The presentation of the report of the expert hearing group in the courts means it is within the court's jurisdiction to consider it. Would the Minister agree that it does not rule out the possibility of other expert group reports being presented in the courts, although they would have to go through a different procedure? This report of the expert hearing group is reasonable, wide-ranging, well grounded in international research and not unduly punitory to those assessed by it. If this legislation is accepted, the Judiciary will take special note of the expert group's report. Could another group present an alternative green book as evidence, although it would have a different legal status once this Bill is passed? I presume that possibility is not ruled out.
Private Members' Business. - Civil Liability (Assessment of Hearing Injury) Bill, 1998: Committee Stage.
There is nothing in this legislation to prevent any group from submitting as evidence what it considers to be appropriate in the circumstances. However, since we have been waiting a considerable time to process a distinctive Irish standard with well known experts and advisers on many international fronts in order to compile a complete and comprehensive report, it is unlikely that there is any other report as comprehensive as this. The Deputy is right, however, that it is possible for a group to present what it considers appropriate evidence on this or other matters.
I noted the Minister's reply yesterday about appeals to the Supreme Court. The report of the Irish expert group and the American or British standards are not identical. Mr. Justice Johnson said there are approximately 27 different standards in America which tend to be applied depending on the state in which the case is taken. If the American standard, for example, had been tested in the Supreme Court here, would that have given us guidelines which could have been applied? That is what the Minister is trying to do now with the expert group's report. The key point seems to be that there are standards in the courts other than an Irish one.
The Minister quoted a number of cases yesterday where the courts were not applying any particular standard which could be compared to standards already established internationally. Should one of those standards not have been appealed on a point of law to the Supreme Court in order to set parameters for the courts when discussing this matter? That is what we are doing in this legislation. During yesterday's debate Deputy Wall asked if this could not be done without legislation. I appreciate the fact that the legislation sets an Irish standard, but up to now the Minister was asking the courts to accept a standard which was internationally valid, yet they did not do that. We are now asking them to accept the Irish standard.
I will answer that question on two fronts. There are many different types of personal injury cases where the courts do not have what one might call a comprehensive standard on which to base their judgments. Individual plaintiffs, therefore, put forward their position. They are legally represented and the court has wide discretion. I support their wide discretion because there can be many varying circumstances. I do not know if it would have been possible to have achieved what the Deputy suggested, but we have moved on from that circumstance. Judgments have been made. I tried yesterday to go forward rather than back because we have moved on to the present position. The Green Book, the Irish standard for assessing hearing disability, is more favourable to plaintiffs than the British Black Book or the American standard and I have no disagreement with that. I had no involvement in its preparation and I am happy to accept the wise judgment of those who, based on their clinical experience, produced what we now have. I am not interested in trying to assess what might have happened if other steps had been taken.
Perhaps different actions could have been taken at an earlier stage, but we have moved on and we must wait and see how the courts will adjudicate on the merits of the Green Book. We look forward to a more equitable system emerging which will deal with all the applicants who have serious hearing injury. Those who have minor hearing injuries will also be paid appropriate compensation which will respect the rights of everyone, including the taxpayer.
I do not intend to make any general comments beyond saying I welcome the Bill and the principles behind it. It reconciles the obligation on Government to make available to citizens the right of redress but also ensures that right is available within a reasonable framework. This Bill is a significant attempt to reconcile those two responsibilities.
I wish to seek clarification on a number of points with which the Minister may have dealt. In section 1 "proceedings", in relation to personal injuries, includes any application or claim for compensation. Presumably that means this provision does not apply only to cases of hearing injury suffered by Army personnel, but will apply to all hearing injury cases. To that extent it is nondiscriminatory between Army personnel and others who may suffer hearing injury due to noise exposure in factories, on which guidelines are laid down in the factories Acts, in airport hangers or other such places where there are very high noise levels. The Minister may have referred to this and, if so, it does not need further confirmation, but if not I would like him to confirm that point.
I am glad to note hearing injury as distinct from hearing loss is defined in the Bill. There was a need to set down guidelines and parameters for hearing injury. As the Minister indicated in reply to Deputy Fitzgerald's point, judgment was at large in relation to what exactly constitutes hearing loss. An audiogram will indicate high and low tone frequency hearing loss. Hearing loss was not always a matter of hearing impairment. As interpreted on some occasions, it meant the quality of hearing, the tone at which a person heard words. In many cases before the courts it was clear plaintiffs were not disabled in terms of understanding the exact words directed to them. They could not only perceive and hear but completely understand the words directed to them. However, they might have heard them at a slightly different tone or pitch from other people. There is variation in hearing capacity as one grows older. It was suggested by some consultants that from the age of 25 onwards one's hearing starts to change. The inclusion in the Bill of a reference to age in relation to hearing loss is important. Section 1 states . "where available, of his or her uninjured hearing or, where such measurement is not available, from that predicted as normal for his or her age, .". That reference is fair and appropriate.
Part 2 of the Bill includes a disability percentage age correction factor that starts at age 70. I am not a consultant ENT surgeon, but it has been suggested that a change occurs in one's hearing capacity at a much younger age. Disability may significantly occur only after the age of 70, but consultants advised me that even at my rather young age the level of my hearing capacity is different from that of someone who is 20 years younger, even though I am not conscious of that. Table 4 seems generous in relation to those who require an age correcting factor to be taken into account.
With the advent of the Green Book does the Minister envisage many more cases will reach court rather than be settled before the court hearing? The majority of cases have been settled prior to the court hearings.
Does the Minister or his Department have an estimate or any way of obtaining an estimate of the numbers of those currently on the list? Can he can draw conclusions from the data he has of numbers who will be excluded or will fall below the level, in other words, who will be seen to have zero disability as a result of introducing the Irish expert group report on hearing disability? I would be interested to hear the Minister's response to that point. This ties in with Deputy Wall's point that most cases have been settled out of court. Am I right in saying such data are not available? The Minister said many times that such claimants would not get awards in other jurisdictions, but on what is he basing that claim and can he predict what will happen in the future? He can only base that prediction on cases on which he has data. On how many cases does he have data to allow him to make that prediction?
Regarding the putting into law of a scientific standard agreed by an expert group, I understand this is the first time this will be done. It is a major precedent brought about by an extraordinary situation. Because it is such a major precedent, I can envisage a situation where one group may claim that, for example, autism or another condition is defined in such a way and that condition consists of X, Y and Z. There is always room for disagreement in expert reports. The very nature of expert evidence is that experts will disagree. While there is much agreement among this expert group within the Irish context it is such a large precedent — as Deputy O'Kennedy said, it will relate not just to Army deafness cases but will apply to all personal injury deafness cases — and such a basic readjustment of an approach to personal injuries, that it may run into trouble.
I was disappointed I did not get an opportunity to contribute on Second Stage. In welcoming the Bill, I pay tribute to the Minister and the Front Bench spokespersons for the manner in which they have dealt with it. This difficult problem has been tackled in a mature way. I hope it solves the major problems that lay ahead. I always thought the claimants would have settled for much less but the only avenue open to them was to go to court, which was becoming an expensive route.
The Minister indicated last night that the cost of cases and awards had reduced significantly in recent months and that, in the event of the courts accepting the standard which we were now producing and arriving at more realistic awards, he would consider setting up a more non-confrontational system. Has the Minister decided what might be an acceptable award?
I have been seeking for the better part of 30 years to see if there was any vulnerability or frailty in my colleague, Deputy O'Kennedy. I am glad to notice there is some small deterioration in one of the faculties but the rest of them are certainly superb. The answer to the first question is "yes", it covers all cases, including the Garda compensation scheme, as well as all other workers as far as hearing disability is concerned. The Deputy is correct to distinguish between it and what we all know as gradual hearing loss associated with age. However, hearing loss can be hereditary, have medical causes or be caused by other noises, such as those at discos, etc., which might contribute to it. On looking at the table, it starts at 1 per cent disability for males at 70. Deputies will notice that generally speaking the ladies will not suffer that disability for a further eight years. However, the 20 decibel lower fence takes account of the deterioration in hearing loss over the span before the age of 70.
Deputy Wall wanted to know is it likely that more cases will go to court now. I do not know. If we take into account that there are 10,500 cases still pending, the effect that would have on the courts in terms of the amount of time which would be taken up if all of the cases were to go to court would be significant and would also have the effect of slowing up other personal injury cases, many of which might be much more serious. From that point of view, it is important that we are able to move, as Deputy Power requested, to the non-adversarial system as quickly as possible. That does not close the door to cases going to court ultimately.
What we hope to see happening is that the quantum for minor and insignificant injury will come down to a level which the taxpayer can afford and which is appropriate to that injury; that the compensation for serious injury will remain high because serious injury should be properly compensated; and that a formula can be worked out in due time to find another way of dealing with such huge numbers so that we would not have to deal with this over the protracted period of some 17.5 years at present numbers which was indicated when I was in the High Court. That would not be sustainable. While we cannot predict with certainty what will happen, we hope that we can gradually move to looking at other options as the quantum is reduced. I will come back to this House and seek agreement to whatever steps might be taken. However, we must wait to see what will happen and to what extent the courts will have regard for the Green Book in the context of the existing numbers of claims. I hope we will not have all or huge numbers of that 10,500 going before the courts.
I am anxious to move to a position where we will be able to settle cases outside of the court without bringing in at a significant cost people, whether engineers or other specialised personnel, who are necessary in the context of a court sitting. That is my aim and I think it is the route we should take.
Deputy Fitzgerald wanted to know if we can estimate with any great certainty the numbers which would fall off due to the effect of the Green Book, if that were accepted by the courts. Using any of the other international standards of which we are aware, significant numbers would not qualify for compensation. It would be impossible to put an exact percentage on that, but it would certainly be within the 30-40 per cent range. It would appear that a substantial proportion of the 1,400 cases which have been dealt with either in the court or settled outside the court would either receive minimal compensation or none, although I cannot give an exact percentage because I would have to do volumes of work to be sure about that.
To answer Deputy Power and Deputy Wall, the aim is to move to that non-adversarial system, whether that is settlements outside the court or a different way of dealing with this. I am not in a position to give this House any real facts on what is an appropriate compensation for different kinds of injuries. Each plaintiff has his or her constitutional rights and a case to make, and they will be defended by the legal profession. It is up to the courts to decide what is appropriate in each case. Nonetheless, because there is such a generality of cases arising from the same type of injury in the same type of circumstances, it suggests that a norm will begin to develop in relation to the percentage of handicap. As I said yesterday, if 100 per cent disability in hearing injury should be compensated at a particular rate, we should try to work back on the basis of the appropriate percentage of disability. I could not go beyond that, I am afraid.
On a point of clarification, I did not look for the Minister to give a figure to the House. I wanted to know had he set a figure in his mind. I accept his answer, but I did not seek that he divulge to the House today what he might see as an acceptable figure down the road.
The significance of this report from a public policy point of view is that if it is accepted by the courts, claimants who do not have a case will be excluded. How does the Minister know that 30 to 40 per cent of claimants may be excluded? Most cases have been settled outside court. Does the Minister have data on the hearing assessments carried out on those cases? Is that why he believes that the hearing of the 30 to 40 per cent will be below 20 decibels? I am aware the Minister cannot be totally clear on this, but has he data on the 1,400 cases that have been settled which leads him to the conclusion that 30 to 40 per cent will be excluded because they have no disability or handicap?
That is not what I said. Let us consider the international criteria and the standard set by the British and Americans. For instance, the British system states that there must be 20 per cent disability before a person qualifies. Based on those standards, between 30 and 40 per cent of cases settled outside or in court would fall outside the realm of compensation. In terms of the Green Book, it would be impossible for me to give precise percentages of the number of cases that would fall outside the realm of compensation. Either significant numbers would fall outside it or they would qualify for compensation at a level significantly below that awarded by the courts for such injury.
On what are the Minister's figures based? Does he have the data?
We are moving away from Committee Stage of the Bill and getting into detail on facts and figures. There will be an opportunity under the Schedule to consider who might be affected. We should move on because there are three amendments and I would like to deal with them. This is an interpretative section and I would like Deputies to adhere to the interpretation of the various aspects of the Bill rather than get into detail on figures.
I accept what you say, but obviously acceptance of the expert hearing group report will change the position in terms of numbers claiming. I would like to know on what the figures are based. Are they based on hearing assessment of the 1,400 cases?
Given that it is the intention to find common ground for agreement so that cases will not go to court — and accepting people's constitutional right to go to court — did the Minister speak to representative bodies with a view to drawing up an agreement, or is it his intention in the short term to talk to those bodies and draw up an agreement that would be satisfactory to many of those involved?
From time to time I have meetings with the representative associations where all pertinent matters are covered, including pay and allowances and other matters. We had the opportunity to discuss this matter at informal and formal sessions. I hope to have early meetings shortly on present developments. All of what I said to Deputy Fitzgerald is based on the data available to us and the audiogram undertaken of the plaintiffs. The 30 to 40 per cent is based on the standard of assessment of handicap on the international front. On the Green Book and its effect, detailed analysis has been carried out on about 700 cases and of the numbers dealt with, about 20 to 25 per cent have zero handicap.
(Dublin West): I move amendment No. 1:
In page 3, before section 2, to insert the following new section:
"2.—The Minister for Defence shall bring before the Dáil within four weeks of the enactment of this Act a proposal for an appropriate enquiry to establish who carries responsibility for the situation whereby soldiers' hearing was damaged during their army service.".
It is essential to bring forward this amendment because the Bill is hugely lopsided and imbalanced. This amendment is the least that should be included to balance the Bill. The Bill seeks to address issues arising from actions by victims of alleged hearing injury. It is an emergency measure, a ham-fisted measure to stanch the flow of blood from a wound, but it is utterly silent on who is responsible for the wound, on where responsibility lies for this crisis. The Minister seeks to blame the victims of this injury rather than establish where real responsibility lies, which is appalling.
If bogus claims are involved I utterly condemn them and they should be unceremoniously dealt with. In the overall conduct of this matter natural justice must prevail. Natural justice involves setting up under this Bill a mechanism to establish responsibility for something that is about to cost hundreds of millions of pounds of taxpayers' money. The Minister put responsibility for this crisis everywhere except where it belongs, and that should not go unchallenged by Deputies representing ordinary people, including rank and file members of the Army.
The Minister referred to 1952 and said that knowledge of these matters was limited at that time as it was in the 1970s. I will give an example of my personal experience. In the early 1970s I worked in construction in Sydney, Australia. I worked a jackhammer day after day taking rock out of the streets. On the first day I joined the group of working men I knew some of them had their hearing damaged as a result of not wearing hearing defenders against the constant rattle of jackhammers. It does not take an audiogram to find out that damage will be caused to hearing from constant loud and sharp noises. Even in the 1950s, and much more so in the 1970s, people in the Defence Forces who had responsibility for firing ranges and other activities should have insisted upon precautionary measures against hearing damage. The Minister is trying to absolve the military establishment. Responsibility for this problem lies with that establishment but we must also consider where political responsibility for it lay in the past.
On Second Stage the Minister stated that in the 1970s "In conformity with the practice of the time, it was left to each individual to follow advice and wear the plugs." He also stated that 81,000 sets of defenders were made available but this is not taken as conclusive evidence by judges hearing High Court cases. In the context of rank and file soldiers, this is an extraordinary statement because the wearing of defenders must have been the only matter left to their discretion. No other matters were left to their discretion. Was it left to the discretion of soldiers to decide the time at which they rose each morning or attended for drill practice? Was it left to their discretion to decide whether they should take up Border duty, choose the type of uniform they wore, shovel snow off the streets of Dublin and other areas when so ordered or comply when they were scandalously dragooned to drive trucks to break a bus strike? Absolutely not.
The Minister is trying to absolve the military establishment and place responsibility on rank and file soldiers. His action is totally unconvincing to anyone familiar with the regime under which these individuals operate. I reject the Minister's action. The majority of soldiers joined the Army as working class youths and for decades they formed an exploited section of the workforce. Their rates of pay were scandalous and in the 1980s their spouses stood for election to try to rectify this. I will be blunt — rank and file soldiers were treated like second class citizens in the past. The Army operated an extremely entrenched class system with cadets and officers, for whom rank and file soldiers provided fodder, at the top. That was the military ethos and the military establishment must take full responsibility for being negligent by not taking the necessary measures to protect those in its charge.
The least the Minister can do is accept this amendment which seeks to establish the facts and discover where responsibility lies. I am revolted by the continual tendency in the media and elsewhere to ridicule rank and file soldiers en masse. Scarcely a word has been said about the chain of command which allowed this problem to develop. Having put forward the point of view of the ordinary victims, I hope the Minister will accept the amendment and establish the inquiry I requested.
"Mr. Hindsight", Deputy Joe Higgins, has given us a lesson in history as he perceives it. However, many people would disagree with the views he expressed. This amendment is completely unnecessary. There is no doubt that a number of members of the Defence Forces suffered damage to their hearing in the course of their duties. There is also no doubt that negligence occurred and people who were badly disabled must be properly compensated.
Unfortunately, we have reached the stage where taking a case to court has become very costly and, because of legal expenses, those who suffered have received only a percentage of their original awards. We are now attempting to put in place a system under which people will be properly compensated for the injuries they received as a result of their duties in the Defence Forces. This will remove the unnecessary expenses people have incurred to date.
Deputy Higgins asked who was responsible for this problem? It is important that he should show a measure of responsibility by not singing the same tune at all times. The amendment, which tries to apportion blame, is totally unnecessary. The Committee of Public Accounts dealt with this matter a number of weeks ago and Deputy Higgins did not show much interest in it at that stage. A number of expert groups and individuals gave evidence before the committee. It proved a worthwhile exercise. I am satisfied with the role the Minister is taking on and in due course his action will be seen as correct.
(Dublin West): I am not a member of the Committee of Public Accounts.
The question posed by Deputy Higgins is reasonable. Who was at fault here? It is appropriate to reconsider the history of this issue and examine the various issues at play. In the current climate, health and safety issues are of major importance and legislation in this area has advanced considerably. Is the Minister satisfied with current standards? It appears that no claims have been made since 1987 when the new standards were put in place. It is extremely important to ensure that adequate provision is made for the health and safety aspects of work in the Defence Forces. Disturbing evidence recently emerged that health and safety standards at Baldonnel are not what they should be and a number of hangars were closed. It is obvious that there are ongoing concerns in respect of this matter.
There was a time when a person's individual rights were subsumed on joining the Defence Forces because a different international situation obtained and there was a different awareness of the role of armies. However, the Minister will agree that the awareness of individual rights within a military structure is changing.
The Deputy is moving away from the Committee Stage debate.
Deputy Power stated that the Committee of Public Accounts examined this matter and it took evidence from organisations representing officers and soldiers, from the Department and from the Chief of Staff. One of the issues which emerged is that current safety standards are different to those which obtained in the early years. It is important to remember that in 1961 the protection used was a piece of cotton wool moistened with vaseline, in 1972 ear plugs were issued to all members of the Defence Forces and in 1987 the new training circular was issued and safety procedures changed.
Current health and safety standards must be properly implemented. That is the important issue. I congratulate Deputy Jim Mitchell and the members of the Committee of Public Accounts for the excellent hearings in relation to this issue and the comprehensive way it was examined. The committee did an excellent job in examining the different factors involved and the weight to be given to each of them.
While the thrust of the amendment could be agreed to, I have doubts about what would happen to all the cases currently pending before the courts. If such an inquiry were established, many cases would be put on the long finger and problems might be created in regard to settling all the cases before the Department.
As stated yesterday by my Fine Gael colleague, I am concerned that there are problems with the hearing apparatus being supplied to some sections of the Defence Forces. In that regard I would like the Minister to give a commitment today that Defence Forces safety standards would be 100 per cent and that the situation would not arise where there would be further cases from 1987. It is vitally important that, irrespective of which section of the Defence Forces is involved — the FCA, the Air Corps or the Navy — every effort is made by the Department to ensure devices and tests are made available to the members.
During a previous Question Time I asked the Minister about individual tests taken from 1952. I stand to be corrected but I believe the answer I received was that the tests were the personal property of the individual on whom the test was carried out. I hope that will not be the norm from now on. The Department should also have the results of tests on individual members of the Defence Forces. Such documentation should be available for each member so that their hearing condition over a number of years would be known.
Deputy Higgins's contribution left me a little confused. Perhaps the Minister may be in a position to clarify matters. I got the impression from Deputy Higgins's contribution that there was a two-tier system vis-à-vis the military establishment and the rank and file members. Will the Minister indicate if different types of ear defenders were issued to people in the Defence Forces or was the same type issued to everybody?
With respect to the claims, have claims been made by officers for damaged hearing or are their ears slightly different from the so-called rank and file members? When I served in the Defence Forces I do not remember any distinction between these ranks.
To answer the last question first, ear defenders, as they were at the time, were made available to officers and NCOs. Claims have been received from officers and a number of plaintiffs who are officers have been successful both before the courts and outside. In terms of overall responsibility, many of them would have had at least some responsibility at the time for the maintenance of standards. Putting this into an international context, we had very little artillery fire at the time. We had small range fire and, by any standards, the comparisons we made on the international front would indicate that at that time we were on a par with most other armies in the ear protection available.
To deal with the more fundamental points, I have the greatest respect for everybody who is elected to this House, regardless of the party from which they come, and I know that all Members want to serve their communities. However, I resent any Member deciding for themselves that they are the saviour of the working class. The majority of my supporters have come from the working class, and I do not like classification in any way.
I reject emphatically the contention that I tried to blame the victims. I also reject any effort to put in train in this House the view that I am either trying to save somebody or not doing this job properly. Deputy Higgins knows I did not cause the problem but I have the task of trying to solve it. The greatest disservice one can do to the Defence Forces is to try to find a scapegoat and carry on this parade for years incurring more expense on the taxpayer. Another disservice would be not to try to solve this problem.
We could let this issue continue as it is but from the contact I have had with those in the military, from the top down, I know the level of support that exists for trying to solve this problem on a fair and equitable basis — fair to those who were injured and fair to the taxpayers. We have had a pleasant debate up to now and I would like Members to remember that the ultimate solution to this problem is not to go back to a time when things were completely different.
Before addressing the inherent flaws at the heart of this amendment I must point out that the proposal to establish an inquiry falls completely outside the scope of the Bill. However, lest there be any suggestion that I am evading the substance of the issue raised, I will reply to the proposal.
A very detailed inquiry into Army hearing loss claims is already under way under the auspices of the Committee of Public Accounts. Time after time Members have asked if there is a way this House can carry out inquiries inexpensively and quickly. The Committee of Public Accounts is one of those important arms in determining matters of that kind.
In an unprecedented series of hearings spanning over three days, the Secretaries General of the Departments of Defence, Health and Children, Justice, Equality and Law Reform and Finance attended the committee, with the Chief of Staff and other senior Army officers. Representatives of other interested parties including the Defence Forces representative associations, the legal profession and the Health and Safety Authority were also questioned. The Committee of Public Accounts has already published an interim report and I see no merit in duplicating work already under way.
I have already addressed the history of hearing conservation in the Defence Forces in my contribution on Second Stage. For the benefit of the Deputy, I remind the House that we are addressing the consequences of events which took place more than ten, 20 and sometimes 30 years ago. One can only imagine how a tribunal would try to delve into records that are lost and memories that have become frail in order to establish who was on the range, who was the officer in charge and whether ear plugs were provided on a particular day.
With the wisdom of hindsight and the luxury of Opposition, it is easy to hurl the cheap insult of negligence at the Defence Forces. Among Irish officers and non-commissioned officers there has never been a culture of negligence regarding the safety and welfare of the men under their command. As I have already explained, however, health and safety measures reflect contemporary practice and knowledge.
While Deputy Higgins may outline comparisons with what happened in Australia in his own personal experience, he will know that the Factories Act, which protected workers in this country, was not established until 1975. The health and safety legislation was enacted in l989, two years after a rigorous new system was put in place for the Defence Forces. The regime for health and safety in the Army is excellent. Any resources needed, and any extra knowledge that comes to hand that can enhance that, will be freely made available by me as Minister. A permanent group established within the Defence Forces, involving different members, has provided 63 technical guidance documents as new information comes on stream to continually upgrade systems and ensure that we have the best possible regime for the health, safety and protection of soldiers.
It is one thing for us to praise the members of the Defence Forces for their work here, for their loyalty and service to this country, and for the enormous honour they have brought us in the United Nations where we celebrate 40 years of involvement this year, but these are the same officers that Deputy Higgins now wants to blame who went out to the Congo and to other parts of the world to lead troops in peace-keeping operations. They are the officers who were called out in emergency situations here, that the Deputy seeks to blame.
The Deputy's amendment gives no clue as to what form an inquiry might take. The legal fees being generated by the present situation are burden enough without adding a bill from a tribunal of inquiry which would simply duplicate work already under way. My priority, reflected in the Bill before the House, is to search for a solution not for a scapegoat. The roots of our problem lie in the unfortunate conjunction of a uniquely generous medico-legal interpretation of what constitutes a hearing loss, the unforeseen consequences of a relaxation of the statute of limitations in l991, a degree of a genuine hearing loss in some individuals, and our compensation culture.
Deputy Wall wanted to know whether going ahead with a tribunal would lead to the postponement of cases currently before the courts. It is not proposed to establish a tribunal. Ordinary PAYE workers who pay for tribunals through their taxes, who wait for inconclusive results, who hear conflicting evidence at tribunals, who are unable to decide at the finish where all the millions have gone get fed up with an administration that is unable to solve national problems without exposing taxpayers to millions of pounds of expenditure in this form of attack on the past without determining what it is we should do for the future.
A point I made last night that may have been lost might throw some light on the subject. Deputy Higgins mentioned the wives taking a stand. I am sure Deputy Power remembers it because his constituency was one of the targets. Following those protests the Gleeson commission was set up in l989 and reported in July l990. A team headed by the former Attorney General, Dermot Gleeson, visited barracks, met various groups and received 216 submissions. There were 18 oral hearings. It met roughly 3,000 people and produced a report of 300 plus pages. Nowhere in that report is there mention of deafness. In l990 people were not aware that there was a problem. No complaint had been made to the commission about ear defenders. It is important to note that. The issue may have been raised with the commission by one or two people, but there is no reference to it in the report. If it was an issue I am sure it would have been mentioned. I am not here to fight the Minister's corner but I would be interested in knowing, if the Department can produce the information, whether in the first 100 or 200 cases taken were the first, second or third case taken against the State by the individuals in question.
(Dublin West): I stand over the points I made. I did not apportion responsibility to specific officers. I would like to know where the responsibility lies because it is necessary to redress the balance. The rank and file members of the Army feel extremely put upon as a result of the mass of propaganda in the press which seems to rubbish every claim for compensation or injury. The upshot of implications in the press is that people who have suffered disability are made to feel like cheats. That is unjust and it is necessary to rectify it.
I am in favour of a just and equitable solution, but this Bill does not provide that. When we are dealing with particular measures later I will say why I believe this Bill is not just. From the point of view of the overall balance it is necessary to establish that it is not a case of soldiers on the make and of absolving everybody else of responsibility. The Minister knows that rank and file soldiers were treated very badly for a very long time in the Army. I am not au fait with the details, but there is a chain of command in the Army and the responsibility lies somewhere.
The focus has been on claimants and, at times, on the caricaturing and stereotyping of claimants. As a House we should regret this because it seems that there was a vacuum in terms of legal structures, administrative structures and structures generally within the Army, and a combination of factors, including the fact that there was no compensation system in place within the Army and that we did not do what the British did when they brought in their statute of limitations in l987 — they provided that people could not claim in respect of the period prior to its enactment and put in new safety standards and so were able to assess in an ongoing way whether there was damage from l987 onwards. All these factors came together. A legal and constitutional vacuum allowed these claims develop. I totally agree with Deputy Higgins regarding the stereotyping of claimants. There have been awards given to people where there was low handicap, but that happened in the courts. It related to not having available an expert Irish standard. To focus on and totally blame claimants is wrong. At the same time one cannot condone opportunistic claims or claims where people know there is no disability but try to buck the system. It is reasonable to make this point.
I strongly believe that many members of the Defence Forces would like to see these cases taken out of the courts. They would be willing to accept this if a fair assessment system was put in place, with clear guidelines which matched payment levels with the seriousness of the disability, as long as it was seen to protect their rights. Such an administrative system would receive backing as long as it was not primarily introduced to give the State the upper hand. If it was fair and rigorous with clear standards both the public and the Defence Forces would favour it. The Defence Forces want the issue dealt with fairly. They certainly do not want a continuation of the type of coverage witnessed over recent months which is very bad for morale, something that has been said many times. The way forward is to move to an administrative system. The inquiry being carried out by the Public Accounts Committee, which already has very good information, will continue.
Hopefully action will be taken on the side of safety to ensure no recurrence of this issue. Such action has been taken, with some exceptions.
I thank Deputy Timmins for clarifying the position in relation to the Gleeson commission — I took it up incorrectly last night. I also thank him, as somebody who has served with distinction in the Defence Forces, for facing up to the problem in a comprehensive manner, taking account of the full nature of the problem as distinct from trying to side-track it into an avenue where one becomes the saviour of all.
In my knowledge these hearing cases are among the first such experiences of the State in the context of any organisation. Deputies are aware that there have been multiple claims by some individuals. Yesterday I referred to one case, which was commented upon in court with regard to truthfulness, where three to five claims were submitted against the Defence Forces.
I have no problem with Deputy Higgins's request for a fair and equitable system — I also want that. There is no way the House can hide 12,500 claims or the fact that hundreds of millions of pounds will be required to pay for them. Before reaching the question of which claimants are genuine and which have a lesser or no handicap, these significant sums have to be raised through taxation or by taking money from other services.
Some of the major statements to the national newspapers were made by Army personnel in the context of asking the State to have claims processed in a different manner. Some of these statements presented at least some of claimants as not being genuine. These are not my words but those of statements made by experienced Army personnel, at least one of whom is retired.
I am very anxious to find solutions to this problem. I am not interested in publicity or scapegoating anybody. Neither will I try to totally exonerate everybody involved in all claims. Yesterday I mentioned that 5,000 cases were on hand when the High Court decided to award £80,000 for a minor injury. The 5,000 claims arose over five years but in the nine months following that judgment almost the same number of claims were submitted. People can make up their minds on the effect of the judgment. I accept Deputy Power's comment that the vast majority of plaintiffs would have been quite happy to receive significantly lower amounts. If this had been the case we would not have the astronomical problem we are now facing and trying to resolve.
Audiograms taken while in the Army are available to the soldier and the Army medical officer. I should also have indicated when answering Deputy Timmins that claims by officers represent 4 per cent of the total, while officers represent 10 per cent of Defence Forces personnel.
Like Deputy Fitzgerald, I would have preferred if much of the publicity had never taken place. However, there is no way of getting around the public media addressing serious questions which are tormenting many people. They have agitated the minds of the courts. There has been a significant reduction in the quantum and we are looking forward to a more reasonable outcome on foot of the Green Book in cases which involve little or no injury.
I will defend to the last the rights of individual soldiers and others in society to fully exercise their constitutional right where they feel they have sustained a personal injury. I have said many times on radio, television and other media, something Deputy Higgins has seen fit to ignore, that I want to see genuine applicants dealt with quickly and comprehensively. I have stated publicly that I will be their friend and defender. However, we must remember that no defence of genuine applicants with serious injury attributable to their service in the Defence Forces would be possible if the train was allowed pursue the route it was taking. As night follows day, two things would happen: those with a genuine injury would receive less than they were entitled to while those with insignificant injury would continue to receive more than they were entitled to. These are only two of my worries. My biggest worry is that the greatest disservice to the Defence Forces would be a failure to ensure that a proper system was in place which was fair and equitable. Failure to do this would see the decimation of the Defence Forces in terms of our total Estimate.
As I said yesterday, no Government will make the cuts in education, health, environment or other such sensitive areas. It is more likely that money would have to come from our Estimate. This would destroy recruitment, refurbishment and provision of armoured personnel carriers which we need in the UN. All the positive things we want to do would be jeopardised. This is why I must be forthright. While others can skirt around the issue, I must face reality. I am not afraid to do this and I want to do it on a fair basis. I am glad that every contributor in the debate has been anxious to do the same. I appreciate the unanimous support I have received in going this far.
(Dublin West): I move amendment No. 2:
In page 3, lines 32 and 33, to delete "whether commenced before or after the enactment of this Act." and substitute "which proceedings deal with hearing injuries sustained after the enactment of this Act.".
I want the Minister to respond to a number of specific points I wish to raise about the new standards he proposes in the Bill. It is arbitrary to introduce a standard and apply it to injuries sustained during past decades. In regard to fair and just settlement, it would be desirable if the parties concerned found a way to take this matter out of the courts. Every effort should be made to achieve this as it would dramatically reduce costs.
There are a number of difficulties with the Minister's proposal. If the Bill is passed and the courts have regard to it, it will be applied strictly to claimants currently claiming compensation for injury before the courts. On the other hand, it could have serious consequences for serving soldiers whose hearing competence is graded by audiogram tests. For example, depending on the extent of hearing loss, this could result in failure to be promoted, denial of overseas service or, at the extreme end, in discharge from the force. However, if a soldier is discharged, obviously he or she would be entitled to a generous compensation package. Under the policy of the Defence Forces, will the first 20 decibels of loss be disregarded when the Army is grading soldiers undergoing tests? Otherwise, one standard will apply to people currently before the courts and much stricter standards, with possibly severe consequences, to hearing tests for soldiers in the Army.
This proposal will also pose problems for soldiers who leave the Army and are obliged to take a hearing tests when they apply for civilian jobs. Such tests are often required for jobs in security firms, for which many former soldiers apply. If they have a hearing loss of 19 decibels they could be turned down for such jobs, but that is not taken into account in the case of the courts. If the Minister introduces a standard for the courts, does he not believe a similar standard should apply to grading soldiers in the Army and in respect of civilian jobs when they leave?
I appreciate that measuring hearing loss is very difficult and that the facilities for doing so have not been fine tuned. In that sense it is different from a visible physical injury. What the Minister is doing is equivalent to saying if one loses the top of one's finger it may be disregarded for compensation purposes, whereas if one loses half a finger one should be compensated. While a hearing loss of up to 20 decibels may not be a disability in the strict sense of the word, it is certainly a loss for the individual concerned. Why should the aspects of life affected by hearing loss be disregarded?
If the Minister introduces standards for the courts, they should also apply to injuries sustained from the time they are put in place. To apply them retrospectively could give rise to the contradictions and inconsistencies to which I referred. Will the Minister respond to those specific points?
Deputy Higgins wants to confine the application of this Bill to proceedings which deal with hearing injuries sustained after the enactment of the legislation. In the normal course of events that would be a reasonable proposal and consistent with the norms of law. In reality, however, if his proposal were adopted it would apply to almost zero cases. The hearing protection regulations introduced by the Defence Forces and the authorities in 1987 is recognised by all levels of the Army as entirely adequate. That, ipso facto, indicates that hearing injuries would not have been sustained since 1987. To the best of my knowledge, none of the claims currently before the courts contains the assertion that a hearing injury was sustained after that date. Therefore, Deputy Higgins's amendment would not be applicable in any case although the reasons he outlined were justifiable.
The Statute of Limitations is an important issue in all these cases. It is clear from the views outlined in the Green Book and comments made by the Minister and others that hearing impairment, once sustained, is permanent. In the vast majority of cases currently before the courts, the claimants and their legal advisers are, perhaps understandably, making the case that they only became aware of the injury three years prior to the commencement of proceedings, even though it may have existed before that. The proceedings currently before the courts were initiated in 1995, 1996, 1997 and even in 1998.
In some cases, people may only have become aware of the gravity of their injuries in the past three years. It will be for the courts to adjudicate on that in accordance with the Statute of Limitations. I will not comment on what might be termed the rather extraordinary coincidence that so many people, having sustained an injury prior to 1987, only became aware of it in the past three years.
The Minister is trying to achieve a balance in this situation. There are inevitably some people who, when they heard access was available to the courts in matters of this kind, availed of it. Although I am reluctant to say it, it would appear that some may have been encouraged by legal advisers. When the issue of the Statute of Limitations, which confines claims to injuries sustained in the three years prior to the initiation of proceedings, is raised, people's standard response is that they only became aware of the injury or its gravity within the preceding three years. That may be true in some genuine cases.
It is important that we, as politicians with responsibility to the taxpayer, attempt to achieve a fair balance in this matter. That is what the Bill attempts to do. It is then a matter for the courts to adjudicate on whether the Statute of Limitations applies in the light of the evidence before them. Deputy Higgins's amendment, if adopted, would not apply to any cases. One would also have to consider injuries other than those sustained in the course of Army service, although that is the focal point with which we are dealing. We must bear in mind that courts read the law as we pass it, not as we would wish them to read it. No specific reference is made in this legislation to the Defence Forces because the same non-discriminatory approach must apply to everything.
Anyone with any awareness of the pattern of awards will realise that what the Minister said in regard to size and precedent is entirely true. Having said that, it is equally clear that it was important to resist and defend some cases vigorously. When a general guideline to that effect issued from the Department, a considerable number of cases were dismissed. That had not been the experience hitherto.
Some judges may have felt aggrieved by comments made by the Chairman of the Committee of Public Accounts which implied that all of the amounts awarded were determined by them when they were not. The Minister for Defence made it very clear that those with genuine cases would have those cases heard and processed and would receive a fair and reasonable response from the Department and the Attorney General. However, where doubts exist, claims must be properly resisted. In many cases, judges had nothing at all to do with the amounts awarded.
Judges do not live in cloud cuckoo land, neither do solicitors or Army personnel. From the initial judgment, referred to by the Minister, onwards, cases were dismissed which would not previously have been and awards as low as £2,500 or £5,000 were made. The Chairman of the Committee of Public Accounts outlined a grossly inflated figure of what those claims were costing the taxpayer and he dominated the headlines. He appeared to estimate the cost on the basis of the number of serving members of the forces who have not, as yet, had their cases dealt with and those likely to bring proceedings in the future. He then seemed to multiply that global figure by an average award, which he fixed arbitrarily, thus arriving at a figure in the region of billions of pounds. That did not do anybody any service. It was not fair to the serving members of the Defence Forces or to those who were entitled to bring claims but chose not to for one reason or another. If we are going to make a valid contribution on this issue, we should not grossly overstate the reality, serious though it may be. I suggest that the figure will be significantly lower than that mentioned by Deputy Mitchell. I wish I could be as sure of everything as that. They will then ask what went wrong and on what information is it based.
Obviously the issue is to get a measure of balance in dealing with the rights of serving members of the Army who have done this nation proud. We all acknowledge that. Even if there was, through an oversight, a lack of knowledge on the part of the authorities through successive administrations and command it would not have been the intention of any administration, much less this one, to deprive them of their rights. Therefore, we want to acknowledge — I think this is the intention in Deputy Higgins's amendment — their right to access to the courts in circumstances such as this, subject to their being another way if that is to emerge. If the pattern followed before the cases were adjourned continues and with this new measures of hearing impairment, which is appropriate as distinct from hearing loss, the courts are free to make their decision, I have no doubt that many of the cases included in Deputy Mitchell's list will not appear in a list anywhere else because it will be clear to the advisers of those people that they have no chance of success whereas these have and costs will be incurred. It is proper that the State, in circumstances where it considers the case had little or no merit, should not only apply for costs, to which it would be entitled if the case is dismissed, but pursue its costs afterwards. In the event of a settlement the costs will be a different issue. One has to take a responsible view in all this given that the taxpayer cannot dole out sums to all and sundry to whom it might occur to bring claims.
In the spirit of Deputy Higgins's amendment, perhaps the Minister and his advisers would look at what may be only a minuscule number of cases. Deputy Higgins wants to substitute: "which proceedings deal with hearing injuries sustained after the enactment of this Act." A small number of cases, perhaps fewer than 20, was being heard before the whole process was adjourned and this Bill introduced. There would be a certain difficulty if this Bill were to apply to that small number of cases. If the formula of words proposed by Deputy Higgins that this Act shall apply to all proceedings before a court, which proceedings deal with hearing injuries sustained after the enactment of this Act, were accepted it would mean the small number of cases which had been conducted for two or three days, before the Bill was introduced, would be excluded. This would mean just a small adjustment but there could be a difficulty. In fairness to the courts it may not be necessary.
Section 4 states: ".. the courts shall, in determining the extent of the injuries suffered, have regard to..". This Act could not have full and vigorous effect in respect of those cases which have been partially heard.
It is significant and appropriate to acknowledge that the Bill provides that the courts shall, in determining the extent of the injuries suffered, have regard to the classification method. That classification method, which is a matter for expert evidence — expert consultants — is that the courts shall have regard to that expert evidence, and rightly so. I do not think the courts could object to that. This is a very balanced approach and the parliamentary draftsman, the advisers and the Minister obviously had this in mind. It does not state: "The courts shall, in fixing compensation, have regard to..". The courts know that if they have to have regard to the extent of the injuries suffered, it means they will fix the compensation accordingly. The balance which refers to the classification method, contained in Chapter 7.1, is appropriate and does not tie the hands of the courts.
I can understand and endorse the views of those who say that if another system can be found, after we see the effect of this legislation in practice, we could come back and establish a norm which the courts had adopted. On the other hand it may well be that if the practice, following the enactment of this Bill, in the courts is such as to greatly impact — maintaining the balance at all times between the plaintiff, the State and the taxpayer — that would be a matter for judgment. It is a judgment that would create a reasonable balance between an injured plaintiff and the State, which would have responsibility.
Section 2 states: "This Act shall apply to all proceedings before a court, whether commenced before or after the enactment of this Act." My question, which the Minister addressed slightly yesterday, asked about the Attorney General's advice on this section. In his book, The Irish Constitution, Kelly states that the independence of the courts and their immunity from control by the Oireachtas is not absolute and can scarcely be made so. He says that most of the court structure and court procedures are prescribed immediately or ultimately by Statute, which the Oireachtas can modify, and that there seems to be nothing to prevent the Oireachtas from changing the law retrospectively to nullify the effect of a courts judgment in one case or a series of cases, provided, of course, that this does not trench on the rights of the parties to that litigation. That is a critical point. He goes on to say that what does appear to be inviolable is the judicial process itself. While in operation, once begun, it must be allowed to run its course without interference. On the principle of judicial process being inviolable while in operation, what was the nature of the advice the Minister received? Yesterday the Minister said that in the Buckley v. the Attorney General — the Sinn Féin funds case — there is a difference between that and this legislation. There was more of a direction involved in that case whereas this legislation shall take note. This section seems to be a direct application and it is probably a legal constitutional point. I do not know how it will be adjudicated on. It seems that section 2 is giving a strong direction to the court. I thought the Minister made the point that the difference between the Buckley case and this legislation was slightly more open. Is that an issue?
Deputy Higgins and I, in the earlier part of the game, tried to sort each other out while the referee was not watching. I thought he had just come around to my point of view when he kicked the ball into the back of the net again.
I was delighted to hear him say he wished to see the compensation bill reduced dramatically. We must ensure our resources are directed in the best possible way. All public representatives are under pressure to try to meet the public's demands, whether it is a speech therapist for somebody who cannot speak, a physiotherapist for somebody who cannot walk or an artificial limb for somebody who has waited months for it. As a result of that pressure, we cannot afford to waste anything while at the same time ensuring that every genuine claim is met.
The Army grades as H1 a person who has thresholds below 20 decibels. The House will accept that 20 decibels is a fair threshold. A person with up to 35 per cent disability will be retained in service in the Defence Forces to perform certain duties, although not necessarily those they did previously. No measures are being taken in the Defence Forces which will use either the Green Book or any other threshold to change the fundamentals in this regard.
I thank Deputy O'Kennedy for his comments. It was important to hear from somebody who has experience with matters such as this in the courts. From the Deputy's perspective, in terms of his legal activities, his presentation to the Dáil on this matter was courageous on a number of the important aspects of this problem. I also thank the Incorporated Law Society. After our earlier encounters we have managed to come together to bring forward legislation which restricts advertising, albeit by a minority of legal firms who have not helped in this process. However, that is in the past.
When one makes comments about a certain profession, people are inclined to interpret them as a generality no matter how often one uses the term "minority". I have said on many occasions that I have the highest respect for the work of the legal profession and, as a public representative, I have experience of many cases which have been brought to court in circumstances where there was no question of money being paid because it was not available. These actions are worthy of recognition.
Section 2 ensures that the legislation applies to all proceedings at present before a court, whether those proceedings commenced before or after the enactment of the Act. Deputy Higgins's criticism is misconceived as the courts will remain free to award whatever damages they see fit. The Green Book will not be applied but the courts will have to have regard to the Green Book. The issue of unfairness or retrospection does not arise.
The purpose of section 2 is to ensure that the provisions of the Act, namely, judicial notice to be taken of the Green Book report and for the courts to have regard to the handicap assessment formula for hearing loss and tinnitus, apply to all cases awaiting hearing. There are 10,500 such cases before the courts at present. If the Oireachtas is of the view that the Green Book report should be taken into account by the courts in assessing hearing handicap for future cases, it is only fair and equitable that such provision should also apply to current cases.
Some misgivings have been expressed in relation to the possible unconstitutionality of asking the courts to take judicial notice of the Green Book report and to have regard to the formula contained therein in a retrospective manner. However, the effect of the Bill's provisions merely requires the courts to treat the Green Book as evidence and to have regard to its handicap assessment formula. Under these provisions the Green Book will acquire the status of proved evidence in court but it will be a matter for the court to decide the weight to be attached to this evidence. The court will remain free to come to whatever conclusion it sees fit.
Since there is no interference with the adjudicative process of the courts I am advised that a constitutional difficulty in respect of the separation of powers and judicial independence does not arise. For this reason I am not disposed to accept the amendment.
In relation to the tiny number of cases to which Deputy O'Kennedy referred, the provisions in the Bill which seek to have the court to have regard to the Green Book as distinct from it applying the Green Book should safeguard against his fears.
(Dublin West): The Minister did not comment on my point about his introduction of a particular standard for the courts. However, when former soldiers participate in tests for private employment, perhaps in the security sector, a different standard might be applied. The Bill makes fish of the soldiers in one area and fowl of them in another. Did the Minister understand that point and does he see the inconsistency?
Are we failing to distinguish between screening and audiometry? The screening process which is carried out under the health and safety legislation extends from 6,000 to 8,000 hertz. That is a screening process for an early warning system for employers to determine how more safe procedures can be introduced whereas——
(Dublin West): The Minister is recommending to the courts that a certain element of hearing loss can be disregarded.
Yes.
(Dublin West): However, employers of people who have hearing loss might not take the same position and disregard such hearing loss. People who are before the courts are in one situation but they are at a disadvantage when they are seeking employment because the same standard does not apply.
That is the point of the Bill. It does not discriminate between noise induced deafness in the Army and noise induced deafness in normal employment. There is no distinction. I do not see the Deputy's point.
(Dublin West): The Minister is suggesting that before the courts a certain element of hearing loss is disregarded for the purposes of compensation. However, when the same people apply for jobs in, for example, security, the employer might not take the same attitude and disregard that element of hearing loss. They are then subject to more stringent measures which disadvantage them when seeking employment.
The Deputy fails to take account of the low fence of 20 decibels. That is accepted as a low fence by any international standard.
This must be dealt with in its broad context. It is a standard devised by experts and it will remove the confusion which has existed up to now.