I move:
"That the Bill be now read a Second Time."
I have the greatest respect for the Defence Forces and for their record of loyalty and service to the State. In the course of recent months I have been greatly encouraged by many letters and phone calls from serving and former members of the Defence Forces. Those who have taken the trouble to contact me have overwhelmingly supported the Government's policy in tackling this complex issue.
As Minister for Defence, my overriding priority is to lead to a successful conclusion the redevelopment and revitalisation process which has been under way for a number of years. That remains my primary concern. When facing the thousands of claims, foremost in my mind has been the appalling damage wrought on the morale of military personnel and on the image and reputation of the Defence Forces as a major and important national institution.
In recent months, I have stressed again and again to the soldiers I met that the reorganisation and revitalisation of the Army, Naval Service and Air Corps will go ahead. While public attention has been centred on compensation claims, positive developments within the Defence Forces have continued apace.
Recently, my Department launched the procurement process for new armoured personnel carriers, the first such re-equipment programme since the 1970s. A programme of major upgrading of existing armoured vehicles is being launched. Batteries of refurbished artillery guns are currently being delivered. Before the end of this year, the programme to replace the Army's radios at a total cost of £11 million will be completed. A new ship is being constructed for the Naval Service. For the first time ever, we have a policy of continuous recruitment. Across the Defence Forces, numerous building and refurbishment works are taking place. In the Naval Base at Haulbowline, nearly £3 million will be spent on a new dining complex. Work on a major new hangar will shortly get under way at Casement Aerodrome. Major projects are also in train for Collins Barracks, Cork and at Finner Camp in County Donegal.
The Exchequer must rise to meet the ultimate expense arising from compensation claims, regardless of other commitments. Since, as a society, we have learned the hard way that ultimately Government borrowing merely postpones taking the hard medicine, cuts will have to be made should the ultimate costs mushroom to doomsday proportions. In that event, it is unlikely the Government would start by cutting spending on health, education, welfare and the environment. On the contrary, it is far more likely that at an early stage of such a crisis, the Defence Estimate would be ravaged, leading to a reduction in numbers and the wholesale abandonment of development plans. Therefore, we must fight to contain the cost of compensation claims within reasonable limits, not only in the interest of equity and fair play, but ultimately to defend and protect the Defence Forces.
Given the background to this problem, I hope we will see a large measure of cross-party support for the Government's response to a very difficult situation. I do not wish to engage in a party political slagging match. On the contrary, I hope to prevent one. For the majority of the period during which this problem unfolded, the parties now in Opposition were in power. I do not criticise what they did. On the contrary, as I outline the history of this problem as it has developed, and take the opportunity to lay to rest several myths that have grown up, I hope it will be clear to any fair-minded observer that, at each stage, Governments formed from both sides of the House sought to respond constructively and, with due regard for the independence of the courts with regard to the rights of genuine claimants and the protection of the Exchequer.
I am here this evening to commend to the House an unprecedented form of legislation. When the Bill is passed, the Judiciary, who are constituted as an independent branch of Government, will be required for the first time to have regard to a scientific standard when a particular category of personal injury cases is heard. Deputies will rightly want to be assured that the separation of powers between the Legislature and the Judiciary is being fully respected in the proposed legislation and that the rights of individual claimants are properly vindicated. The measures set out in the Bill are necessary and are in the public interest. A careful balance has been struck between the independence of the Judiciary and the need to legislate to ensure consistency. The Bill represents a measured intervention in the area of personal injury legislation with a view to achieving a justified and reasonable objective.
In the course of the general public debate, the record of the Defence Forces in protecting soldiers has been the subject of intemperate and unjustified criticism. It has been alleged that, being aware of the problem since 1952, nothing was done until 1987. To put it bluntly, this is an untruth and I would like to set the record straight.
Medical awareness of the potential hazard to hearing posed by noise has evolved gradually. In 1952, knowledge was limited compared to today. Equipment for the measurement of sound levels was primitive at that time compared to modern standards. Scientific opinion was dependent on the much more limited tools of the time. In the aftermath of World War II, there was a dawning awareness that soldiers exposed to the extreme noise of war sometimes suffered from a dulling of their hearing. The precise link between exposure and level of injury was not understood as clearly as it is today.
During the 1960s, considerable research was carried out in Britain and America and gradually a clearer picture emerged. However, to put matters in perspective, it was not until 1975 that detailed regulations for the protection of industrial workers in Ireland were made under the Factories Act. In this context, the response of the Defence Forces in issuing ear plugs to all personnel in the early 1970s was well ahead of the practice elsewhere in Ireland and only slightly behind military practice in the US and Britain. Lest there be any doubt about it, I want to re-emphasise what I said. The Defence Forces, on their own initiative, were buying and issuing tens of thousands of ear plugs before the question of hearing protection was meaningfully addressed in regulations covering other Irish employers.
The ear plugs in question were similar to those on issue to the British Army. They were among the best available at the time. In truth, they compare poorly with modern ear defenders. There were problems fitting them. Personnel found them uncomfortable to wear, and it appears their usage was unpopular. In conformity with the practice of the time, it was left to each individual to follow advice and wear the plugs. It would appear now that many decided to ignore the safety instructions and chose not to. However, I emphasise that similar problems were encountered elsewhere. The plugs in question were products of their time reflecting the position that, even as late as the 1970s, awareness of the hazard posed by noise was still evolving.
However, long before any litigation commenced, and long before any of the alleged injuries came to light, better plugs were developed and issued, and a stricter regime of training and enforcement introduced. Once again, the Defence Forces led the way in introducing a comprehensive hearing conservation system in 1987, a full two years before the health and safety legislation addressed the question. Although the tidal wave of compensation claims was then completely unforeseen, it is important to note that without any compulsion from outside regulators, before any legislative requirement, in advance of civilian employers generally, a major reform was undertaken by the Defence Forces on their own initiative, resulting in a comprehensive regime which has subsequently withstood challenge in the courts. However the measures taken may appear now, they represented the best available at the time and were a genuine attempt to take all necessary care of the health and hearing of soldiers.
Given these facts, it may legitimately be asked why the claims are succeeding. To successfully defend a claim, it is necessary to be able to prove in the case of each named individual that he was issued with plugs and wore them every time he fired on a rifle range. Quite understandably, records in such detail were not maintained and, given the passage of time, the production of such detailed evidence is an impossible task. Regrettably, the fact that 81,000 sets of Sonex ear defenders were issued in the 1970s and early 1980s appears to be of no relevance in an individual case before a court. However, I emphasise that there is a world of difference between being negligent on the one hand and, on the other, being unable to defend oneself because of the passage of time and a lack of records and evidence. The matter is compounded when the actions of 20 years ago are viewed with the effortless wisdom of hindsight, through the lens of the 1990s.
Leaving aside the Army's record in hearing conservation, Deputies are also entitled to be reassured that the problem posed by the avalanche of claims has been properly managed. Because a number of untruths have unfortunately gained currency in recent times, I will outline all that has happened from the time claims first arose until the necessity for this unprecedented legislation became apparent.
It is absurd to suggest that it was known in the Department of Defence as far back as 1994 that we had a looming crisis in Army deafness claims. The emerging dimensions of the present crisis have been visible only for around 18 months as attempts to persuade the courts of the relatively minor nature of the injuries received failed and as significantly large damages were awarded, thus encouraging more claims.
In 1994, only a handful of claims had materialised and it was then uncertain how the courts would address them. Even as late as the beginning of 1996, as few as 2,000 claims had been received. I regard this as very important, as my Department has been criticised in some quarters for its lack of clairvoyance. At that stage, the Department was reassured by the advice of leading medical experts that the cases coming forward showed little evidence of material hearing loss. Added to this was the knowledge that noise induced hearing loss does not increase when exposure to noise ceases. Accordingly, a connection between symptoms emerging in 1995 and service prior to 1987 should, in logic, be difficult to establish. It was against this background that cases began to run before the courts. I also emphasise that there is a considerable time lag between the receipt of a claim and listing before a court. Accordingly, a large number of cases were in hand before the courts began to take a view one way or the other.
The cases as they had been heard before the courts went as follows: an isolated case was given an award in August 1992; the next case did not arise until February 1994 — in this case the claim was dismissed; arising from the time lag before cases come to hearing, it was not until December 1995 that a landmark case, the B case with little actual impairment, was heard in the High Court and an award of £45,000 was made; it was not until June 1996 that another case, the N case, came to hearing — the claimant received £24,720, notwithstanding the fact that the presiding judge found that the individual had persevered with a claim for loss of hearing that, on relatively clear evidential grounds, was unsustainable. I have nothing to add to the court's stated reservations about the plaintiff's honesty. Without labouring the point, I trust it will be clear to all Members that this case came as a shattering blow to the State's defence as it laid down a precedent that, even where the plaintiff has been found to be untruthful in the matter of hearing loss, he may still receive substantial compensation for tinnitus. Severe tinnitus — a constant ringing in the ears — is normally present in a small minority of hearing loss cases. It cannot be measured objectively. The case I have just mentioned prompted a major increase in the number of claims.
One further case came to hearing before the summer recess in 1996 and was awarded £25,000. However, it was the sixth, the K case, that proved to be a major landmark. An individual was awarded £80,000 for a minor hearing loss. Although this figure was subsequently reduced under negotiation following a Supreme Court appeal by the State, and although similar cases have subsequently received as little as £5,000, the impact of this judgment is best illustrated by the following statistic: in the five years leading up to this case, a little over 4,000 cases had been submitted to the Department of Defence; in the nine months following it, another 4,000 were received. The floodgates were literally burst open by this judgment. A further case was awarded £17,500 in December. In addition, 136 cases were settled by negotiation during 1996.
However, three cases were brought to hearing in January 1997, with two of them dismissed. I emphasise that as a large number of cases began to be listed for hearing in February 1997, ten cases had gone to court and three had been dismissed. Standing out like a beacon was the judgment in the K case awarding huge money for minor injury. A relatively large number of cases were then processed through the courts with several being heard each month.
The initial results from larger numbers of cases were disappointing. Apart from the welcome vindication of the Army's regime of hearing conservation since 1987, the line followed by the courts was that hearing handicap assessment systems would not be accepted and that the plaintiff's evidence on his own behalf, provided that it was endorsed in general terms by a medical practitioner acting for him, would be sufficient of itself to provide grounds for making an award of damages. The reason I have devoted so much time to this is to make it clear that the point at which it became clear to the Department that a huge number of cases would be successful and not thrown out by the courts was early 1997, some 15 months ago.
Faced with this scenario, the State adopted a policy of contesting liability in every case to the door of the court with a view to trying to shut the floodgates. Selected cases were then run with a view to encouraging a reduction in the quantum of compensation. Other cases were settled by negotiation. This policy has been subsequently followed by this Government. It was the correct policy when it was introduced and for the first half of 1997 when the Deputies opposite were in power. It will remain the correct policy until such time as we can take other measures to regulate the situation. The average quantum was reduced from £35,000 in 1996 to around £20,000 when all cases were adjourned in February this year.
The policy has been the subject of considerable criticism, all of it ill-conceived and some of it emanating from vested interests. It has been suggested that the State should concede liability to save money on legal costs. To paraphrase Ralph Waldo Emerson, that is about as sensible as stopping the clock to save time. I emphasise in the strongest terms that I share the view taken by the parties now in Opposition that a general concession of liability in the face of this difficult situation would have led to tens of thousands more claims being made.
However, it is equally clear that such a policy could only remain valid for a limited time and it has always been my ultimate objective to remove this problem from the courts on terms which would be fair to all sides. Clearly, given the huge number of claims in hand — some 10,500 at present — the courts are unable to cope. In the course of my recent appearance in the High Court it was claimed that at the present rate of processing it will take seventeen and half years to work through the cases in hand. This estimate makes no allowance for cases which are still being submitted. Clearly a simpler and more streamlined method must be adopted.
Any fast-track system established by me can only succeed if it pays out the same level of awards as a court. At present court awards are too high. It is also obvious that the rapid processing of a large number of claims requires an objective yardstick by which each can be judged. If the disability assessment system being underpinned by the Bill is accepted in the courts, it will be possible for me to establish a system which will remove the need for persons with a genuine hearing injury to institute court action. It will also be my intention to facilitate people who have already initiated a claim but who wish to transfer to a non-adversarial system. For this development to take place it is essential that the courts accept the hearing disability assessment system and, with equal importance, attach a fair and reasonable tariff of compensation to the varying disability levels. Provided these conditions are met the present phase of the problem can be brought to an end.
I accept without reservation that there are individuals who served in the Army who have a noise induced hearing loss. From the start I have made clear my commitment to see fair play for all who have a genuine claim. That said a situation where a large number of people receive some money simply because they served in the Army is unsustainable. While it has never been the State's contention that all of the claims are bogus, it is equally improbable that all of the 10,500 awaiting processing have equal merit, particularly following the wave of advertising by a minority of the legal profession and the incentive effect of certain early awards. Equally, an equitable system of adjudicating claims must recognise that, in the case of those who had relatively short service and left the Defence Forces many years ago, there is a serious question mark over the cause of any hearing loss they may have. Any viable solution to the problem of Army hearing loss claims must give substantial compensation to people with a serious injury. Equally, it must compensate those whose injury causes no real or significant handicap in a proportionate way.
I will now specifically address two legal aspects which arise from the Army hearing loss cases, namely, the question of the Department's liability for the injuries caused and the method by which the injuries are assessed in the courts. Regarding liability I note that, particularly in recent months, there has been a great deal of comment on the Department's policy of denying liability in all these cases. The argument has been made that if the Department admitted liability, or at a minimum negligence, significant costs could be saved on the day of the trial as an engineer or other experts would not have to be present to prove the damage that can be caused to hearing by gunfire. Much play has been made of the fact that as early as 1993 the Attorney General's office provided advice on the basis that it was preferable to concede liability in these cases and thus save on costs. Such advice was received at a time when a relatively small number of claims were being made. Legal advice is only one element of policy formation. As the size of the problem increased, it became apparent to my predecessors that such a course of admitting liability could not be contemplated. The main argument that can be made in this connection is that by conceding liability, or even negligence, a clear signal would be sent to serving and former personnel that the money was simply there for the taking. It would open the floodgates with enormous consequences for the taxpayer. This would happen in a context where I believe, as did my predecessors, the type of awards being made in court for this type of injury were too high. The policy, therefore, that the Department has consistently adopted, has been to fight all cases. I am fully aware of the short-term cost savings which might be effected by conceding liability. However, the reduction in quantum that has been achieved by the Department standing firm on this issue and fighting selected cases has justified my present policy and that of my predecessors.
As an aside, I will comment on the effect of the Civil Liability (Amendment) Act, 1991. This Act allows a plaintiff three years within which to sue from the date on which he or she discovers, or ought reasonably to have discovered, the fact, significance and causation of his or her injury. The introduction of this legislation was at the time seen as a very progressive move and I support its general tenor. However, in the case of my Department this legislation has rebounded in such a way as to facilitate the enormous volume of litigation that has come from hearing loss claimants. While clearly those who have suffered major injury that does not become apparent for a considerable number of years should have a right of redress, we must also find some way of balancing this with the rights of defendants. It is surely unfair that defendants should be faced with old claims where it is impossible to find evidence to mount a defence because of destruction of records, passage of time and the frailties of human memory.
In connection with the concept of conceding liability or negligence, there have been many calls for the establishment of some kind of board or tribunal to facilitate the payment of compensation without heavy legal expenses. In general I very much favour this approach. However, again like my predecessors, I feel it is premature to embark on such a course until the level of quantum of damages in the courts has been drastically reduced. It must be recalled that the current level of damages is in or around £20,000 per claim. If this sum of money were paid, even free of legal costs, to the 10,500 claimants already on the books, the taxpayer would be required to pay £210 million.
This and previous Governments have resisted this option, largely motivated by the fact that most claimants, in the context of industrial injuries tribunals in other countries, would receive little or no compensation for the minor level of injury they have incurred. While this may seem a harsh attitude, I have no doubt that Deputies on all sides of the House will appreciate that resources are scarce and should be spent in the most beneficial way for society at large. I do not wish to labour the point, but in the context of there being many worthy demands upon the Exchequer, we must stop and consider whether the expenditure of hundreds of millions of pounds on individuals who are suffering minimal or no handicap in their daily lives is justified.
Regarding the assessment of injury, I will deal with the issue of handicap or disability. Hearing is a sensation perceived in response to sound. It is not capable of being measured in absolute value but rather is calculated by comparative reference to the hearing levels of others. Individuals are tested on an audiogram by recording their response or ability to hear sounds of different frequencies played at different levels of intensity or volume. The degree to which an individual's hearing deviates from the norm, established by patterns of a large sample group of the population as a whole, measures the extent to which hearing is deficient. It is possible to have good hearing at relatively low conversational frequencies with impaired hearing at higher frequencies. It is also a fact that as age increases, the ability to hear very high pitched sound decreases. Other factors can affect hearing, including illness such as an ear infection, and a noisy environment. Lifestyle, such as motor bike riding or attendance at discos, can also produce a hearing loss, particularly when exposure is over a prolonged period. Noise induced hearing loss usually manifests itself in a loss of high tone hearing. Such a person may, however, be able to hear sounds that arise in normal conversation quite adequately at the lower frequencies. A loss of hearing in the high reaches of the medium area can result in an inability to distinguish conversation against a degree of background noise such as found in a crowded room.
The question which must be considered, and which is crucial to this debate, is the degree to which a hearing loss at higher frequencies, such as that which may be caused by gunfire, impinges on an individual's daily life and affects his or her ability to understand conversation or to have a normal relationship with family, work colleagues and neighbours. The Department has been of the view, throughout this controversy, that the type of injury incurred by the majority of plaintiffs in these cases is of a relatively minor nature and does not impact seriously on their ability to understand conversation in a normal context.
This is not just a matter for the Department of Defence to decide. In this connection the advice of leading experts has been obtained. Deputies will be familiar with the fact that the Americans and the British have systems of translating hearing loss into a percentage handicap. Those systems have not been accepted in the Irish courts and a controversy has ensued as to the relevance of such formulae in assessing the relevant injury. In B's case, which was one of the early cases before the courts, the High Court held that the appropriate way to assess the injury was to have regard to the extent of the hearing loss and the way in which this affected the individual's everyday activities. This reasoning has been adopted by the High Court and the Circuit Court in dealing with all the cases that have come before them. As recently as the Gardiner case, heard in the High Court in March 1998, this jurisprudence has been approved and followed.
In the course of cases heard before the courts, there has been repeated judicial comment on the absence of an agreed Irish standard for assessing hearing loss. In the absence of this agreed standard, there has been occasional reference to Army regulations which deal with the medical categorisation of personnel. This has been, I respectfully suggest, a mistake. The Army medical regulations are designed primarily as a categorisation to establish capability and, in the case of hearing, the protective measures that are necessary. Army hearing regulations are based on European Union worker protection legislation and include measurement at frequencies of 6,000 hertz and 8,000 hertz. These two frequencies are included to provide an early warning system so that employers can identify employees who have early hearing loss and provide appropriate types of hearing protection for them. The Army regulations, and the Irish health and safety legislation upon which they are based, were never intended as a system of assessing the handicap or disability which may arise in an individual as a result of hearing loss. All the relevant authorities are clear on this point. This has been emphasised in the Department of Health and Children report and by the Health and Safety Authority.
In view of comments on the absence of an Irish system or standard for assessing hearing handicap or disability, the Department of Health and Children was requested at the end of August 1997 to assemble a group of experts and ask them to develop such a system. The group reported to the Minister for Health and Children at the beginning of April 1998. The green book or the hearing disability assessment is now available, having been published on 9 April. There has been comment in the High Court on the absence of an Irish standard for assessing hearing disability. The purpose of this Bill is to address this gap and to end confusion in relation to the American and British systems by providing one which has been developed by Irish experts.
Section 1 defines hearing injury as including hearing loss and tinnitus. Tinnitus is an injury which involves noise in the ears which can be frequent or intermittent, loud or very quiet. Section 2 provides that the provisions of the Act shall apply to all proceedings at present before the courts. Section 3, one of the key sections, provides that judicial notice shall be taken of the report in all proceedings before a court where damages are claimed for a personal injury arising from an injury to hearing. Section 4(1) provides that where a court is assessing the extent of personal injury arising from hearing loss, it shall have regard to the formula contained in the report. Section 4(2) provides that where a court is assessing the extent of a tinnitus injury, it shall have regard to the classification method for tinnitus contained in the report. I have been advised by the Attorney General that, because of the approach adopted in the Bill, effectively making its adoption by the courts a voluntary one, there are no constitutional difficulties with the Bill.
If it is the case that, as a consequence of this report and the Bill before us, the level of quantum in Army hearing loss cases falls to a reasonable level, I will waste no time in developing a compensation mechanism which will provide a fair and speedy solution for those who have suffered a significant hearing loss. I will do this without further recourse to the courts and in doing so will effect the savings in legal costs to which I referred earlier and remove a huge volume of litigation from the courts which I accept is threatening to overwhelm the personal injuries system there. If the quantum does not fall to what the Government would consider a reasonable level, a further examination of this problem will continue with a view to ensuring the interests of the taxpayer and of those who are in dire need of scarce resources are protected. I commend the Bill to the House.
