Deputy Fitzgerald was in possession and 26 minutes of her time remains.
Private Members' Business. - Civil Liability (Assessment of Hearing Injury) Bill, 1998: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time. "
I propose to share time with Deputy Stanton.
Acting Chairman
Is that agreed? Agreed.
Whatever we may wish to assume, we cannot dismiss the claimants. Leaving aside the Irish case there is adequate global evidence of hearing disability being caused in the manner which some claimants are describing. Our problem is not the claimants, it is the absence of an effective and fair system of assessing the state of each claim against accepted measurement of disability. That the State failed for a long period to put in place such a system is not the fault of claimants. Were such a system in place, those claims which would not stand up to scrutiny would fall and only the genuine claimants with real disability would receive compensation.
We cannot rely on a strategy that aims to convince the public that a large percentage of these claims are false or questionable. Neither can we rely on a strategy that may be designed, directly or indirectly, to indicate to the Judiciary that it should reduce compensation or dismiss cases.
The absence of facts in identifying or quantifying the level of real cases of hearing disability, as opposed to hearing loss, which is a result of service in the Defence Forces means we are simply guessing on many occasions. The guesswork relies on the assumption that many of these claims are at worst false or at best an exaggeration. The lack of an agreed standard has made this difficult to quantify. I welcome the work of the expert group in this regard. It has also apparently meant that in a certain percentage of cases — the Minister referred to a number of individual cases — those with low levels or, perhaps, no level of disability have received compensation. This is contrary to what would happen in other jurisdictions. It has become an easy option to point to the development of a compensation culture in Ireland and to the relatively high level of claims. However, we must inquire into the origin of the message that claiming compensation for everything is acceptable. Going down this route we come to a much wider failure of our society to inculcate respect for the community and the nation at every level. We have not legislated in this area and a report, to which I will refer later, has suggested some parameters or different methods which might be used in dealing with claims. Consideration must be given to this issue.
This issue must be approached on the basis that claims may be valid and, at the very least, that claimants have a right to make their claim, while at the same time ensuring that the system is rigorous, fair and clear. Those initiating claims should make a judgment as to whether their circumstances warrant an assessment for compensation. The same is surely true of lawyers who are currently able to advise their clients and potential clients in a virtual vacuum. They did not create that vacuum so there is little point in blaming those messengers for the situation in which we find ourselves. However, I condemn excessive advertising by solicitors on this issue. If there was a proper framework there would not be the considerable space which has been allowed to develop in which a very wide range of cases can expect to be taken successfully.
This is not the first occasion on which this House has left it to the courts to arrive at decisions. At times it has suited that this should be the case, particularly when legislators have found it uncomfortable to address certain issues. However, to castigate members of the Judiciary for making judgments based on what is stated in law and what they see before them is akin to shooting the messenger.
With regard to legal tactics, cases are defended in large numbers to the steps of the courts where settlements are made without admitting liability and with the attendant legal costs. I believe I am correct in stating that no case has been appealed on to the Supreme Court. This raises the question of whether the AMA test and standard should have been appealed to that court. I am aware appeal proceedings were entered into in one case but it was withdrawn when agreement was reached. Has the AMA standard been tested at Supreme Court level? I do not believe it has. The argument has been made that this is the best course of action because court decisions are unpredictable. However, this makes a mockery of our insistence that there is no liability. There may be a fine legal point here but to the people the money is being paid and the effect is the same. I question whether the legal strategy on this simple and practical matter is having an impact on those issues with which we are concerned.
Have the cases settled given us any clear pattern in terms of the range of seriousness involved? I respect the context in which the Minister quoted a number of individual cases earlier in the debate. However, the vast majority of cases — 1,431 according to the Minister on 22 April — have been settled without court hearings. In terms of a pattern, the answer based on this evidence is "no". Could the State be said to have played directly into the hands of those who may be pursuing untenable claims by ensuring that in so many cases the judicial test is not applied? There is a sensible and pragmatic way of dealing with the situation and, in doing so, of attempting to ensure that we do not face a similar shambles in the future.
We must begin by addressing the issue and not denying it. Stereotyping the claimants, their lawyers and the courts is a waste of energy. There are, without doubt, people who have served in the Defence Forces who have suffered hearing disability as a result of that service. Equally, we have a huge quantum of claims, some opportunistic, some unfounded.
The Government must clearly state that it intends to provide leadership which is fair, balancing the rights of individuals who have suffered a disability with the right of the nation as a whole. I have no doubt that the people would accept a fair assessment system, with clear guidelines matching payment levels with the seriousness of the disability, as long as that system was seen to protect their rights. They would back an administrative system of dealing with such compensation claims as long as it was not introduced primarily to give the State the upper hand. However, I accept that a difficult hill remains to be climbed. I also accept that the Minister is operating in a complex situation trying to find a direction which will prove effective.
This Bill may or may not be effective. I have a number of concerns regarding its constitutionality and its capacity to have the desired effect should it prove constitutional. My concern relates to the separation of authority and powers of the Executive and the Judiciary. The Bill has been carefully drafted but it raises the question as to whether the nature of the direction it contains could be deemed to respect that principle. Equally, there is the matter of the courts applying such legislation to claims which are already in train. It remains to be seen whether this is constitutional
Going beyond the constitutionality issue, there is then the question of the language in the Bill. What precisely will the phrase in section 3 "Judicial notice shall be taken of the Report" be deemed to mean, or in section 4 "the Courts shall, in determining the extent of the injuries suffered, have regard to Chapter 7"? How will the term "have regard" be interpreted? If it is not interpreted to the satisfaction of the State, will decisions be appealed on this point of law? Will the courts be bound to "have regard"? Could some judges "have regard" while others ignore the legislation? Even with cases entered after the enactment of this legislation, will judges be bound by the Bill's provisions? A number of the potential steps to be taken beyond this legislation are not clear.
Assuming the House passes the Bill, it will go to the President who may exercise her right to refer it to the Supreme Court. If she does and it fails the test, we are back to square one. If she does not, then there is always the potential for a challenge from a claimant, when the Bill may fall. Whether with reference from the President or through a challenge from a claimant, if the Bill is found to be constitutional we will then move to the next test in the courts, namely, how will it be applied by the Judiciary. Since there is still no connection between levels of disability and compensation, we may or may not see a reduction in compensation awarded and therefore in the cost to the State. If the judges do not apply it, or apply it with reference to a scale which the State considers still to be too generous, then little or nothing will have changed.
The impact of this Bill is unreliable and, even if it is applied, it may or may not reduce the costs involved. All the claims may be found to be genuine, but in the likely event that the guidelines in the Bill apply and eliminate those which are untenable or fall below the threshold, we are still none the wiser as to the impact on the bottom line. We are still operating speculatively — guessing that this percentage or that may not be successful — but totally unaware of the numbers likely to fall into this category or the range of seriousness of those which remain.
In many ways the Bill represents a mere tinkering at the edges of a serious problem. It is an absolute disappointment for those who would look for a radical solution to a serious problem of public policy. It may be unconstitutional, it is minimalist and, given the Minister's expressed concerns, seriously so. It may, depending on the response in the courts, put some perimeters around tariffs for different levels of disability. In effect, the Minister is attempting to adjust the speed of the windscreen wipers as the car drives over the cliff, such is the scale, according to himself, of this problem.
The Deputy would not even have had a car. At least I have the car.
Has the Minister considered more radical solutions? For example, what consideration has been given to substituting hearing disability pensions for awards in the civil courts and introducing legislation for this? A system of disability pensions could have the following advantages: it would take the whole compensation system for Army hearing loss out of the courts and eliminate most, if not all, of the legal fees; it would allow the expert report which is at the heart of this Bill to be used as a tariff, not merely as some sort of guide which has to be taken notice of in some uncertain way; it could form the basis for a clear and fair tariff of hearing disability pensions which could be administered by officials with the sort of experience that exists in the Department of Social, Community and Family Affairs; and specialised staff in the Department of Defence could be trained. Such a system would have the advantage of removing the attraction of large lump sums and would have the effect of spreading the burden of payment over a longer period.
What consideration has been given to such a scheme? What would be the disadvantages of it? It would not be in replacement of the right to sue. If personnel wished to sue they could do so, but the pensions would have to be taken into account. The scheme would introduce a certainty because there is a tariff. It would use existing Civil Service expertise and experience and would reduce legal costs immensely.
We need a reformed Army Pensions Board and a State claims agency to ensure the more efficient and rational management of claims taken against the State. This is a huge problem facing this country at a time when we are subject to EMU and Maastricht guidelines and when we need to carefully manage the economy. It has the potential to interfere totally with that management. The volume of potential as well as current claims is an issue. As the Minister said this evening, even at a conservative estimate we are talking about a large amount of money. It is impossible to predict the numbers of actual cases which will come before the courts in the years ahead. How many of the 150,000 potential claimants will actually claim? There is also the possibility of claims coming in from State employees in other sectors. The potential is enormous.
I do not have time to detail the number of factors which have come together to create this situation but they range from the fact that there is no system in the Army of compensation for injury. Advice was circulated widely in the Defence Forces that there was no case to answer. The Minister stated that was at an early stage and that liability should be conceded, and I accept that. Another factor was the lack of a hearing disability assessment test, which has now been remedied. Other factors include the Statute of Limitations and the enactment of the new safety legislation.
I want to refer to the hearing disability assessment report. This is a relatively conventional report which questions the point at which one regards a degree of loss as a disability and sets out parameters. Obviously the report does not deal with causation.
Putting this hearing disability assessment into legislation is an exceptional measure for an extraordinary situation. It is an attempt to ask the courts to have regard to a particular hearing standard with the expectation that a scale of compensation will then be developed for hearing loss. It appears to be well grounded on mainstream scientific analysis.
I agree with the Minister that this is a reasonable report. I do not believe it is designed to knock people out of the system but as a reasonable standard to assess hearing disability. The report also takes age and tinnitus into account.
Mr. Justice Johnson in judgments on 13 March and 21 April l998 stated:
If the legislature wished the Courts to accept any specific standard, then it is for the legislature to legislate to that end. It is not for the Courts to make Law, it is for the Courts to interpret Law..
In the particular case to which he referred, Mr. Justice Johnson also noted that no stay was asked for in the High Court or in the Supreme Court. In his second judgment, Mr. Justice Johnson pointed out the difficulty of the lack of an agreed standard and highlighted the fact that expert witnesses can still be found who would disagree with the standard, if it existed.
There is a series of Supreme Court decisions dealing with the judicial process and the separation of powers, the most famous of which is Buckley v. the Attorney General, often called the Sinn Féin case. In that case the Oireachtas was not allowed to pass legislation while a case was before the courts. The opinion given at the time stated: “In our opinion this is clearly repugnant to the provisions of the Constitution, as being an unwarrantable interference by the Oireachtas with the operations of the courts in a purely judicial domain”. This principle was also examined in a number of other cases, including Deaton v. the Attorney General and de Vito v. the State.
I referred earlier to the group established by the Government in l996 to develop a personal injuries tribunal which made a number of suggestions. The majority of the working party recommended the establishment of a court-based occupational injuries mediation service. What further developments have there been in that regard?
This legislation is unusual. It is an attempt to deal with a complex problem. Fine Gael will support the legislation despite the fact that we have some problems with it. We need to establish a system that is fair to the claimants, clear and rigorous. The sooner the better we put in place that type of system because it will enable us to move forward. The legislation may be found to be unconstitutional but, even if it goes ahead, it is not necessarily the answer to this complex problem.
I commend the Minister on making the effort to bring forward this legislation. We are all concerned about this problem and the cost to the Exchequer. As Deputy Fitzgerald pointed out, we are also concerned about the impact on morale in the Defence Forces. Having had discussions with members of the Defence Forces, I am aware that morale is currently quite low. I caution against scapegoating members of the Defence Forces on this issue.
I want to raise an issue which I have raised on a number of occasions in the past. We are debating this Bill tonight because of a certain degree of negligence on the part of the State. Proper hearing protection was not provided. As the Minister said earlier, we are talking about a different time when perhaps people did not know any better. I have had first hand experience of people who were told to remove hearing protection on firing ranges because they had not been issued with it. Currently, members of An Forsa Cosanta Áitiúil and An Slua Muirí are not issued with personal hearing protection. They are expected to share the ear defenders among themselves.
We could soon be back in this House discussing liability arising from a problem which is being experienced now. Picture the situation where somebody is on the ranges, perspiring, and wearing an ear defender. When he is finished he takes it off and throws it into a box. It should be cleaned, but is not because cleaning swabs are not available. Personnel are meant to wear a type of protective device or sheet between the ear and the ear defender. That does not happen either. Where will we stand if a member of An Forsa Cosanta Áitiúil gets an ear infection because of this? I ask the Minister to ensure that all members of An Forsa Cosanta Áitiúil and An Slua Muirí are issued with personal ear defenders forthwith. It is not good enough that members have to share them. Surely we have learned something from what went on in the past.
The Minister may have been told that these items are issued to personnel, but I made inquiries and was told otherwise. Personnel in these organisations have not seen these items. To ensure that we do not repeat the mistakes of the past we should ensure that the members of the FCA and An Slua Muirí are issued with proper ear defenders. There is another type of ear defender, for use with heavy weapons, and members of the FCA should be issued with them.
What arrangements are there to look after a member of the FCA who has been injured, and is perhaps out of work as a result? Perhaps the Minister will address that issue in his reply. My information is that if members of the FCA or An Slua Muirí are hurt and hospitalised, it is their tough luck. They are not looked after. In the context of this debate the Minister might take this on board because it is an important issue and it has been neglected for quite a while.
I beg the forgiveness of the House for digressing from the subject of the debate, the Civil Liability (Assessment of Hearing Injury) Bill, 1998, but what I am saying is relevant. I want to avoid the possibility of us having to come back here before long to discuss the question of serious ear infections because of the lack of proper ear defenders. Compared to the overall budget the amount of money involved in issuing proper ear defenders to all members of the Defence Forces would be extremely small, but we are talking about hundreds of millions, if not billions of pounds, on the one hand while on the other we are penny-pinching. It does not make sense.
I have a difficulty with the Civil Liability (Assessment of Hearing Injury) Bill, 1998 in that it may be unconstitutional. How will cases before the courts at the moment be dealt with? Will they be allowed to proceed? Will this Bill apply only to injuries incurred from now on or will it have retrospective effect? Are the rules now being changed in respect of somebody who was injured ten, 15 or 20 years ago? It is a question on which we need to reflect.
I wish to share my time with Deputies De Rossa and Timmins.
Is that agreed? Agreed.
The Bill before the House deals with an issue that has caused grave concern within the Defence Forces and throughout the wider community. Army deafness and the subsequent compensation claims before the courts are an important issue for all our citizens. There is genuine concern among PAYE taxpayers over the total cost of these claims to the Exchequer. People are also concerned that some of the claims before the courts are opportunistic and that the absence of a common standard for hearing loss is rewarding dubious claimants. These opinions have been to the fore in the public debate regarding Army deafness claims.
There is another aspect of this saga which is of equal seriousness, the effect on the morale of our armed forces engendered by the public debate on Army deafness claims. Since the foundation of the State our Defence Forces have earned and enjoyed the respect of citizens. They have a proud role in protecting the nation's vital interests and in contributing to peacekeeping missions across the globe. However, in the current climate this history of service and sacrifice of our Defence Forces has been largely forgotten. The near constant abuse that members of the Defence Forces have endured from some sources is having a devastating effect on morale within the force. This is extremely serious and it is imperative that the Minister addresses this issue and outlines the steps he is taking to rectify the situation.
At the outset of any debate on the current cases before the courts, it is necessary to state the origins of the controversy. For decades Defence Forces personnel in this State were sent on firing ranges without ear protection. This practice was continued even when the Department was made aware of the health risks associated with it. As a result of this negligence many members of the Defence Forces suffered severe damage to their hearing. They have a right to seek recompense for this damage to their health. They should not be ridiculed for doing so and they deserve the same protection and right of recourse to the law as any other workers who believe that their employer has been negligent or unnecessarily placed their health at risk. This fundamental point has often been lost in the tumult of concern expressed at the exposure of the State to the totality of claims, and it needs to be restated.
There is no doubt that the actions, or more properly the inaction, of the State over many decades has resulted in serious hearing loss to thousands of former and serving members of the Defence Forces. There is no getting away from this basic fact. We cannot wish away the reality that the State has an obligation to compensate these persons for the suffering they have endured. We cannot wish away the fact that thousands of people genuinely suffered significant hearing loss due to the failings of the State. Nor can we wish away the fact that the eventual cost to the State of the actions currently before the courts will be substantial, regardless of the standards established in the Green Book. In a report in The Irish Times on 10 April it was estimated that even if the standards proposed in the Green Book were accepted by the court without exception 70 per cent of cases would still go through for a full hearing and the bill for public expenditure would still remain at between £1.5 billion and £2 billion. This is the legacy of past negligence by the State and, enormous though the cost implications are, it must be accepted as a bottom line in this debate.
Just as there is a duty on the State to compensate people for genuine damage suffered through negligence, there is also a duty on the State to prevent bogus claimants from winning awards due to the complexity of the scientific evidence regarding hearing loss. This is what the Green Book attempted to do and what the Bill seeks to address.
In principle, the Labour Party welcomes the publication of a Bill that attempts to establish an independent standard to assess hearing loss. The absence of such a standard has been central to the current controversy. However, there are issues of concern in the Bill which I hope the Minister will clarify during the course of the debate. It is particularly important that the Minister responds as fully as possible to the questions raised by all speakers in this debate due to the speed with which this legislation has been introduced and the speed with which it is proposed to pass it through the Oireachtas.
The Bill applies to all court proceedings, whether commenced before or after its enactment, and it is not confined to the Army cases. Section 3 provides that, in all hearing injury cases, judicial notice shall be taken of the report of the expert hearing group contained in the Green Book. Judicial notice is a means by which a matter can be received in evidence without formal proof.
The report can simply be handed into court without the need to call its authors to give sworn evidence that they wrote it and that it contains their opinions. Section 4 provides that, in determining the extent of hearing injury, a court shall "have regard" to chapter 7. The effect of the two sections is to create a specific exemption to the general rule governing the admissibility of evidence from experts, such as the authors of the Green Book. While the section changes the rule which would otherwise govern admissibility, it does not ordain the weight to be given to the report when admitted in evidence.
Lay witnesses must, generally speaking, give evidence only as to the facts which they have observed and not of the inferences which they have drawn from such facts. However, the opinions as distinct from the factual observations of expert witnesses are admissible when the person giving the opinion has a particular expertise or experience in the relevant area based on a special study of day to day experience. The burden of proof with regard to the expertise of an expert witness rests on the person tendering evidence. The witness must give evidence under oath, establish his or her credentials and be available for cross examination by the other side. The Bill abolishes the need to comply with each of these requirements. However, a court is not compelled to accept as binding the conclusions of the report: it must merely have regard to it. This is in essence the import of the Bill.
A number of questions arise which need clarification. Section 2 of the Bill refers to proceedings before a court, whether commenced before or after the enactment of this Bill. In my experience it is extremely unusual for legislation to be enacted which impinges on cases that have already commenced. It also raises the prospect that this legislation may come before the Supreme Court to test its constitutionality. Will the Minister outline the legal advice he has received on this specific matter and give precedents whereby legislation enacted by the Oireachtas impinged on cases already commenced in the courts?
The key element of the Bill hinges on the principle of judicial notice. It is important to note that the legislation does not require the court to accept the Green Book as the only reliable assessment of hearing loss. Judicial notice will only ensure that the findings of the Green Book can be treated as evidence. As such they can be challenged by claimants in court and it is also highly likely that the report will be challenged by the plaintiffs. There will in all likelihood be a test case in which the authors of the report will give evidence on behalf of the State and the courts will then decide the status and weight the report shall have in relation to all cases.
This begs the question as to whether this legislation is necessary in the first place. Surely the Green Book findings could be presented by the State's defence in any case and it does not take an Act of the Oireachtas to require the court to consider this evidence. If there was no legislation, the State would still seek to rely on the new assessment system. The authors would give evidence on its behalf and a test case would be decided. All subsequent cases would be determined on similar lines because, even though plaintiffs could notionally object to evidence being admitted without formal proof, they would in all likelihood be punished for incurring unnecessary costs.
In light of this it is difficult to see what can be claimed on behalf of the Bill. The question arises as to whether the Minister is introducing the legislation merely for the sake of being seen to do something regarding the cases before the courts. Will the Minister explain the advice he received from the Attorney General regarding the necessity for the Bill? Is it not the case that the future legal import of the Green Book does not require legislation; that a test case of the accuracy or otherwise of the findings of the Green Book will be clarified by the courts and that this would be the case without the passage of legislation?
There is also a specific aspect of the Green Book report that I would like the Minister to clarify, especially as it is included in Part 1 of the Schedule to the Bill, namely, the fact that the air conduction hearing threshold levels are not taken at the 3,000 hertz level. By deleting the 3,000 hertz level there is a clear imbalance in the assessment levels and it is important to note that the original Defence Forces regulations issued by the then Minister, Deputy Andrews, in October 1997 included the assessment at the 3,000 hertz level. Will the Minister explain why this level was not included in the Green Book and indicate if he is open to accepting amendments to the Bill which would restore it?
It is important to state that this Bill will not of itself resolve the problems that have entangled the Army deafness hearings. Indeed there is a legitimate question as to whether the Bill is necessary as the final decision of the weight to be attached to the Green Book findings will be clarified by the courts.
However, I accept the bona fides of the Minister in his attempt to resolve the matter and, while I have reservations regarding the manner in which he approached his recent High Court hearing when seeking an adjournment of cases before the courts, I wish him well in his endeavours.
The Army deafness cases have produced much comment in the media. Many people are outraged at the total sum of money that the State may be required to pay out. It is right that the State should attempt to limit its exposure to those who have been genuinely injured or impaired by their time in the armed forces. The Labour Party supports the Government in this regard. However, the reality is that, regardless of what standard of hearing loss is accepted, there was gross negligence in the past. This negligence has affected thousands of Defence Forces members and they, in common with every other citizen, have a right to seek recompense for the pain and suffering they endure. The eventual cost to the State will be substantial.
In the face of these facts we must move to end the cloud of suspicion that has hung over many members of the Defence Forces. We have produced the Green Book, the courts will establish the weight to be attached to it and genuine cases will proceed on this basis. Bogus claims must be rooted out and dismissed. However, the real blame for this ongoing saga does not rest with individual members of the Defence Forces but, ultimately, with the State for failing in its duty to protect the health of its employees in the past.
Health and safety of employees has for too long been treated as a second class issue by some employers, including, as evidenced in the Army deafness cases, the State. This culture must be changed and we have made some progress in this matter over recent years. However, the tragic death some months ago of a young man on a Dublin building site points to the vital importance of the effective enforcement of our health and safety legislation and the urgent need for more resources to be provided for the Health and Safety Authority to enforce legislation and inform workers of the protection afforded them under it. These are the long-term lessons to be learned from the Army deafness saga.
After guiding the Bill through the House the matter will again be in the hands of the courts. The most urgent task facing the Minister then will be to restore morale within the Defence Forces. It is an institution that has been greatly undermined over the recent past. Some individual members of the force bear partial responsibility for this. However, the entire membership of the Defence Forces has been unjustly subject to unbalanced criticism and ridicule. This has had a serious effect on the public image of the Defence Forces and the Minister has responsibility for redressing the balance, something he must do at the earliest opportunity.
I thank the Deputy for the speed with which he delivered his contribution — I could have avoided much surgery on my own speech. I propose to allow time for Deputy Timmins.
This legislation is the latest instalment in a saga which has reflected little credit on any of those involved. Senior Army officers who failed to ensure proper procedures were in place to protect the health and safety of its personnel, successive Ministers for Defence who failed to take action and allowed the drift to continue, a minority of military personnel who saw an opportunity to milk the system and greedy lawyers who saw the prospect of fat legal fees must all share the blame for the financial and legal morass of the Army deafness issue. The only ones deserving our sympathy are those soldiers who suffer genuine hearing loss as a result of negligence and whose health and social lives have suffered as a result.
The entire saga has been bad for morale among the Defence Forces, with soldiers, the vast majority of whom have served at home and overseas with courage, honour and distinction, becoming the subject of cheap jokes and jibes from not very funny comedians. We are left with an appalling, expensive and demoralising mess for which nobody has been called to account. Nobody at political, official or military level has been called to account for negligence or incompetence in landing the taxpayer and the Defence Forces in this mess.
There is little doubt the Defence Forces and the Department of Defence were negligent in not ensuring their own limited regulations concerning ear protection were adhered to. At different times cotton wool, cotton wool with vaseline and hard ear plugs were provided. According to the Public Accounts Committee, over £500,000 was spent by the Department of Defence on ear protection since 1972. As far back as 1952 the medical evidence associating repeated weapon use with hearing damage was well known to the Department. Regulations were issued by the Defence Forces at different times, but they have been largely ignored. Who was responsible for ensuring that the Defence Forces exercised a reasonable duty of care for the people for whom they were responsible? Since taking office the Minister for Defence has adopted a very macho approach to the whole problem, depicting himself as some sort of administrative Rambo who will rescue the taxpayer being held to ransom by greedy and opportunistic soldiers. So far, however, we have seen little evidence of results from this posturing. The Minister's attempt to have all the cases deferred until the autumn has been rebuffed by the High Court and the cases will start being heard again shortly.
The Bill is the latest attempt at damage limitation. Given that measuring hearing loss is a very difficult and complex matter, not easily understood by people other than members of the medical profession specialising in this area, and given that there was no standard assessment in this country for measuring hearing loss, it was not unreasonable for the Minister to establish a working group of experts to devise such a system of assessment. That working group has produced a report and I do not consider it unreasonable that the courts should be asked to take notice of its findings in considering claims before the courts. The Bill obliges the courts only to take notice or have regard to, not necessarily accept, the report. Neither, as I read the Bill, is there anything to stop the court from taking other reports or standards into account.
However, I am concerned that the Bill applies not just to future cases but also to proceedings commenced prior to its enactment. This seems to be a departure from the legal norm and must surely raise serious questions about the constitutionality of the measure. It is virtually certain that the Bill will face legal challenge in the courts and it will be the Judiciary who will determine whether it conforms with the Constitution. The courts have been vigorous in defending their constitutional independence and it would be a brave person who would forecast that this provision will be found to be constitutional.
The right of any person to go to the courts to seek compensation where he or she believes they have suffered personal injury as a result of negligence on the part of their employer is a fundamental principle of our law and one which should not be interfered with. Soldiers are citizens and they are entitled to the same degree of protection and care from their employer as any other person. They are entitled to the same access to the courts as any other citizen. Whatever about the past, we must make sure that such unnecessary risk to the health and safety of our soldiers never happens again. In this regard the continued refusal of the Minister to allow the Organisation of Working Time Act, 1997 to apply to members of the Defence Forces is particularly inexplicable. The last annual conference of PDFORRA was told of Army drivers falling asleep at the wheels of lorries because of the long hours they are asked to work. Even if, for legal reasons, it is difficult to formally apply the Act's provisions to the Defence Forces, surely there could be a policy decision that it would be applied voluntarily and by Army regulations.
I thank Deputies Wall and De Rossa for sharing time with me. When I was a child I was often told about the great Fianna Fáil organisation. I see proof of this this evening with the Minister of State, Deputy O'Dea, on the Front Bench ready to speak on this subject as he tries to reclaim the postal vote in the Limerick East constituency. I note his tactical ploy. I also note Deputy Collins is present in case the virus spreads out west.
This country does not have a long established military tradition. One is most unlikely to find a roll of honour in any vaguely public place of members of the Defence Forces who were killed in the course of duty or otherwise at home or abroad. Virtually all such remembrances refer to Irish people who served with the British forces in the Boer War and in the First and Second World Wars which are generally to be found on the internal walls of churches. It is strange, and rather sad, that more Irish wolfhounds, who played the role of mascot to various British regiments, have been acknowledged with a small monument than members of the Defence Forces who were killed in action. While such acknowledgment gives no great consolation, it certainly poses a question as to why this is the case.
The initial brutal birth of our Army was finally laid to rest with the changeover of Government in 1932 as the force became an institution of the State that was above reproach. Yet in the 1940s and early 1950s most young Galway girls, when walking along Shop Street in the city on a Sunday afternoon, opted for Moon's side of the street lest they would have to meet soldiers who, having walked along the railway line from Renmore, remained on the Skeffington Arms side of the street as they headed down to the west end.
Up to the early 1970s a serving soldier who managed to recruit a new member was rewarded with a sum of £5. Prison or the army was an often used judicial cry as enlistment in the force was once viewed as today's equivalent of community service. It is said that in the initial days of service in the Congo, the heat was so intense and the troops were so ill-equipped in their bulls-wool uniforms that they occasionally wore pyjamas during the day.
We have come a long way since then and despite the neglect of several Governments over many decades our Defence Forces have carved out a niche for themselves which has earned the respect of all other nations who have served with them. This status was not gained by exposing others to an arsenal of equipment and technology. That was impossible due to a lack of resources. Rather it was built around personal qualities and an education and training system that ensured our officers, NCOs and men could compete with other nationalities in any task they were given.
It is worth noting that the graveside guard of honour at John F Kennedy's funeral was supplied by Irish cadets under the command of the then Lieutenant Frank Colclough. In the area of United Nations service we supplied force commanders in Cyprus, Lebanon and currently an Irish general is the force commander with UNDOF in the Golan Heights.
Irish officers and NCOs regularly attend courses in the US and Great Britain and to date they have a proud record of achievement. Since the Niemba ambush the Defence Forces have slowly gained a place in the hearts of the nation. This was reflected by the intense competition that developed throughout the 1980s to obtain entry into the Army, Air Corps and Naval Service. Today, however, the Army stands at a crossroads, as many commentators ask if it is a luxury we cannot afford. This discussion has come about due to the phenomenon that is called "Army deafness". One has only to glance at the letter pages of the daily newspapers to note the anger, disagreement and sadness, not only among the public but also among former and serving members of the forces as they try to grapple with the rights and wrongs of the matter.
While the soldier in his pyjamas in the Congo was representative of Irish society in the 1960s, the development of the compensation culture in today's Defence Forces is a reflection of today's society. Given the same set of circumstances, who could say what course any individual or group might take? To date we have only the one example and its scale must give cause for serious concern. At a cursory glance, how can one justify an apparently healthy soldier getting a large sum of money from the State as compensation for an ailment of which he or she may not have been aware when there are long hospital waiting lists and school children may be denied the services of a remedial teacher?
The deafness question has certainly paralysed the Defence Forces. However, various Governments have neglected their well-being over a long period and only in recent years has a serious effort been made to address the many problems that were clearly visible. Is it not ironic that resources had to be allocated to upgrade the accommodation at Spike Island before the Department of Justice would permit prisoners to be housed there? It was good enough for the Naval Service but not for criminals.
Several studies of the Defence Forces have been carried out in recent years. The most recent, the Price Waterhouse report, made several recommendations and even though legislation was promised in 1997 to implement them, we have not seen sight of it to date. There is concern that, rather than take the lead on the issue, the Minister is letting it drift. Many commentators have cast the easy gibe in the direction of the Defence Forces without seeking to analyse the problem. Many members of the force who have never even contemplated initiating proceedings have been portrayed as figures of ridicule. This is particularly disturbing when it comes from people who hold recognised and responsible positions.
In recent times the problem has spiralled out of control. The reasons for this include the aggressive advertising by the legal profession, the relative ease with which some claimants appear to have received an award and the lack of any recognised hearing disability assessment system. The Minister is seeking to address the latter and I welcome the legislation he has brought before the House.
The expert group is also to be complimented. Deputy Fitzgerald referred to the difficulties which may arise in regard to the legislation and I will not go over that ground again.
This dilemma should serve as a lesson to us all; what other nightmares are staring us in the face? What potential areas of disaster will have to be addressed in the future? Has the time come when, like some of our counterparts in the private sector, we are required to allocate responsibility for dealing with the future rather than the present to a section of Government? Perhaps a small group of futurologists might be a good investment.
There has been a great deal of ill informed comment on this matter. The Minister, in outlining a chronology of events, mentioned the years 1952, 1977 and 1987. Mr. Dermot Gleeson headed the commission set up in 1989 which reported in 1990. It was the first such commission set up since the foundation of the State and the Defence Forces, its objective being to address the issue of pay and conditions in the forces. The commission published a document more than 300 pages long in July 1990 but, to the best of my knowledge, it did not refer to health and safety or hearing problems in spite of the fact that the commission received 215 written submissions, held a total of 18 oral hearings and met approximately 3,000 members of the Defence Forces.
I wish to share time with Deputy Collins.
Is that agreed? Agreed.
I fully subscribe to the idea that someone who sustains an injury through someone else's negligence is entitled to seek and get compensation. However, I have long argued that our system of determining liability and assessing damages is fundamentally flawed. The problem which this emergency legislation is being introduced to address is merely a symptom of that larger problem.
To date, this problem has cost the taxpayer in excess of £45 million. That money could have been spent on reducing hospital waiting lists, improving the condition of substandard primary schools or a range of other areas which would have been immensely more socially and economically advantageous to the taxpayer.
The Minister, humbly and charitably, did not refer to the record of the previous Administration, nor did he compare it with his own. I am doing my best to emulate him but, having listened to Deputy De Rossa's comments, I am bound to say that if the previous Government, of which Deputy De Rossa was a joint leader, had displayed a little less indolence, hand wringing, navel gazing and paralysis, the problem would undoubtedly not have reached the proportions we are confronted with today.
The Minister is to be congratulated on the dynamism he has brought to this area and the head-on manner in which he has confronted this extremely difficult and intractable problem. It must also be remembered that this is not the only initiative instigated by the Minister for Defence. Earlier this year, the Government introduced measures to curb certain types of advertising by the legal profession.
I piloted the Solicitors (Amendment) Act, 1992 through this House which, for the first time in the history of the State, allowed solicitors to advertise their services. I did so armed with assurances from the Law Society and individual members of the profession with whom I am acquainted that the new rights being accorded to them to advertise their services and fees would not be abused. Unfortunately, that is not the case. A small minority of solicitors abused my tolerance and the new powers they received. Though they were, and continue to be, a small minority of the legal profession, they have done immense damage. That damage is reflected by the growth in litigation in regard to this issue for which they are largely responsible. They have also done immense damage to their own standing in the community. I avail of this opportunity to thank the Law Society which I know is concerned about this situation for the way in which it has co-operated in the Government measure to reduce some of the more obscene forms of legal advertising which some members of the profession have unfortunately availed of.
As the courts are constitutionally independent, this legislation can only provide, as it does in section 3, that judicial notice shall be taken of the new assessment system which has been introduced. Section 4 provides that the courts would have regard to the relevant sections of the Green Book in determining damages. The courts are independent in the exercise of their functions under the Constitution and the question of this legislation being unconstitutional simply does not arise.
We have been painstaking in ensuring that the Constitution is not breached in any way. We could only be charged with introducing unconstitutional legislation if we tried to compel the courts to take account of the independent assessment system. However, we are not in a position to do that.
There have been references in court cases to other assessment systems. We have been forced to introduce our own systems because arguments made by counsel for the State in previous cases which referred to the independent assessment system for hearing damages introduced by medical authorities in the UK and the US have been simply brushed aside by the courts. Someone looking at our legal system from the outside might be somewhat surprised at that attitude but anyone well acquainted with it would not be. The courts' attitudes are inevitable by-products of the compensation culture with which the system of awards for personal injury damages is infected. If the courts have regard to the new assessment system introduced by the Government's team of experts and, if they interpret the legislation as we hope and anticipate they will, the effect will be two-fold. The level of awards will be substantially reduced and the Minister will be enabled to set up a parallel system for people seeking compensation which will be much cheaper, faster, non-adversarial and more cost efficient. This will be part of a two-part process. If the courts decide not to have regard to the new independent assessment system as the basis for assessing the level of damages, the problem will remain and it will be incumbent on the Government to look for other solutions. If that situation arises, the Government should look much more radically at the whole issue of how damages for personal injuries are assessed.
The Minister is to be congratulated on the dynamism and determination he has brought to this difficult issue. I listened carefully to the debate tonight, particularly to the contributions from Members of the Opposition. I heard a great number of questions but I did not hear many answers. I did not hear one definitive, credible alternative to the Government's proposals.
Legislation, often introduced with the best will in the world, occasionally has the potential to do great harm.
There is no downside in this legislation. It does not have the potential to do harm. If the courts deal with it as envisaged it has the potential to do a great deal of good for many people. That is why it deserves to be supported by all sides and the reason I commend it, unhesitatingly, to the House.
I thank the Minister of State at the Department of Education and Science, Deputy O'Dea, for sharing his time with me. The proliferation of Army claims from the perspective of the Exchequer is certainly not welcome. Compensation of £36 million and plaintiff costs of £8.5 million have been paid out to date. The average settlement is about £20,000 per claimant.
Many of the claimants contend they are suffering from tinnitus. This is a separate question from the issue of hearing loss but one which must be addressed in the context of this discussion. Tinnitus is a ringing and buzzing in the ears. Medical opinion has proven time and again that tinnitus is an extremely aggravating and distressing condition, demonstrating itself in different individuals from a low degree of background noise in the ear to a persistent and deafening roar. Medical opinion is divided on whether the severity of tinnitus is dictated by the degree of hearing loss one may have at any particular time. One thing is certain, those to whom I have spoken in the Army who are suffering from tinnitus are generally in a great deal of pain.
I welcome the Minister's initiative in working towards devising a system of compensation for Army claimants, under what is known as the Green Book system. This Green Book system of compensation is a specifically new and novel form of assessment of compensation for the civil cases before the courts in Army deafness case matters. Legislation is being introduced which will require courts to have regard to this new system of evaluation of Army deafness claims and this is welcome.
The Green Book also sets out procedures for the assessment of tinnitus in cases of noise induced hearing loss. The American and British medical authorities have developed systems and formulas for translating hearing loss into a percentage handicap but it is recognised that these systems of assessment have found little favour in the Irish courts. I hope the new Green Book system is successful in bringing about a common structured and streamlined system and will command the confidence of the Judiciary in its evaluation of Army deafness cases in the future.
The Irish Army has had a proud record of national and international service on behalf of the people since the foundation of the State. In recent times the Army has been engaged in international duties in the former Republic of Yugoslavia, Angola, Somalia and Rwanda. The Army rightly won international acclaim and plaudits for its efforts and endeavours on these overseas missions.
At any given time there are up to 600 Irish soldiers based in the Lebanon as well as soldiers based in Cyprus. The Irish soldiers in the Lebanon have carried out their duties in an impeccable manner and have done much to keep the peace in this contentious area of the Middle East, in accordance with their peacekeeping mandate.
Our soldiers have been professional at all times in their duties at home and abroad. This has been recognised by the United Nations and other key international observers. I hope the debate on Army deafness claims will not have the effect of lowering people's expectations and respect for our national Army.
It is worth noting that the Irish Army is going through a fundamental change which is a totally separate issue from that of the Army deafness claims. Since the Gleeson report was commissioned into the future make-up and structure of the Army it was clear the Army would have to modernise. PDFORRA and RACO which represent Army soldiers and Army officers have had to negotiate real change within their remit of responsibility during the past five years which included the early retirement package for serving officers and soldiers. The good work of the Army, nationally and internationally, in terms of its internal reorganisation and overseas duties must not and should not be affected by the debate on the Army deafness cases pending before the courts.
I too welcome the Bill. In dealing with it I wish to take up a point on litigation raised by the Minister of State, Deputy O'Dea, and build on it. Ireland is one of the most litigious countries in Europe. The compensation culture is like a cancer eating our society and borders almost on the immoral. This compensation culture permeates right through society here, not just in the Army. The State must move quickly to halt this slippery slope where all commercial and service facilities will eventually grind to a halt.
The system acts against the best interests of the genuine claimant who may have to wait many years for the resolution of a claim with its consequent distress and uncertainty regarding the level of appropriate compensation. It also discourages rehabilitation and return to work.
Insurance costs are creating complications for employers, businesses, motorists, public authorities, voluntary and sporting organisations. No area has been spared the paralysis that has accompanied the escalation in litigation. For example, in schools teachers can no longer send a student to the nearest shop for a message. Open season has been declared on public houses, clubs, hotels and supermarkets for people who fall on their premises. The compensation culture is pervasive and is on its way to destroying the ordinary decent person's enjoyment of society. The playground where so many young people have enjoyed themselves over the decades is almost a thing of the past. It is almost impossible to obtain insurance cover for swings, slides, climbing frames and so on.
Motor insurance premia are 98 per cent higher than in the rest of the EU. A male aged between 17 and 21 with a full driving licence will have to pay almost £2,000 to insure a Ford Fiesta car. One cannot begin to justify such prohibitive costs. The situation must be changed. As legislators we have a duty here. I have raised this matter over a number of years so I am not directing it only at this Government. This problem, which has been growing for a number of years, is manifesting itself more and more and will have to be tackled.
Personal injuries compensation represents 67 per cent of the claims pay out in motor insurance and almost all claims pay out for employers and public liability insurance. Ireland, to its competitive disadvantage, has the highest personal injury awards in the EU. Irish claims frequencies and award levels are twice that of the UK.
Part of the problem resides with the legal system. The courts appear to take a lenient attitude to claims, often holding employers responsible no matter what the circumstances. In most such cases, employers are guilty until proven innocent. Only one in nine cases coming before the courts is dismissed. Most of the cases do not go to court but are settled beforehand. This is because insurance companies are aware that going to court will probably increase the level of payment. The chances of proving a case against an employee or a motorist or any such plaintiff are so low that the insurance companies will settle rather than go to court.
That means the person who claims is taking a low risk. He or she has a 90 per cent chance of not even being obliged to give evidence. His or her initial claim has a 90 per chance of not even going to court and having compensation and costs paid.
I commend the Minister's actions in the House today. I admire him for attending the court and for being prepared to stand up and be counted. Other Ministers might not have done so. He is dealing with a small but vital issue, particularly for the State's coffers and for the morale and future status of the Army. However, this issue must also be dealt with in a broader way which will probably involve changing the system. Perhaps we should consider the New Zealand system in which a person has self insurance rather than general insurance.
I thank the Deputies for their unanimous approval of what the Government is attempting to do in this complex area.
Less than two weeks ago we saw probably one of the finest television programmes one could wish to see on the Defence Forces, "Kenny Live". That performance by members of the Defence Forces on United Nations duty and here at home portrayed the skills, loyalty, service, trauma and other factors that have shaped what our Defence Forces can do.
One of the reasons I refer to that programme is that, notwithstanding the generality of support for the Bill, there were some oblique attempts to incriminate me for the problems that might arise with regard to morale from the Army deafness claims. I emphatically reject those attempts. Not only is this a problem I inherited but the Defence Forces are more than capable of overcoming this difficulty and of going forward into more positive development. Earlier I mentioned many of the positive developments currently taking place. We will continue to pursue them with vigour.
There is no way I can hide 12,500 cases. There is no way I can represent the community and not have the public know there is a real danger that many hundreds of millions of pounds will have to be found and taken from somewhere to deal with this problem. If any Member of the House believes I can hide that or that the public should not know or that the court hearings will take place and the media will pay no attention to them, they are living in the type of world I do not inhabit and which I do not intend to inhabit. In confronting this problem I have sought the fairest and most equitable way forward, a way which will ensure that both those with genuine claims and the taxpayers who face many other problems are treated fairly.
I wish to deal with a number of issues raised by contributors. We must accept that this problem is uniquely Irish. Internationally, there is some variety in handicap assessment systems but all of them would categorise large numbers of our claimants as having a nil disability or a minor injury. A huge proportion of claimants would not receive compensation in any other jurisdiction. This is a different jurisdiction with a different Constitution. I would like to go as far as possible in dealing with every case but if I see a situation where we are out of kilter with the generality of experience elsewhere, I must question it and find a better way forward.
Deputies Wall, Fitzgerald and Stanton queried the Bill's constitutionality. The purpose of the Bill is to provide judicial notice of the Green Book. This means that it acquires the status of evidence in court, similar to that of other pieces of evidence adduced before it. It is up to the court to decide the merits of this evidence and to adjudicate accordingly. There is no directive element in the legislation so the question of interfering with the independence of the Judiciary does not arise.
If the legislation has the desired effect, it will be because the courts are persuaded by the rationale of the Green Book. Under this legislative approach, the courts will remain free to adopt whatever attitude they wish in dealing with this issue. I hope they will recognise the efforts of the Oireachtas to come to grips with this problem. However, if the level of damages does not reduce consequent on this legislation, the Government will move to ensure that only those cases involving a significant hearing injury will command the type of high award which has been made in these cases. We are accepting Judge Johnson's invitation to legislate and we are underpinning the Green Book with legislation. We are responding to the wishes of the court.
I share Deputy Fitzgerald's view that the crucial issue is to ensure the right of fair compensation for the individual while protecting the interests of the taxpayer. I have said as much previously on many occasions. However, I am not naive enough to believe that there are many who will not be disappointed by the new regime which this Bill will inaugurate. Expectations of many are high having been fuelled by court awards which the Government believes are unsustainable. I am in favour of fairness. This means a reasonable level of compensation for those with a significant injury or disability and modest or even no compensation for those whose daily lives are unaffected by a minimal hearing loss of a type which many other people, without Army service, have.
That means, and we have at least some evidence to suggest, that a considerable number of claimants have a level of handicap or disability which is such as to make them no different from the average person in society. In that case, taxpayers should not be obliged, as they appear to be at present, to find the resources which the Government is being asked to provide in these cases arising from the awards being made.
The Bill covers all cases currently before the courts. It does not change any rules or impose a mandatory regime on the courts. When the Bill becomes law, I hope it will provide a basis on which the courts can examine claims coming before them for hearing loss and use the Green Book in making an assessment of the extent of the injury suffered and, in consequence, the level of damages which should be awarded. It is clear that somebody who has suffered a percentage hearing disability of up to 19 per cent and who, according to page 9 of the report, can hear whispered speech is not in the category of serious injury. I expect such a person not to receive £20,000 in damages although I admit it remains, under the Bill, a matter for the court to decide.
What level of damages is appropriate to somebody who has suffered 100 per cent hearing disability? We would all agree that someone who has suffered this catastrophic injury should continue to receive the level of award which would be made in the High Court, but we must ask what level of award would be made to someone suffering a 4 per cent or 5 per cent hearing disability on the same scale. There is an issue of inner logic and consistency which should be addressed by the courts arising from the scale and formula contained in the report.
We cannot anticipate the effect of the Bill — judges may not reduce the level of damages. The Bill adopts a minimalist approach. By common consent, a more radical approach would be fraught with constitutional difficulties. We can revisit these if the courts do not match low handicap with low damages. We will adopt a more radical approach if we have to.
The reason no cases have been appealed to the Supreme Court is the likelihood that the level of damages would only be slightly reduced and then cast in stone with detrimental effects on the level of quantum. It should be remembered that the level of quantum in the High Court has fallen consequent on the Department's legal strategy.
Deputy Stanton raised the question of whether FCA personnel are issued with disposable liners to ensure cleanliness. There have never been financial constraints when it comes to the issue of ear defenders which are cheap and widely available. FCA personnel are issued with same.
I thank Deputy Wall for his succinct summary of the effect of the Bill with regard to judicial notice. The Bill is constitutional because it does not, unlike the legislation in the Sinn Féin funds case to which Deputy Fitzgerald referred, purport to direct the courts to do something. That is the advice of the Attorney General.
Deputy Wall referred to the selection of the frequency of 4,000 hertz rather than 3,000 hertz. This is a matter for the medical experts who wrote the Green Book and one in which I do not propose to interfere or accept amendments. To do so would undermine the objectivity of the report. The inclusion of 4,000 hertz rather than 3,000 hertz operates to the advantage of soldiers as plaintiffs since most noise damage occurs at this frequency. Under the American system a figure of 3,000 hertz is used. This has been the subject of frequent criticism by plaintiffs. In that context the Green Book favours the plaintiff.
It was our intention to produce the Green Book in evidence but we were requested by the courts to contemplate the legislation we deemed to be necessary. That is the reason we are responding in this way.
It is clear from the contributions which have been made that there is wide agreement on all sides of the House that we are faced with a difficult problem which requires an urgent solution. I thank Deputies for their constructive remarks. Together we face a difficult situation which is not amenable to a magic wand solution.
It is a matter of regret that the situation has evolved in a way that has proved so harmful to the Defence Forces. My overriding concern is to ensure the development and revitalisation of the Defence Forces are not put at risk by anything that happens in the area of compensation claims. More importantly, I am anxious to ensure the Defence Forces are protected in so far as possible from the effects of the crisis and return to normality as soon as possible. This Bill is an essential first step along that road. I hope, with the passage of legislation, the way will be open for acceptance of the Green Book and the development of a fair and consistent tariff of compensation for those with a genuine injury.
Because of the short time available to address this question I regret that the debate on this important measure has been telescoped. I appreciate the co-operation we have received from the party Whips representing all sides of the House to enable the Bill to be processed in the shortest possible period. With the resumption of the court cases next Tuesday, it is of vital importance that we provide the courts with the basis on which they can address this problem.
Question put and agreed to.
When is it proposed to take Committee Stage?
It is proposed to take Committee Stage tomorrow, with the permission of the House, at noon or 12.30 p.m.
Is that agreed? Agreed.
Committee Stage ordered for Thursday, 7 May 1998.