Priority Questions. - Hearing Impairment Claims. – Dáil Éireann (28th Dáil) – Wednesday, 17 Dec 1997

Mr. M. Smith

At 30 November this year settlements had been reached in a total of 1,007 cases and court awards following hearing had been made in 28 cases. A further 29 cases were successfully defended or withdrawn. Compensation of £26.249 million and plaintiff costs of £4.492 million have been paid in respect of 1,064 cases finalised. The current average settlement is approximately £22,000 but this is within a wide range of awards and settlements from as low as £4,000. Total legal costs for the plaintiff in general are about 30 per cent of the award or settlement.

The units to which the claimants belonged are detailed in the schedule which I propose to include in the Official Report.

There is provision of £85 million in the 1998 Defence Vote for personal injury claims both hearing impairment related and of a general nature. It is estimated that approximately 90 per cent of this provision will be required for the finalisation of the hearing impairment claims likely to be dealt with in the courts during 1998.

I repeat that a rapid settlement policy whether by a tribunal or some other scheme would be effectively an unwarranted admission of liability and would, in turn, have the effect of inducing many more claims. Pending the production of the Irish handicap assessment system by the Department of Health, it is my view, and that of the Government, that the current strategy should be continued at least in the short term for as long as it has the effect of lowering settlement levels.

Schedule: Hearing Impairment Cases Finalised.

1 Air Defence Regiment	8
1 Armoured Car Squadron	22
1 Cavalry Squadron	30
1 Company An Slua Muirí	1
1 Field Artillery Regiment	10
1 Field Engineer Company	4
1 Field Medical Company	1
1 Field Military Police Company	1
1 Field Signal Company	2
1 Field Supply And Transport Company	4
1 Garrison Army Ordnance Corps	1
1 Garrison Military Police Company	4
1 Garrison Ordnance Company	26
1 Hospital Company	7
1 Infantry Battalion	5
1 Maintenance Engineer Company	2
1 Security Company	1
10 Infantry Battalion	15
11 Cavalry Squadron	1
11 Corps of Engineers	1
11 Field Engineer Company	2
11 Field Signal Company	2
11 Field Supply and Transport	1
11 Infantry Battalion	2
12 Infantry Battalion	159
13 Infantry Battalion	15
14 Battalion Air Defence Regiment	1
14 Infantry Battalion	5
16 Infantry Battalion	6
17 Infantry Battalion	2
18 Infantry Battalion	4
19 Infantry Battalion	1
2 Air Defence Battery	3
2 Cavalry Squadron	8
2 Field Artillery Regiment	17
2 Field Engineer Company	10
2 Field Medical Company	1
2 Field Military Police Company	2
2 Field Signal Company	2
2 Field Supply and Transport Company	5
2 Garrison Military Police Company	4
2 Garrison Ordnance Company	5
2 Garrison Supply And Transport Company	8
2 Hospital Company	11
2 Infantry Battalion	25
2 Supply and Transport Company	1
20 Infantry Battalion	4
21 Infantry Battalion	9
22 Infantry Battalion	5
23 Infantry Battalion	3
24 Infantry Battalion	4
25 Infantry Battalion	3
27 Infantry Battalion	25
28 Infantry Battalion	42
29 Infantry Battalion	20
3 Air Defence Battery	4
3 Cavalry Squadron	4
3 Corps Engineers	1
3 Field Artillery Regiment	3
3 Field Engineer Company	5
3 Field Military Police Company	1
3 Field Signal Company	2
3 Field Supply and Transport Company	3
3 Garrison Military Police Company	4
3 Garrison Ordnance Company	6
3 Garrison Supply and Transport Company	4
3 Hospital Company	1
3 Infantry Battalion	63
30 Infantry Battalion	53
4 Cavalry Squadron	2
4 Field Artillery Regiment	10
4 Field Engineer Company	5
4 Field Military Police Company	3
4 Field Signal Company	5
4 Field Supply and Transport Company	2
4 Garrison Military Police Company	2
4 Garrison Ordnance Company	5
4 Garrison Supply and Transport Company	1
4 Hospital Company	2
4 Infantry Battalion	21
5 Cavalry Squadron	2
5 Field Artillery Regiment (FCA)	1
5 Field Signal Company	2
5 Infantry Battalion	26
6 Brigade Headquarters	2
6 Field Artillery Regiment	10
6 Field Military Police Company	1
6 Field Signal Company	14
6 Infantry Battalion	20
61 Infantry Battalion	1
7 Field Artillery Regiment	4
7 Infantry Battalion	6
8 Field Artillery Regiment	1
8 Infantry Battalion	3
9 Field Artillery Regiment	1
9 Infantry Battalion	9
Administrative Wing	8
Air Corps	1
Air Corps Headquarters	3
Air Support Company, Signal Wing	12
Army Apprentice Corps	3
Army Apprentice School	10
Army Ranger Wing	12
Army School of Music	11
Army School of Music Curragh	1
A.H.Q. Signal Company	3
Base Workshops Company, Supply and Transport Corps	1
Clancy Barracks Company	5
Command Headquarters Staff, Curragh Command (Ex Colmoney Camp Staff)	11
Command Headquarters Staff, Eastern Command (Ex Kilbride Camp Staff)	1
Command Headquarters Staff, Southern Command (Less Kilworth Camp)	2
Command Headquarters, Western Command	6
Command Training Depot, Southern Command	1
Command Training Depot, Eastern Command	5
Command Training Depot, Southern Command	6
Command Training Depot, Western Command	3
Curragh Command Band	2
Curragh Command Supply and Transport Company	13
Curragh Command Vehicle Workshops	7
Depot Artillery Corps	12
Depot Cavalry Corps	16
Depot Engineer Corps	19
Depot Medical Corps	6
Depot Military Police Corps	20
Depot Ordnance Corps	13
Depot Signal Corps	8
Depot Supply and Transport Corps	14
Eastern Sector, Observer Corps	1
Engineering Wing	3
Equitation School	1
General Training Depot	10
Gormanston Camp Company	1
Headquarters 3 Brigade	1
Headquarters Curragh Command	1
Headquarters Staff, 4 Brigade	3
Headquarters Staff, 6 Brigade	4
Headquarters Staff, Curragh Command FCA	1
Headquarters Staff, Eastern Command FCA	2
Headquarters Staff, Eastern Command Infantry Force	4
Headquarters Staff, Southern Command FCA	3
Headquarters, Air Corps Group	1
Headquarters, Curragh Command	1
Headquarters, Observer Corps	1
HQ E Commmand	1
HQ Southern Command	1
McKee Barracks Company	18
Military College	43
Military Detention Barracks	1
NCO School General Training Depot	1
Naval Base and Dockyard	4
Naval Depot	2
No. 1 Support Wing	2
No. 3 Support Wing	2
Supply and Transport Curragh Command	1
Survey Company	2
Tank Squadron	10
The Equitation School	3
The Military Detention Barracks	3
Training Wing	6
Unit Not Recorded	19
Western Command Training Depot	1

The details above also include cases finalised since 1 December 1997.

Mr. Bell

Will the Minister indicate if he proposes to include this subject in the Defence Forces (Amendment) Bill or by separate regulations or amended regulations under the existing DFR? Equally, to give this balance, is he aware of the statements of the president of PDFORRA that he was aware of situations where men on the firing range were actually ordered to take off proper ear protection muffs? Is he aware that I, as an officer of the Defence Forces, have had similar experiences on the firing range when I was ordered by a senior officer to remove proper ear protection, which is now being used by the Defence Forces on firing ranges? In view of the discussions at the Committee of Public Accounts and on the Supplementary Estimates, is he aware that many injuries are caused not only to members of the Defence Forces and the FCA on firing ranges but to those in what is known in Army parlance as "the butts"?

Mr. M. Smith

I have said many times that we are applying health and safety standards of the late 1990s against a backdrop of what was the norm in most defence forces throughout the world for the greater part of this century. There is ample evidence to show that there were regulations and guidelines in place as far back as 1952 but there is no substantial evidence or written record as to how they were implemented in individual cases, and that has posed real difficulties for us in the courts.

We will be bringing the memorandum on the changes to the Defence Act before the Government soon and I will see whether the Deputy's proposition can be included.

Mr. Bell

I asked if the Minister is aware that many injuries caused to members of the Defence Forces were in the service units, such as "butt" duty.

Mr. M. Smith

It is fair to say, without getting into great detail on this, on the basis of the best evidence that has been made available to me that there is a significant number in the Defence Forces who have suffered a serious hearing handicap whatever the circumstances of the time, of which I do not have the details. I have said that I want to be their guarantor. I want to make sure that they are properly protected and compensated. My difficulty is that, as the scenario has developed, others have been encouraged into this mill which creates the sort of problem with which this House is trying to grapple today.

Mr. Bell

In view of the figures he has given in answer to my Priority Question and the large percentage of the cases already processed through the courts which have been proven in favour of the injured applicants, will the Minister agree that establishes negligence on the part of the State? If that is the case, the State is responsible for compensating those serving and former members of the Defence Forces for the injuries so caused.

Mr. M. Smith

I accept that the State is compensating and will continue to compensate every genuine case coming before or outside the court for settlement. I would always want to see that happen and to ensure we are as generous, understanding and helpful as possible in all these cases. I do not accept that the State has a responsibility beyond that because I have looked at the experience in most other countries where soldiers who were in warlike circumstances do not have this particular experience.

It is also true that, to date, the courts here have not accepted the international hearing handicap systems which apply elsewhere. That, of course, has led to a situation where awards were granted in cases where proof was also provided that there was no hearing handicap and no significant hearing loss. It is in that area that the difficulties lie and where we must address the issue in the interests of the taxpayer, equity and fair play. Those who have genuine claims have no fears.

Ms Fitzgerald

I find a contradiction in what the Minister is saying. On the one hand on the examination of the Estimates the other day the Minister was saying that the vast majority of people who have cases in court here would not get compensation anywhere else. Then he goes on to restate his concern for genuine claimants. It seems to me that we must move urgently to a situation where we can distinguish clearly between genuine claimants and anybody who is putting forward a claim who, in another jurisdiction and under an international hearing test, would not receive compensation. If the courts do not accept international tests, such as the American model, which is accepted in other countries, what guarantee is there that, when a test formulated by Irish experts is introduced, the number of claims will be reduced or that it will be accepted by the courts?

Mr. M. Smith

I can provide no such guarantee. I inherited this problem which has been travelling down the road like a juggernaut with no brakes for several years. The number of claims has quadrupled in recent times. There is no contradiction between my concern to deal with genuine cases and ensure that people with significant handicap arising from exposure to gunfire are properly compensated and my protection of the taxpayer in circumstances where claimants would not receive awards, in court or outside, in other jurisdictions.

Ms Fitzgerald

The Minister's reply seems to imply there are no genuine claimants.

Mr. M. Smith

There are two separate circumstances involved and there is a real difference between those with significant handicap and those without it. In some cases the courts have decided that if there is any deviation from perfect hearing — namely, a person's standard of hearing at birth — people are entitled to compensation. I do not share that view. If I were to share it, I would have to accept that a large majority of the population would be automatically entitled to compensation because of deterioration in their hearing during their lifetimes. I cannot accept that view.

Ms Fitzgerald

The Minister implied there are few genuine cases before the courts and stated that compensation would be paid in a relatively small number of these in any other court.

Mr. M. Smith

I did not.

Ms Fitzgerald

At the committee which dealt with the Estimates, he stated that he wants to demonstrate to the courts that many of the claimants have no hearing handicap and that the vast majority do not have any significant handicap. That seems to suggest he is of the opinion there are very few genuine cases before the courts.

Mr. M. Smith

I would prefer not to give exact percentages in respect of this matter. It is fair to state that, on the basis of international experience, and what has happened in Irish courts, if 40 to 60 per cent of cases were to be tried in other jurisdictions, under acceptable international hearing criteria, the claimants would not be awarded significant damages.

Ms Fitzgerald

Is the Minister stating that 40 per cent of cases are genuine?

Mr. M. Smith

I do not want to state exact percentages.

Proinsias De Rossa

There is an air of déja vu about this issue. The attitude adopted by the Minister and his Department in respect of these claims is almost a mirror image of that adopted to married women who sought compensation for a loss of social welfare payments as a result of the actions of the Department of Social Welfare and the Government of the day. The ultimate net cost to the State in that instance was £260 million.

An Leas-Cheann Comhairle

A question to the Minister.

Proinsias De Rossa

I am not trying to anger the Leas-Cheann Comhairle but it is important that the Minister understands my question. For that reason, I have provided a preamble.

An Leas-Cheann Comhairle

It is important that every Deputy be given the opportunity to illicit as much information as possible from the Minister. If Deputies make statements, it curtails the time available to the Minister to deal with the issues raised.

Proinsias De Rossa

I appreciate that but the time taken to interrupt me in asking my question also wastes the time available. My preamble was by way of ensuring that the information we might obtain from the Minister will be new information.

An Leas-Cheann Comhairle

I do not accept the need for a long preamble.

Proinsias De Rossa

I am tempted to repeat my preamble but I will try to avoid doing so.

Mr. M. Smith

There is no need for the Deputy to repeat himself because I heard him the first time.

Proinsias De Rossa

As already stated, the net cost of compensation payments to married women was £260 million when settling in the first instance would have cost £18 million. Are we not now going down the same road, given the use of pejorative terms such as "scam", "avalanche" and "juggernaut"? Any citizen of the State who feel they have a right to claim compensation, social welfare payments, a medical card, headage payments, etc. are entitled to apply for them. It would make better sense if the Department of Defence tried to develop a system which will not drag thousands of people through the courts.

Mr. M. Smith

I flatly reject Deputy De Rossa's contention. He may pretend to the House that he is the man who cares. I hold myself as no greater or better than anyone else. I am merely concerned that everyone with a genuine claim against the State or other interests is treated properly. The Deputy wants me to surrender and accept liability, take the quantum of award on offer and inform the taxpayer that education, health and other services will be affected by payments to potential claimants who would not receive awards in other jurisdictions. It would be highly irresponsible for me to do so.

During my short time in the Department of Defence, I have set out to give this matter serious consideration and find a system which will be fair and equitable to all sides. I am committed to continuing that process and I have received genuine support from Members who have expressed their views publicly and made suggestions to me in private. I will pool those views and suggestions in attempting to resolve this problem. However, I will not play second fiddle to anyone in respect of my dedication to be fair and deal with matters quickly. Earlier court awards in respect of these claims were so great that the final bill — currently estimated in billions of pounds — will be astronomically higher.

Proinsias De Rossa

If the Minister regards those cases as unfair, did he appeal any of them to a higher court? Has he considered ways of dealing with claims, other than driving everyone into court?

Mr. M. Smith

I have considered a number of ways to help solve this problem with which I have been dealing constantly for several weeks. I have put a certain amount of action in train and I am confident I will be able to develop a different system which will be less onerous, legalistic and costly and will be as fair as possible. That is what I am determined to do. I have taken every possible action to reach that position in entering discussions with and taking advice from interested parties. The Deputy's advice is as welcome as that of anyone else because I want this matter to be dealt with properly, without leaving us open to the problems we will face if current circumstances prevail.

Mr. Timmins

In a written reply on 5 November the Minister referred to the establishment of an expert group by the Department of Health and Children to examine the method of assessing hearing handicap. He stated it was hoped the group would report by the end of this year or early next year. At what stage is the group's report?

Mr. M. Smith

I am in almost constant contact with the group which has met the experts and is working on the process at present. It is also receiving help from external sources and the views of other experts may be required. I will be disappointed if I have not received its report by the end of January or the beginning of February.

Mr. Bell

Does the Minister agree that for a period of five years following the lodgement of the first claims, the regulations relating to proper hearing protection were not applied on firing ranges? I do not hold the Minister responsible because this happened long before he assumed office. I have been warning the House about this problem for 16 years. Does the Minister agree that the level of regulation applied in the countries to which he referred was not applied in Ireland and that is what caused this problem? If no case has been appealed, how can we say the cases are not genuine?

Mr. M. Smith

The comparisons we have made have been with defence forces in order to get expert advice on what has happened, even where the exposure to training ranges and gunfire associated with warfare, etc., has produced nothing like the significant hearing handicap allegedly taking place in the Irish Defence Forces. As I indicated on the Estimates debates, I also had discussions with a great number of people in the Defence Forces, whether in Lebanon, Athlone, Cathal Brugha barracks or McKee barracks, talking to those in the enlisted ranks and at officer level who have stood on the ranges. I have listened to them but I remain to be convinced. Whereas one cannot provide proof, I do not contend that there were no cases of negligence. However, in a great number of cases the norm for the time was applied and as far back as the 1970s 110,000 ear plugs and other equipment were purchased by the Defence Forces. As and from 1987, these measures were further strengthened. The Defence Forces have applied rigid health and safety standards since then and have implemented about 65 different provisions to ensure people are properly protected.

As to why no appeals have been lodged, I am not in a position to indicate the legal advice. I made comparisons on the basis of what is happening elsewhere and on the level of quantum awards for similar cases before the same courts. In one case, an award in respect of an ENT report of handicap was £5,000; for an exactly similar case in the Defence Forces, the award was £45,000. These are ambits we must try to control in order to have a more unified system. As I said to Deputy De Rossa, I am trying to arrange that as quickly as possible. I assure the House that is my aim and when we return to discuss these questions in the New Year I hope we will have advanced that position much further than we have today.

Ms Fitzgerald

Given the lessons the State has learned from the equality arrears and hepatitis C cases, is the Minister considering an alternative system to deal with these cases, such as legislation or an administrative-based system, as well as taking action to establish the Irish hearing test and to reduce lawyers' fees?

Mr. M. Smith

Many different legislative proposals have been put before me and these are being actively considered. Some of them are quite draconian and I would not contemplate those; others may have uses and these must be studied further. I am intent on putting in place a totally different system. I will not make comparisons with other tribunals or types of cases. This has its individual character and will require certain grades to be accredited and agreed, which will also have to stand up medically and legally and be fair. That is the aim.

Dáil Éireann debate -
Wednesday, 17 Dec 1997