of the validity of many of the existing claims. I hope we can maintain a balance in debating the issue. There are genuine claims and I am anxious all claimants are treated fairly.
It is accepted that unprotected exposure to noise such as gunfire may cause high tone hearing loss. Of itself, this does not induce a significant handicap. Normally the ability of an individual affected by high tone hearing loss to hear everyday conversation remains largely unaffected. In such circumstances he or she has not incurred a significant handicap and a large compensation award should not be warranted.
This is not simply the view of the Department of Defence. There are internationally accepted hearing handicap assessment systems. There are systems in America, Britain and other countries which reflect this consensus. To date, such systems have not found favour in our courts. Because of this the Department of Health and Children is preparing as a matter of urgency a hearing handicap assessment system. A group of specialist hearing consultants have been convened to examine the matter. I hope their report will be available early in the new year. When completed the hearing handicap assessment system will be adduced in evidence in court. I am advised that, if it is accepted by the courts, it may have a marked effect on the level of damages payable.
The second point I wish to address relates to the costs incurred by the current strategy of defending rather than settling cases. There are two difficulties. The lack of an agreed hearing handicap assessment system is a major impediment in negotiating settlements. The State cannot settle cases en masse at the current level of quantum because this is too high. A rapid settlement policy, whether by a tribunal or some other scheme, would require a blanket admission of liability. This could have the effect of inducing many more claims. Such an approach would require us to ignore advice from eminent medical experts to the effect that the majority of claimants do not have a serious hearing handicap.
The current strategy of running selected cases is producing results. A number of cases have been dismissed by the courts and, more importantly, the overall level of quantum has been reducing, particularly in the current legal term. Pending the production of a hearing handicap assessment system by the Department of Health and Children the current strategy should be continued at least in the short-term for as long as it yields such positive results.
With regard to the legal costs involved the director general of the Incorporated Law Society of Ireland has suggested that he meet with my Department and the Chief State Solicitor with a view to discussing how the cases could be processed in a more cost effective manner. I am happy to co-operate with this approach and a meeting has been set up for next week. At this meeting my officials will propose to the Incorporated Law Society of Ireland that, in view of the large volume of hearing cases being handled by some solicitors, a discount should be given in relation to the size of the fee. There is a remarkable similarity in all the statements of claim coming into the Department dealing with the issue of hearing loss. With the advent of the word processor there is a major reduction in the amount of work involved in the preparation of these similar cases by solicitors. This suggests there may be scope for a reduction in the level of fees charged. While fully aware of the taxing system available in the courts, it behoves the profession, in view of the public interest, to show its goodwill by cooperating with the State in effecting a reduction in these fees.
The Government is prepared to compensate those who have suffered a genuine injury and are suffering a significant handicap. What we are not prepared to do is waste taxpayers' money on compensating individuals whose hearing is normal for their age or whose handicap is so small that they did not notice it until they spotted an advertisement in the newspaper inducing them to make a claim. The money that has been spent and may be spent on this issue could be put to far better use in projects dealing with health, education, social welfare and infrastructure generally.
I thank Deputies Frances Fitzgerald and Timmins for their very constructive approach to this matter this evening and look forward to a continuance of that consensus. It is a nightmare scenario I have inherited. I want to find practical solutions and am open to considering suggestions from all sides of the House which would take account of what Deputy Timmins said — that we have the greatest pride in the work and achievements of our Defence Forces. As Minister for Defence I would be the last person to diminish that pride and honour in the slightest degree.
What I am endeavouring to do, with the support of the House, will do more to enhance that pride and honour in the longer term rather than standing idly by and watching the litany of claims being submitted without paying due attention to the kinds of processes which can and must be put in place.
I can assure both Deputies I will bear their suggestions in mind.
The Dáil adjourned at 9.05 p.m. until 10.30 a.m. on Wednesday, 3 December 1997.