Before we proceed, I apologise to the House for the delay.
Civil Liability (Assessment of Hearing Injury) Bill, 1998: Committee Stage (Resumed) and Remaining Stages.
Section 2 agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
(Dublin West): What does it mean that judicial notice will be taken of the report? What effect will this have in the courts? What level of obligation does it put on High Court judges in considering these cases? Is it the case that they will bear it in mind and take a different approach or that they may take the evidence of hearing experts rather than be bound by the levels proposed by the Minister? Does the Minister believe that, probably within the week, this Bill will wind up being tested on the basis of its constitutionality or otherwise?
Yesterday we discussed the concept of judicial notice and what that would mean. Will the Minister agree there is an unpredictability about this, given the separation of powers and that we do not know, even if judicial notice is taken, how it will be interpreted and how it may relate to levels of disability and compensation? We may or may not see a reduction in compensation awards and, therefore, in the State's bills. If, for example, judges apply it with reference to a scale which the State may still consider too generous, little or nothing will have changed. The impact of the Bill, assuming it is found to be constitutional, will be unreliable even if applied as it may or may not reduce costs depending on the approach of the courts to the expert group report and compensation. The Minister has already outlined some of the decisions he felt involved very high awards in cases of very low levels or no handicap. We do not know how judges will take this report into consideration — if they decide to take it into account — when deciding levels of damages, or the comparative levels of compensation. Similarly, we do not know what judgment we, as a Legislature, will make on the potential long-term costs. Is this correct?
I am glad of the opportunity to contribute, as yesterday the debate was curtailed.
Acting Chairman
We are discussing section 3.
I am aware of that. While this Bill should have a wider remit than Army deafness, the fact that it is being introduced by the Minister for Defence seems to focus it specifically on Army deafness. This may give rise to problems. The legislation can only be one facet in addressing a multi-faceted problem. I am Chairman of the Committee of Public Accounts but am speaking in a personal capacity. The House is aware that the Committee of Public Accounts has spent much time considering this very vexed question. It is too much to rely solely on this Bill to reduce or resolve the problem.
Deputies Higgins and Fitzgerald raised whether the Bill being taken into account by the courts will have any real impact. We must wait to see how the courts interpret or apply the Bill. While the Committee of Public Accounts called for legislation to deal with the issue it was felt that to introduce into legislation a hearing loss and disability standard would not be sufficient on its own and that it would be necessary to accompany it with a table of damages for different levels of disability. This is not included in the Bill. Was this issue considered and, if so, why is it not provided for in the Bill? It seems that herein lies the difficulty. The courts may decide in the light of evidence that a person has X per cent of difficulty and give X multiplied by ten in damages. In this context the State's potential exposure to massive liability may not be diminished.
Regarding the questions raised by Deputy Higgins, section 3 is the fundamental provision of the Bill. It states that "Judicial notice shall be taken of the Report in all proceedings before a court claiming damages for personal injury arising from a hearing injury". This means the entire contents of the report — its discussion of the nature of hearing loss, its recommendations in respect of hearing disability assessment and treatment of tinnitus — acquire the status of proved evidence in court. There is a requirement for judges, therefore, to have regard to it as evidence. However, it does not mean the court is obliged to take any specific inference from this evidence: it is purely of an advisory or persuasive nature. Obviously, given its distinguished authorship, it would be regarded as having a considerable degree of weight, particularly in the context of the current spate of hearing loss cases before the courts.
There is no way I can prejudge how the courts will react to the legislation. They must have regard to its contents and judicial notice. The courts addressed the House in the sense of indicating that it was a matter for the Legislature to introduce legislation, if required, to change the circumstance surrounding the claims and not the courts. Therefore, in the first instance we are addressing what has been said by the courts. Second, the absence of an Irish standard and the non-recognition by the courts of other international standards required us to produce the Green Book, something which was done independently and comprehensively.
Regarding the issue raised by Deputy Mitchell, this is not the beginning. Last autumn a decision was taken to assemble a group of consultants to prepare the Green Book. It was given to me in the first or second week of April. It took about five years to produce the Black Book in the UK. Therefore, considerable work had to be done by the experts. In addition, the Government passed proposals for legislation in relation to banning and restricting advertising by solicitors. In this context the Bill is the third phase in dealing with the issue.
Regarding the recommendations of the Committee of Public Accounts, annexing to the Bill a compensation chart indicating the amount to be paid for each percentage of handicap could not be easily done. The advice from all sides was that it would be fraught with very significant constitutional difficulty. Already questions about the constitutionality of the Bill have been raised. We have been able to dispose of these arguments on the basis that it will be up to the courts to make their own decisions on the weight to give the legislation. They are not being required by law to adhere to it but to take judicial notice of it and have regard to the formulas it contains.
The issue of the Minister for Defence introducing the legislation was raised. There is collective responsibility within the Government. Matters which are complex and difficult for a Minister, the Government or the people must be resolved by the Government and this is what we are doing. The Bill has been agreed by the Government and backed by advice from the Attorney General: there are no other circumstances in which it could have been introduced.
I cannot predict what will happen. There has been significant support for this legislation in the House. The distilled wisdom is that it is the most appropriate step to take at this stage. There has been no other concrete suggestion which is capable of early implementation. It is important that the question be addressed as quickly as possible and that we proceed to deal with the cases. Earlier Deputy O'Kennedy indicated that there was a sea change — perhaps this description is too all-embracing — in the courts and the legal profession in relation to their perception of the change which is coming. The courts have given us an opportunity to reflect on this matter. The public, the Defence Forces and the people at the top in the military service have been given an opportunity to address the matter in a comprehensive manner at the Committee of Public Accounts and other fora. These developments should result in a significant change in court awards and settlements to plaintiffs with insignificant disabilities or handicaps while those with serious injuries will continue to receive substantial awards. Beyond that, I do not have a crystal ball.
Given that the effect of the Bill on the level of compensation awards and the scale of liability to the State is unpredictable, the only answer is to introduce a scale of compensation or a pensions scheme. Will the Minister elaborate on his advice from the Attorney General on the constitutional difficulties with such a proposal? Would a constitutional amendment be necessary to introduce a pensions Act with certain scales for the Defence Forces?
A scale of compensation awards already exists in the social welfare system, but the number of applicants, even from noisy industry, has been very small and the award levels are manageable. Why, therefore, would a scale of awards be unconstitutional in the case of this legislation? The effect of the Bill will be weakened if such a measure is excluded.
Has the Minister considered introducing other legislation in this area? For example, is legislation to amend the Army Pensions Act being considered? Has consideration been given to widening the remit of the Army Pensions Board to deal directly with future compensation claims derived from military service? Given the current experience with Army deafness cases, tummy upsets and so on, surely it would make sense for the Army Pensions Board to deal with future compensation claims. We cannot continue to leave ourselves open to huge claims.
I compliment the Minister for Defence on the courageous and energetic way he addressed this problem, but this is only part of a wider compensation culture. The report of the Committee of Public Accounts states that the Government announced 15 months ago that it would set up a State claims agency. Two years prior to that the Select Committee on Finance and General Affairs recommended setting up such an agency. Where is the legislation for that agency? The compensation culture is affecting all local authorities, semi-State bodies and pubs and shops in the private sector. Why is it so difficult to include in this Bill a scale of compensation, as recommended by the Committee of Public Accounts, when it is already included in social welfare legislation? Has consideration been given to extending the remit of the Army Pensions Board to deal with future compensation claims for disability and abolishing the one year limit, on leaving the Army, in which claims can be lodged? When will a State claims agency be established?
It would appear from the more recent contributions that an important matter is being excluded from the debate, the constitutional right of every individual in the State to seek redress in the courts. An alternative system would be tenable only where the level of response from the courts corresponds with that provided by a compensation board or a pensions system. The level of compensation for minor disabilities is such that an alternative system would not be acceptable to the individuals concerned because they would realise they could get a considerably larger sum through the courts. We want the courts and all concerned to realise we cannot afford these compensation awards, particularly when there are people with other types of handicap who deserve our help but we are unable to assist them. We want to gradually introduce an alternative way of dealing with such matters.
We are talking about a large number of comparatively young individuals. Therefore, when aggregated over a long period, the amount of pensions would be very substantial. It is not a question of taking the easy road of paying pensions to rid us of the problem. They would have to be funded over a considerable time. It is more realistic to deal with the matter on the basis of direct compensation, assuming it is at a level we can afford and fair and equitable to each circumstance.
The strong legal advice available to me is that it would be unconstitutional to stipulate a mandatory scale to the courts. Since that is so, I do not have the option of combining this legislation with the added dimension of a charter or scale for compensation in respect of different percentages of disability.
We now have to await the courts' response on this matter. If the quantum does not fall to the kind of levels which logic dictates, I will then have to give consideration to more radical measures and perhaps face down the constitutional difficulties which may lie ahead.
I am anxious to reach a consensus on this matter and do my utmost to deal with this complex question. Bearing in mind the separation of powers, the courts will have the discretion to make their own fair and equitable decisions in due course. In the absence of that, I will give serious consideration to other proposals which I already have in mind but am unable to divulge at this early stage.
A State claims agency will only address legal transaction costs. The Bill is designed to address the quantum in courts by showing that low handicap deserves low damages. We cannot deny a person's constitutional rights and as long as awards remain at high levels, people will not wish to avail of any other option.
It could be said that the legal system was never designed to deal with thousands of cases in a mass action such as this. This situation highlights the need to have an alternative structure in place to deal with such claims.
I know the Minister is optimistic in regard to the Bill's effects. I, too, am an optimist but there is a certain unpredictability about this issue; we do not know how the courts will respond or how the scale of compensation will develop. It may well be necessary to consider other options. Will the Minister return to the House if the Bill is found to be constitutional and give us some feedback on its effects?
Question put and agreed to.
SECTION 4.
Question proposed "That section 4 stand part of the Bill."
(Dublin West): This is a Bill for all citizens and workers, not merely Army personnel. It is important that we are just and fair in our approach to working people. This Bill, if passed, will ask the courts to disregard the first 20 decibels of hearing damage for compensation purposes. Does the Minister agree that workers presenting themselves for new employment, when given a hearing test, should also have the first 20 decibels of hearing damage disregarded if such damage is ascertained? Otherwise, the worker will be doubly disadvantaged if 20 decibels of hearing damage is taken into account for employment purposes and is also disregarded in the courts. I see a clear contradiction here which should be clarified.
With regard to soldiers who continue to serve in the Defence Forces, will the Minister categorically confirm that if damage of the level he wishes to be disregarded is ascertained in a serving solider, it will not be taken into account when the soldier's prospects for overseas duty or promotion are being considered?
There has been very significant publicity in regard to a case which has already gone before the courts. The person in question was well compensated and subsequently promoted. As far as overseas duty is concerned, the obligation on the military authorities will always be to select the most capable people from a pool of volunteers. I am not aware of any restriction which prevents people with normal levels of hearing loss from participating in this. With regard to other employers, I think everyone agrees that the Green Book sets a very low threshold.
I thank all Deputies and party Whips for the arrangements made yesterday and today to facilitate the passage of this legislation. I thank the officials in my own Department who have worked diligently to ensure that the legislation would be ready in time and withstand the best wisdom available in this House. It is important that people know that the Government's commitment to this problem, in staffing terms alone, is evidenced by the fact that in excess of 100 people are dealing exclusively with this matter between my Department, the military authorities and the Office of the Chief State Solicitor. I wish to extend special thanks to the Office of the Attorney General and its staff which had to facilitate us in terms of timing by overstepping other matters to ensure we were in a position to pass this legislation by next Tuesday.
The Green Book is set to become the Irish standard on hearing disability and related matters. In a few days, it will be underpinned by legislation. The legislation is due in the Seanad tomorrow and will, I hope, be signed by the President early next week. It is the biggest lawsuit the country has ever faced and the biggest lawsuit in proportional terms that, perhaps, any country has ever faced. We are trying, as honestly and as fairly as we can, to approach this matter in an open, transparent and accountable way. The contributions by all sides, notwithstanding the early tussles this afternoon, are genuinely aimed at helping to secure the best possible solution to a very complex and difficult problem.
If we have succeeded today in taking the right steps, which I hope we have, and moved the issue to a plane of equity and fairness, that is something of which we can be proud. In the event that we have to return again I look forward to hearing from Members and receiving their co-operation in taking whatever steps are necessary to put it right.
As it is now 4.30 p.m. I am required to put the following question in accordance with an Order of the Dáil of this day: "That the sections undisposed of, the Schedule and the Title are hereby agreed to in Committee and the Bill is accordingly reported to the House without amendment, Fourth Stage is hereby completed and the Bill is hereby passed".
Question put and agreed to.