For the convenience of Senators, the Committee Stage amendments have been circulated before the Second Stage debate.
Civil Liability (Assessment of Hearing Injury) Bill, 1998: Second Stage.
Question proposed: "That the Bill be now read a Second Time."
Is é seo an chéad uair a bhí an chaoi agamsa teacht chuig an Seanad ón am a toghadh mar Aire mé. Tá súil agam go mbeimid in ann an gnó seo a chur ar siúl, nach mbeidh deachrachtaí ró-ghéar agaibh agus go mbeidh sibh in ann dul abhaile roimh an Domhnaigh.
As some Senators may be aware, I was previously Opposition spokesperson for Defence. I had always assumed that should I be honoured with ministerial office, my working day in the Department of Defence would be dominated by the exciting plans for the major reorganisation of the Defence Forces, preparing the country's first White Paper on Defence and the many other policy areas involved in running Defence in this country. Unfortunately, I have found that this is not the case. Since I took up office last October I have been dealing with the largest single policy issue ever to have arisen in the defence area, the avalanche of Army hearing loss claims. It is the one issue which has dominated my term as Minister so far — and it is likely to do so for another while yet.
When I took up duty I deliberately decided to take a very proactive and direct approach in trying to deal with the claims issue. I am a firm believer that big problems are never solved unless strong action and leadership are shown. I knew I was facing a monumental task. The Army deafness cases had taken a stranglehold on my Department and the Defence Forces as a whole. The scale of the claims was mind boggling and had the potential of causing massive damage to the great reputation of the Defence Forces.
The overriding consideration for me from day one was to have a balanced and fair approach to all claims, an approach which would deal sympathetically with all those who had genuine injuries attributable to their service in the Defence Forces where there was negligence and at the same time ensure that the taxpayer, already overburdened, did not have to meet unnecessary financial commitments.
From the outset, I was also very concerned about the effect the claims were having on the morale of the Defence Forces, which received, the widest possible coverage in both the home and international media. I have the greatest respect and admiration for our Defence Forces. I will do anything to protect their proud reputation gained from the marvellous work they do both at home and overseas. Anybody who was lucky enough to watch the "Pat Kenny Show" on Saturday, 25 April 1998 saw at first hand how committed, dedicated and effective members of the Defence Forces are when working in the cause of peace in Lebanon, Cyprus, Bosnia, Syria and other faraway lands.
At home the many roles of the Defence Forces and the work they carry out must be recognised. For many years, members of Army bomb disposal teams have been involved in making safe lethal bombs which undoubtedly had the potential to cause havoc and serious injury in our country. Every day Army personnel are involved in cash escort duties, Border patrols and business and security duties, to name but a few. Air Corps personnel fly search and rescue and air ambulance missions. Naval Service patrols protect our maritime environment, often in hostile weather conditions. We owe a great debt of gratitude to all members of the Defence Forces for their loyal service to the country.
We must face the stark reality that a compensation culture has developed in Ireland which, if it is to go unbridled, will in the long term do enormous damage to our society. To put it simply, if compensation is to be paid for each of life's little mishaps, the cost will eventually make the State economically uninhabitable. It is important to emphasise this because in some quarters, there is a mistaken impression that an insurance claim against the State is some kind of victimless crime. Nothing could be further from the truth. Any lawsuit is ultimately a lawsuit taken against the ordinary taxpayer who must inevitably fund the outcome, whether through taxation, increased insurance premia or increased prices.
The overall implications for a large payout on Army hearing loss claims will cause major problems for the Defence Forces if it is not contained. The Defence budget cannot possibly escape being seriously eroded if a large amount of money continues to be paid out in compensation and this will have a devastating effect on the ongoing plans for the reorganisation and re-equipment of the Defence Forces.
The cost of compensation claims has to be within reasonable limits in the interest of equity and fair play to everyone. This Bill is the Government's response to a very difficult situation. I am very grateful for the full measure of cross-party support which the Bill received in the Dáil and I hope it will receive the same measure of support in this House. Before dealing with the merits of the Bill, I wish to give a short background to the record of the Defence Forces in protecting soldiers' hearing. This matter has been the subject of very unfair criticism and needs to be addressed.
Medical awareness of the potential hazard to hearing posed by noise has evolved gradually. In 1952, knowledge was very limited compared to today. At the time the equipment for the measurement of sound levels was primitive compared to modern standards. During the 1960s considerable research was carried out in Britain and America and gradually a clearer picture emerged.
However, it was not until 1975 that detailed regulations for the protection of industrial workers in Ireland were made under the Factories Act. In this context, the response of the Defence Forces in issuing ear plugs to all personnel in the early 1970s was well ahead of the practice elsewhere in Ireland and only slightly behind military practice in the US and Britain. Some 81,000 sets of Sonex ear defenders were issued in the 1970s and early 1980s. I should reiterate this point because it is extremely relevant. The Defence Forces on their own initiative were buying and issuing tens of thousands of ear plugs before the question of hearing protection was meaningfully addressed in regulations covering other Irish employers.
The ear plugs in question were similar to those on issue to the British Army — the best available at the time. In truth, they compare poorly with modern ear defenders. There were problems fitting them and personnel found them uncomfortable to wear; it appears their usage was unpopular. In conformity with the practice of the time, it was left to each individual to follow advice and wear the plugs. It would appear now that many decided to ignore the safety instructions and chose not to. However, I would emphasise that similar problems were encountered elsewhere. The plugs in question were products of their time, reflecting the position that, even as late as the 1970s, awareness of the hazard posed by noise was still evolving.
However, long before any litigation commenced, and long before any of the alleged injuries came to light, better plugs were developed and issued and a stricter regime of training and enforcement introduced. Once again the Defence Forces led the way in Ireland in introducing a comprehensive hearing conservation system in 1987 — two years before the health and safety legislation addressed the question. Although the tidal wave of compensation claims was then completely unforeseen, it is important to note that without any compulsion from outside regulators, before any legislative requirement and in advance of civilian employers generally, a major reform was undertaken by the Defence Forces on their own initiative resulting in a comprehensive regime which has subsequently withstood challenge in the courts.
In summary, the hearing conservation measures adopted by the Defence Forces were well ahead of practice generally in civilian work forces in Ireland and only slightly behind the leading armies of the world. I hope that, from the foregoing, it will be clear to Senators why I reject any attempt to smear the Army's record in health and safety. The truth is that, however the measures taken may appear now when the overall concept of health and safety in the workplace is so much more advanced, they represented the best available at the time and a genuine attempt to take all necessary care of the health and hearing of soldiers.
The obvious question is why are the claims succeeding in the courts. To defend the claims successfully, it is necessary to be able to prove in the case of each and every named individual that he was issued with plugs and wore them every time he fired on a rifle range. These records simply do not exist. Hindsight is a great thing and there was never any expectation 20 or 30 years ago that the current dilemma of compensation cases would unfold on such a massive scale. There is a clear difference between being negligent and being unable to produce records to defend oneself due to the passage of time.
The problem facing the State is that the courts have awarded large damages for levels of hearing loss which in other jurisdictions would not be considered a serious handicap and which would attract little or no damages. It is the high level of court awards, combined with the large number of existing and potential claimants, which could give rise to a huge bill for the Exchequer. The non-acceptance in the courts of international systems for the assessment of hearing disability did not help the situation and it was in this context that an expert group was set up by the Department of Health and Children and given the task of producing an Irish system for the assessment of hearing handicap.
The group reported at the beginning of April 1998. Its report, which is known as the Green Book, is a document which will be useful, not just to my Department but to all those dealing with hearing injuries in the area of personal injury litigation.
The Green Book has no legal standing and this was pointed out very clearly by different barristers during my recent appearance in the High Court. The courts have indicated that some form of legislative backing for the Green Book would be welcomed. The purpose of the Bill is to address this and to have judicial notice taken of the Green Book. This means that the Green Book acquires the status of evidence in court similar to that of other evidence before it. It is up to the courts to decide the merits of this evidence and to adjudicate accordingly.
It is important to point out that there is no directive element in this legislation. Accordingly, the question of interfering with the independence of the Judiciary does not arise. If the legislation has the desired effect it would be because the courts are persuaded by the rationale of the Green Book. The courts, under this legislative approach, will remain free to adopt whatever attitude they wish in dealing with this issue. Naturally, I hope that they will recognise the efforts which the Oireachtas is making to deal with the problem. If the level of damages does not reduce consequent on this legislation, the Government will have to examine the matter again.
I am on record as being 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 life is unaffected by a minimal hearing loss of a type which many of us without Army service have. I hope that the Green Book will command a wide degree of acceptance among the ENT profession in Ireland. I emphasise that it has not been developed with a view to trying to cut out potential claimants or to deprive those who have suffered a significant injury of their right to compensation. What it will do is put the injuries of those who have suffered a minor disability into their proper context against a scale on which others who have suffered the catastrophic total loss of hearing can be seen in a proper perspective.
Section 1 of the Bill defines hearing injury as including hearing loss and tinnitus. Tinnitus, of course, is a condition which involves noise in the ears which can be frequent or intermittent, loud or minimal. Everyone accepts it is impossible to measure and I draw the House's attention to expert opinion which suggests that it is only of serious significance in 5 per cent of hearing loss cases.
The definition of hearing loss is designed to reflect the individual's loss where previous readings are available or where these are not, from what would be considered normal for a person's age.
Section 2 of the Bill provides that the provisions of the Act shall apply to all proceedings at present before the courts. Thus the 10,500 claims already made will be covered by the Bill as well as future claims.
Section 3 is one of the key provisions of the Bill and provides that judicial notice shall be taken of the report in all proceedings before a court where damages are claimed for a personal injury arising from an injury to hearing.
Section 4 (1) provides that where a court is assessing the extent of personal injury arising from hearing loss it shall have regard to the formula contained in the report for translating hearing loss over a specified range of frequencies into a percentage hearing handicap or disability.
Section 4(2) provides that where a court is assessing the extent of a tinnitus injury it shall have regard to the classification method for tinnitus contained in the report.
Section 5 contains the Act's citation and provides also that it should come into operation on the day immediately following its enactment.
The Schedule to the Bill reproduces part of the report, specifically that containing the disability assessment formula. This involves averaging air conduction hearing thresholds at 500, 1,000, 2,000 and 4,000 Hertz. A low fence of 20 decibels is used over which a percentage loss of 1.25 per cent is imputed for each decibel loss. A weighting of four is applied to the better ear. There is provision for correction for age related hearing loss by reference to an attached table. An additional disability allowance for moderate or severe tinnitus is also provided.
I have been advised by the Attorney General that, because of the approach adopted in the Bill, effectively making its adoption by the courts a voluntary one, there are no constitutional difficulties with the Bill. The Bill does not purport to direct the Judiciary to do something. As of now we have no way of anticipating the effect of the Bill. It represents a minimalist approach. Any more radical approach is, by common consent, fraught with constitutional difficulties.
I hope that when this Bill becomes law 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 injuries suffered and, in consequence, the level of damages which should be awarded. To me, at least, it is clear that someone who has suffered a percentage hearing disability of up to 19 per cent and who, according to page 9 of the Green Book, can hear whispered speech is not in the category of serious injury. I would expect such a person not to receive £20,000 in damages, although I freely admit that this remains, under the Bill, a matter for the courts to decide. To put it another way, what level of damages is appropriate to someone who has suffered a 100 per cent hearing disability? I think we all agree that someone who has suffered this catastrophic type of injury should continue to receive the level of award which is made in the High Court at present. If we work back from this we must ask, by reference to this level, what type or level of award should be made to somebody suffering 4 or 5 per cent on the same scale? There is an issue of inner logic and consistency which must now be addressed by the courts arising from the scale and formula contained in this report.
Government is about compromise; a constant process of reconciling competing demands, and very often, conflicting rights. All the time, we are rationing an inadequate supply of resources over a wide range of requirements. People often seem to forget that each pound raised in taxation by the Government can only be spent once. There is never enough to go round, so great care is needed to ensure that essential needs are met. If, in allocating scarce resources, a particular group gets everything it wants, then some other group — perhaps more deserving — may get less than it needs. If the rights of one group are given total precedence, then the rights of another may, as a result, be totally ignored. Determining the common good is a never ending process of compromise and that is exactly what we are trying to do with the introduction of this Bill.
If it is the case that, as a consequence of this report and the Bill, the level of quantum in Army hearing loss cases falls to a reasonable level, I will waste no time in developing a compensation mechanism which will provide a fair and speedy solution to those who have suffered a significant hearing loss. I will do this without further recourse to the courts and in doing so will effect the savings in legal costs to which I referred earlier and remove a huge volume of litigation from the courts which, I accept, is threatening to overwhelm the personal injuries system there. I commend the Bill to the House.
I welcome the Minister. I sympathise with him on his mammoth task in trying to find an equitable solution to this appalling mess and give some protection to the taxpayer. This must be a unique Bill in many respects. It attempts to close the judicial door after the horse has bolted because, on the Minister's own admission, 1,431 cases, at a total cost of £45 million have now been settled without court hearings. I believe the State made it easy for this train of events to be set in motion and when it started to snowball there was no stopping it.
The Green Book, as it is known, will be the judicial bible for reliable assessment of hearing loss. The legislation requires the court to accept the Green Book as a means of assessment. It also begs the question whether the legislation is necessary. Is the Minister introducing this Bill in a desperate attempt to be seen to be doing something, however futile, to assuage the public anger which has arisen due to the failure to take measures to prevent a catastrophe of this magnitude? There is no doubt that there was negligence and wilful neglect in the past. People in high positions in the Army failed to ensure that proper procedures were in place to protect the health and safety of its members. Successive Ministers also failed to ensure that proper procedures were in place.
The Minister referred to the fact that much equipment was bought for the Army but it seems it went unused. The appropriate instructions were not given. The Army is not a body in which instructions or regulations are ignored generally. It is amazing that these regulations were ignored. Similar to other recent debacles, such as the banking scandals, the beef tribunal and the hepatitis C scandal, nobody at political or official level has been held accountable.
There is no doubt that many soldiers suffered lasting hearing impairment as a result of the negligent failure of the Defence Forces to implement the regulations on ear protection. Over 40 years ago there was medical evidence to suggest that repeated use of weapons without adequate ear protection was damaging to the individual. It would seem this advice was ignored by the Army authorities and the result of this negligence is manifest in many genuine cases of deafness. However, the courts have the problem of distinguishing between genuine and spurious claims. According to the Minister, the Green Book will be called on to perform miracles.
It is the right of the individual who feels he has a grievance to seek compensation. To date £45 million has been paid in compensation and it puts the wider issue in perspective. The process has been fuelled by the unhealthy and unethical activities of a minority of the legal profession. The Solicitors (Amendment) Act, 1992, which allowed solicitors to advertise for business is a contributory factor to the torrent of claims engulfing the Department of Defence and threatening to wipe out any surplus funds available to the Government for much needed infrastructural development. The taxpayers must stand by and watch a deluge of money pour out of the Government's coffers. The west is waiting for many worthwhile initiatives to be funded. The Western Development Commission has been waiting for funding for two years, although progress is being made on that front. However, it is disheartening to see public money going down the drain on such a scale.
The long-term effects on the Defence Forces will be interesting to note, particularly with regard to their morale. Morale is low at present and there is widespread public disbelief at what is happening. There has been a serious erosion of public sympathy for the Army. It is now the butt of more jokes than the proverbial Kerryman. This reflects badly on the Department and the Defence Forces, which is sad given the Army's great history of protecting lives in many parts of the world.
Many other issues are raised by this Bill. The question of constitutionality has been raised. However, I do not consider it fitting for Senators to make a judgment on that matter. We should not pre-empt any further decisions which may be made in that regard.
The Bill comes before the House at a time when a series of court cases is ongoing. Has the Minister examined any other long-term solutions? Perhaps the claims could be stretched over a ten or 15 year period and savings might be made in the Defence budget over such a period to help fund the cost of claims. I was glad to hear the Minister refer to the possibility of major cuts in the Defence budget to help meet the costs. Although necessary, such cuts are regrettable. There is no public appetite to increase spending on the Defence Forces. The Department's budget should be cut back substantially to make up for the losses of millions of pounds due to this debacle.
There are other areas where changes could be made. The transportation of money belonging to the banks is protected at the taxpayers' expense. It is common to see five or six Army vehicles escorting money vans into provincial towns. The banks make huge profits and should be in a position to fund the protection. It should not be left to the taxpayers who have the added burden of funding the claims being made against the Department. With the continuing development of the peace process a lower level of security may become necessary. In the past the public had been inclined to take a lenient view of many aspects of wastage and duplication of effort. However, the recent series of claims for compensation has changed the public's attitude.
Why is the legislation being brought forward at this point? Trends have developed and expectations are rising, fuelled by court awards which the Government deems excessive. The purpose of the Bill is to give the Green Book an official judicial role. Why was this not done earlier? If the Green Book is referred to by the courts in making an assessment on a claim and the amount of awards drops dramatically, is that just or equitable with regard to the cases that have already been settled? Is the Minister suggesting that when this new regime comes into force the Army gravy train will come to a halt? That will not be case.
The Minister should have acted much sooner. This is a typical Irish solution to an Irish problem. Such a problem would not arise in another country. For this reason, the Army deafness cases have produced much media comment, and the cartoonists are having a field day. The extent of the State's exposure to the claims being made and the amounts of money involved are mind boggling. This is reflected in the media attention in the cases, which lowers the morale of those in the Army and possibly denies the genuine claimants a platform for their cases.
The most unfortunate aspect of this Bill is that nobody can guarantee that it will achieve the desired result. It is an act of hope rather than firm legislation designed to achieve a specific result. There is no guarantee that subsequent awards made by the courts will be any different from those already made, as the Bill only obliges the courts to have regard to or to take notice of the Green Book as a basis for assessment. We are all aware of the standards established by the Green Book, yet a report in The Irish Times in April stated 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 remain between £1.5 and £2 billion.
This is the legacy of past negligence by the State. Enormous though the cost implications are, that must be accepted. The Judiciary's role must also be examined. As a general rule that body does not look kindly on the Oireachtas laying down ground rules. We all know that the compensation culture has led to trends in Ireland being different from other countries. It is strange that no case has been appealed to the Supreme Court. Does the State not think it worthwhile to appeal at least some of the decisions if it is worried about the extent of the claims? The Minister must now restore credibility to the system and restore morale in the Army. This matter also sends a signal to other State agencies and Departments to find loopholes in their own areas that could lead to a similar situation. The dangers are enormous and we do not appear to have any measures to protect the taxpayer from similar problems. We need only look at the cigarette companies in America, where billions of dollars in compensation are involved.
The Bill is an attempt at damage limitation. The determination of hearing damage is not an exact science, and it is difficult even for medical experts to quantify, as people hear what they want and can be deaf to what they do not want to hear. There is no standard assessment for hearing loss in Ireland and it was necessary to establish a working group of experts to devise such an assessment, as the Minister said. That working group's report should be at least considered by the courts when evaluating claims even if it is not accepted. There is nothing in the Bill to stop the courts from taking other standards into consideration.
The Minister said in the Dáil that:
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. 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.
The following statement from the Minister is vital:
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.
disability will be eligible. It seems that the Government has something else in the pipeline if this legislation fails. Such a measure should now be brought forward. The Minister's statement implies that this Bill will not achieve its desired aim and that the Government has contingency plans in mind. Those plans should be brought forward sooner rather than later.
I commend and congratulate the Minister for the efforts he is making to solve this problem. The taxpayer has been saddled with this mammoth mess, and it will have to be solved.
Ba mhaith liom fáilte a chur roimh an Aire agus comhghairdeas a ghabháil leis as ucht an obair atá déanta aige. As regards a remark by Senator Caffrey, deafness is not a joke — Kerry, Army or otherwise. It is a serious matter. In bringing forward this legislation the Minister is treating the matter seriously.
Since taking office the Minister has taken the problem of Army hearing loss claims by the scruff of the neck and is dealing with the matter in a clear and decisive manner by introducing this legislation. He has decided not to make comparisons with the record of the previous Government and, in the main, I intend to follow that line. However, Senator Caffrey is being reactive rather than proactive like the Minister.
It is also clear that the Minister's approach has brought a new dynamic to the situation. He is to be congratulated for facing up to a difficult problem. He is not indulging in procrastination which would not serve the welfare of the country or the Army, some of whose members have suffered serious hearing injury. Most of the claims are genuine. This is a short Bill and I would refute Senator Caffrey's comments that it has taken up a lot of time in both Houses. That is not true in comparison to the time taken to deal with other legislation.
This is the second initiative taken in recent months to address the problem of Army compensation claims. The Minister has also taken ambulance-chasing solicitors to task. The Government has decided to take action to curb solicitor advertising which has played a major role in driving the situation. It must be emphasised that the overwhelming majority of the legal profession did not condone or engage in such advertising. I pay tribute to the Law Society which has responded positively and constructively to the Minister's changes. A new, more sensible regime is to be put in place for which I congratulate the Law Society and the Minister.
The Bill has a number of positive attributes. It has been carefully framed to preserve the independence of the courts in hearing individual cases. It has also been devised to strike a fair balance between the legitimate rights of plaintiffs and those of defendants in personal injury cases. Most importantly, the Bill seeks to introduce an independent, scientific standard to guide the courts in an area in which there has been confusion and conflicting voices. It sets out to achieve this by interfering as little as possible with the broader legal system and making only those changes necessary to achieve a reasonable objective. Most importantly, the Bill opens the possibility of a major saving for the Exchequer should the Judiciary take advantage of this opportunity to bring order to the question of settling hearing compensation claims.
I would like to provide some of the background to this problem. Over 12,000 claims alleging hearing impairment from exposure to gunfire have been initiated by former and current members of the Defence Forces against the Minister for Defence and the State, and new cases are still arriving. The avalanche of claims began in 1992 when 49 claims were received and the number has multiplied each year since. The basis of most claims is that the individual was, in the course of duty, exposed to gunfire, usually at range practice, whether with small arms, rifles, artillery or other activities associated with their duties.
It is important to place the protective measures employed at the time in the context of the best known practice. There is nothing to suggest that the ear protection afforded to personnel was less effective than that given to soldiers in other contemporary armies. During the 1970s and 1980s, over 80,000 sets of ear plugs were purchased. However, because of the passage of time, it is virtually impossible to establish in evidence whether hearing protection was provided to a given individual or that a system of checking was in place to ensure that it was used on each occasion during firing. As a result, it has proved impossible to successfully defend against claims of negligence.
Pressure has been exerted to cut losses and accede liability in all cases. This might save legal costs but compensation levels are so high that the final costs could be astronomical. Moreover, a full concession of liability would attract more claims. For this reason, this approach was rejected by the previous Government.
The current strategy endorsed in March 1997 and re-endorsed on 25 November by the present Government has been to run select cases in the courts with a view to reducing the level of damages. These were cases where the handicap was low or non-existent. This strategy has had some success with a small number of cases dismissed and reduced damages in a number of others. This has the effect of depressing settlement levels.
The average settlement has decreased from £35,000 in 1994 to £25,000 in 1997. At present it is about £20,000. The total amount paid by the Department in each of the past five years is as follows: £251,000 in 1993; £666,000 in 1994; £1,399,000 in 1995; £5,426,000 in 1996 and £34,762,000 in 1997. By 26 March 1998 settlements had been reached in 1,431 cases and court awards following hearings had been made in 91 cases. A further 64 cases were successfully defended or withdrawn. Compensation of £36,440,000 and plaintiff costs of £8,573,000 have been paid in respect of 1,586 cases finalised.
As regards assessment of handicap, the State has contended in court that high-tone hearing loss is of a moderate degree and does not occasion any significant handicap in social or working life. Although this view is widely accepted internationally, the Irish courts have taken a different view. They have held that where an individual suffered any deviation from perfect hearing, he/she is entitled to compensation. I would agree that the claim is justified if the injury is the result of the performance of their duties in the Army. The American and British medical authorities have developed systems and formulas to translate hearing loss into a percentage handicap but these assessment systems have not found favour in the Irish courts. At the suggestion of the Judiciary, the Minister has introduced legislation.
An Irish assessment system drawn up by Irish experts — the Green Book — has just become available. The legislation is being introduced which will require the courts to have regard for this new system. The Irish standard for assessing hearing disability is more favourable to plaintiffs than the British Black Book or the American standard and I trust the Minister has no difficulty with that. He had no involvement in the preparation of the Green Book and I am happy to accept the wise judgment of those who, based on their clinical experience, produced this publication.
I am not interested in trying to assemble what might have happened if other steps had been taken. This is not the time to falter because it is never too late to do the right thing. Perhaps different actions could have been taken earlier but we have now moved to a stage where we must wait to see how the courts will react to this publication. We look forward to a more equitable system emerging which will deal with all applicants with a serious hearing injury in the manner the High Court has dealt with them, which will pay appropriate compensation to those with minor hearing injuries and which will thus uphold everyone's rights, including the taxpayers'. There is nothing in this legislation to prevent any group from submitting further evidence in court which it considers appropriate to the circumstances. However, since we have been waiting a considerable time to process a distinctive Irish standard with well known experts, I consider it unlikely that this will take place.
Much reference was made to tinnitus which is a separate but related matter of ringing or buzzing in the ears. It can be an extremely aggravating and distressing condition, manifesting itself in different individuals from a low degree of background noise in the ear to a persistent and often deafening roar. The difficulty with tinnitus as a condition is that it is impossible to objectively determine its existence or to measure it. It can be said that tinnitus and the degree of severity to which it exists is normally associated with a degree of hearing loss. The greater the degree of hearing loss, the greater the likelihood of tinnitus. Conversely, it would be unusual to find tinnitus in a person who has no hearing loss. This is not an absolute rule as tinnitus can be caused by factors other than noise induced hearing loss, such as ear infection or hypertension, otherwise known as blood pressure. Notwithstanding the fact that in international experience only a minority of noise induced hearing loss cases have serious tinnitus, the condition is claimed in most cases made against the Department of Defence. The Green Book sets out the procedures for the assessment of tinnitus in cases of noise induced hearing loss.
Much has been said about the publicity attending this saga. I would have preferred if much of it had never taken place. However, there is no avoiding the media when they want to address questions exercising the public mind. They have agitated the minds of the courts. There has been a significant reduction in the quantum, and on foot of the Green Book, we look forward to a more reasonable outcome in cases involving little or no injury.
I want to see genuine applicants dealt with quickly and comprehensively. The Minister stated publicly that he will be their friend and defender. I am proud to be a member of that legion. However, it must be remembered that no defence of genuine applicants with serious injuries attributable to their service in the Defence Forces would be possible if the situation which existed until now was allowed continue. Two things would have happened in that case: those with genuine injuries would receive less than that to which they were entitled and those with little or no injury would receive more. That is hardly fair. The money must be found for those who have suffered hearing loss. Like the Minister, I defend to the last the right of individual soldiers and others in society to fully exercise their constitutional right where they feel they have sustained a personal injury. While the Minister is trying to achieve a balance, there are inevitably people who, when they heard access to the courts was available in matters of this kind, availed of it. I regret that they have been supported by a minority of the legal profession. I am pleased that many others involved are genuine.
It is important to point out that the Army has had a proud record of national and international service on behalf of the Irish people since the foundation of the State. It has recently been engaged in international duties in the former Yugoslavia, Angola, Somalia and Rwanda. The Army rightfully won international acclaim and plaudits for its efforts and endeavours on these overseas missions. Anyone who watched "The Pat Kenny Show"— and I am pleased to say I did — will clearly understand why they have been described as our greatest ambassadors. At any given time up to 600 Irish soldiers are based in Lebanon as well as in Cyprus. The Irish soldiers in 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. The soldiers have been professional at all times in their duties at home and abroad and this has been recognised by the United Nations and other key international observers. This explains the high regard for Army personnel overseas. I hope the debate on deafness claims does not have the effect of lowering the expectations and respect of people for the Army. It does not lower mine; I retain for it the highest regard and respect.
The Army is going through fundamental change which is a separate issue from that of deafness claims. Ever since the Gleeson report was commissioned to investigate the future structure of the Army, it is clear it would have to modernise and it is doing that. PDFORRA and RACO, which represent the soldiers and officers, have had to negotiate change within their remit of responsibility over the past five years, and this has 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, should not be affected by the debate on the pending deafness claims.
I am pleased that there is an Army barracks in Mullingar, a town which I have served as town commissioner, county councillor and now as a Member of the Oireachtas. The Army personnel there have made a great contribution to the community in the context of aiding the civic authority in times of flooding, regulating crowds and other matters. They have also played a pivotal role in sporting organisations, such as the Gaelic Athletic Association and the Community Games, and in community groups, such as residents' associations and environmental groups. I ask the Minister to retain the barracks in Mullingar and to upgrade it and I urge him to continue the recruitment.
When dealing with any of the numerous difficulties which confront a Government in office, the easiest job is to sit back and ask questions and be like the proverbial iománaí ar an gclaí who is always the best but never involved. The ability to bask in the intellectual luxury of Opposition is one of the few benefits of not being in Government. There is a much harder job to be done than asking questions and that is coming up with the answers to problems. I ask those who have criticisms to make whether they would rather that this legislation was not enacted. Responsibility must be worn as a garb whatever the prevailing climactic conditions. I commend the Bill to the House.
I welcome the Minister to the House. I have a great deal of sympathy for him because, when he entered office, I presume he thought he would be marching with generals. Instead he has been consulting with otolaryngologists who are a nice group of people and with some of whom I work.
This is an important Bill but, like other Members, I cannot say whether it will be declared unconstitutional. We were one of the few western countries which did not have a system to calculate hearing loss. In view of the fact the courts would not accept the systems used in other countries, something had to be done. The Minister moved rapidly to set up the working group which produced the Green Book. I compliment the group on what it has done because it is a most readable and informative book.
We have been inclined to castigate ourselves for not moving earlier as regards establishing such standards and we could have done so a few years earlier but it is important to point out that developments in audiometry are fairly recent. While we have known for a long time that hearing loss could be noise induced, it is only in recent decades that we have made progress as regards scientific evaluation. Even now people say audiometry is not as exact a science as we would like. The difficulties with tinnitus are more considerable.
When the first recommendations of the European Community on environmental legislation involving air and noise pollution were produced in 1986, both were included in one book. The section relating to noise was very small and it was only in 1996 that a separate volume on noise pollution was produced. It shows rapid progress is being made in this area and we are trying to catch up, although we are not very far behind.
The Army is considered by some to have been extraordinarily slow in trying to protect its members from the damage which can be caused by artillery fire. It was first recognised after the Battle of Copenhagen in 1801 that cannon fire could cause deafness. One army officer was said to have become permanently deaf through supervising the cannon at that battle. While it has been known for a long time, other armies were having as much difficulty dealing with this problem as ours. If we look at the records of the American and British armies, we will note we are not very far behind in trying to bring in protection for soldiers, although we should have been faster.
It is important to judge the protection given and the efforts made to protect soldiers by what was happening internationally at the time. We must remember a large number of these claims date from the 1970s and I found little information about the protection of Army personnel hearing in the 1970s, not only here but elsewhere. Greater advances were made in the 1980s so perhaps we should have moved faster. We have not been good about health and safety legislation generally and it is possible the Army moved a little faster than other industries. The Health and Safety Authority's regulations on noise were published in May 1991. When we look at the difficulties enforcing legislation among the public, I presume the Army would have taken orders more readily on what it should do. This is a difficult area.
I am sure I am not the only one who has seen men working with pneumatic drills, without ear protection, on the streets of Dublin. It is not that legislation has not been enacted by the Oireachtas or that those involved in the management of these industries have not said protection should be there, often it is difficult to get individuals to take proper care of their health. The serious impact of noise has been recognised for a long time but the methods used to reduce it and prevent serious noise induced hearing loss problems occurring are recent.
Prior to 1991 the Army had a whisper test only, as far as I can ascertain, for those getting into the service. I imagine that was the same in other industries. This, of course, is not an exact test. From 1991 to 1997, the otoscope was used. This is a hand held instrument which indicates the pure tones the person being tested is missing and it is not that accurate. From 1997, a more serious attempt was made to test people entering the Army and we are in line with European standards.
The Green Book points to a matter of which we should not lose sight. It states that hearing impairment or loss and hearing disability are two different things. I do not believe we have taken enough care in this regard. The book states that hearing impairment or loss is defined as the amount by which an individual's hearing threshold level changes for the worst as a result of some adverse influence. It implies some disorder of the structure or functions of the hearing apparatus and is usually measured in decibels. It goes on to explain that it is usually irreversible and permanent but it points out that hearing loss can be brought about by several things, including aging, infections, trauma, pressure changes, poor blood supply, noise and toxic chemicals. It also talks about hearing disability which is defined by the World Health Organisation as any restriction or lack resulting from an impairment of ability to perform an activity in the manner or within the range considered normal for a human being. A hearing disability, therefore, is the inability to hear everyday sounds in either quiet or noisy backgrounds in a manner which is considered to be normal for humans.
It is important to note age related hearing loss is a factor in all these cases. Like Senator Glynn I am sure the majority of cases are genuine. However, we must hope that when looking at these cases, a peer comparison in audiometry is being undertaken and that not only audiometry in cases between the ages of 18 and 30, the usual time when standards for adults are taken, is being used. This is important and perhaps the Minister will clarify that when replying. Standards are very difficult to set. Another factor which causes difficulties is that people may have identical audiograms but different amounts of disability. The fact a person has hearing loss does not necessarily mean they will have the same amount of disability.
Another factor to which I do not believe anyone has referred is that hearing disability and loss is causing many of these soldiers problems in employment. The first place in which they are facing problems is in the Army. They are being discriminated against in the Army as regards service abroad and I gather this is been a great bone of contention. We should pay attention to the fact these soldiers face problems even within the Army. As regards employment in the private sector, if there is a possibility of them suffering further noise induced hearing loss, they face problems.
Under the 1987 European law 188, in industries where there is noise, individual and regular tests must be undertaken. As there is an initial assessment, there is a baseline for when a person enters the industry. I gather — like everyone else I have only anecdotal evidence — there is a problem for those who have some noise induced hearing loss getting employment in these industries. Many industries have a noise component and it may mean these soldiers are being discriminated against in the private sector as well; this is unfortunate. Unless the industries into which they are entering are noisy, there should be no deterioration in their hearing. Whether noise is intermittent or permanent, there is no further deterioration in a person's hearing once there is a cessation of that noise. This should be pointed out to the Army and the private sector. If they are dealing with individuals who have some level of noise induced hearing loss, they should not make life even more difficult for them by discriminating against them in employment.
I hope the courts will take cognisance of the Green Book because it is difficult to state how much difference it makes to people if, for example, they have trouble with conversations in crowded rooms. It is difficult to say how much that can be described as a disability and how much it is worth. As the Minister said, if one equates a difficulty with hearing conversations in crowded rooms with a compensation payment of £30,000 or £40,000, how will permanent hearing loss be described? The sums could be astronomical. I understand the Judiciary's desire to give people adequate compensation but it is interesting to note that, while there has been an increase in the number of claims, the amounts of compensation awarded have reduced.
The compensation culture in Ireland has been mentioned. As a member of the medical profession who must pay £7,000 a year in medical defence union fees for protection against litigation, I am sympathetic to views expressed on this subject. However, I am lucky because I am physician. Surgeons, obstetricians, ophthalmologists and others must pay fees ranging from £20,000 to £35,000 a year and for those in public and private practice, 80 per cent is paid by the State. As the Minister is aware, this is a huge charge on the Department of Health and Children. It is unfortunate that there is a higher level of litigation in Ireland compared to anywhere else. The fees I must pay are equivalent to the sums my colleagues in the United States of America pay in dollars. The awards for personal injuries in Ireland, irrespective of how they are sustained, are consistently higher than the sums awarded in the United Kingdom. I cannot explain this phenomenon. It was hoped and expected when jury awards were abolished that the level of awards would reduce. However, that has not happened and in some cases they have increased.
A fascinating exchange took place recently when Mr. Harry Whelehan, late of this parish, addressed the annual general meeting of the Irish Medical Organisation. He said the reason for the large claims was entirely due to the medical profession. I was not present for his speech but the reports state he intimated that bogus claims were being initiated by bogus patients getting dubious medical reports. Mr. Whelehan's comments were interesting because one does not ab initio produce a medical report. A doctor must get a letter from a solicitor asking for a medical report.
I have been told that some lawyers are advertising in the British press in case any former soldiers have not been back to Ireland recently and have not heard the good news that it may be possible for them to make a claim. However, there is no point complaining about the Judiciary, the medical profession or the lawyers involved in litigation. Mr. Harry Whelehan should know this because he is a barrister who is involved in a major way in personal injuries litigation.
It is not possible to have a subjective measurement of tinnitus, which is ringing in the ears. A large percentage of the population — the figures vary from 5 per cent to 35 per cent — has intermittent or permanent tinnitus. I presume the figures reflect the methodology in terms of whether occasional bouts or permanent cases of tinnitus were included. Senator Glynn mentioned that, internationally, tinnitus is present in 50 per cent of noise related hearing loss cases. I do not want PDFORRA to descend on me but I understand that tinnitus is mentioned as a reason for compensation in approximately 90 per cent of the Army claims. I cannot state that the soldiers do not have tinnitus; nobody can say that is not the case. It is similar to cases of low back pain which could be the next source of compensation claims.
I feel it already.
That is whiplash.
I hope the courts will take great notice of the section in the Green Book relating to clinical assessment. It shows how detailed and careful one must be in dealing with these cases. It not simply a matter of getting audiometry reports on soldiers and considering compensation. A careful history must be taken because one must find out if there could have been any other cause, such as ear infections, trauma, ototoxic drugs, genetic reasons, aging or other diseases which could result in hearing loss. Since the compensation involved is hugely expensive for the State, the State must make the maximum effort to ensure that it has prepared a proper defence if it considers a case should be fought.
The Green Book states in relation to audiometry that there are intrinsic variables which could potentially affect the measurement of audiometry sensitivity. These include intelligence, motivation, attention, fatigue, judgment criteria, familiarity with procedure, comprehension of instructions, financial motivation, state of health and real fluctuation in hearing sensitivity, etc. The tests must be prepared and examined carefully. We do not want the current caricature of soldiers feigning deafness and claming compensation to be perpetuated. It is a slur on the Army which should not exist and genuine cases of deafness and tinnitus should be compensated.
I wondered why some of the initial cases which involved high levels of compensation were not appealed to the Supreme Court. Why was the introduction of a hearing disability pension instead of lump sums not considered for such cases? This could have been considered in this area; perhaps it is not too late to introduce such a pension now. The soldiers may have grave difficulties in terms of discrimination in the Army if they are not allowed to serve abroad which leads to higher remuneration or if they have difficulty gaining employment in civilian areas which may involve noise. Giving them a hearing disability pension would be much better than giving them lump sums. I ask the Minister to cover this aspect in his reply.
I hope the Judiciary will accept the hearing disability assessment booklet known as the Green Book. It can only be suggested to the Judiciary that this is a good idea, but the booklet is most comprehensive and extremely understandable. I commend those who put it together and the Minister for their work in this area.
Cuirim fáilte roimh an Aire agus molaim an obair atá déanta aige ar an ábhar tábhachtach seo. The Minister is to be commended for introducing this legislation and particularly so because he is making a valiant and effective effort to sort out a mess which was not of his making. There has been inaction, ineffective action and pure bungling on this question for a number of years. The first claims were lodged in 1992. There were 49 claims in that year and the number has increased dramatically as has the exposure of the State to claims for significant sums of money. The matter has been dealt with ineffectively by several Governments.
The courts' refusal to accept an international standard for the assessment of hearing loss was a central difficulty. An independent scientific standard was required and this has, thankfully, been made available with the publication of the Green Book. It has taken longer than it should to produce this domestic standard which, one hopes, will be of guidance to the courts and which the courts will take into account when reaching decisions. The Minister has made an effective effort to deal with this problem. The legislation is to be welcomed. I hope it will lead to a decline in claims, that legitimate claims will be met and that people who have suffered genuine and irreparable damage to their hearing will be compensated where there is evidence of negligence on the part of the State.
Members of the Defence Forces are no different from other citizens. They are entitled to the protection of the law and must be able to resort to the courts if their rights are infringed or they suffer damage through negligence. We are, however, in the midst of a compensation culture. Every pothole, paving stone and farm fence is regarded as a potential source of litigation and compensation. It would be unrealistic to expect that members of the Defence Forces would be less exposed to the pressure of this culture than others.
We must also be conscious of our obligations to the tapayers. We must ensure that their money is protected and well spent and that they are not exposed to unnecessary and injudicious claims. It is to balance those obligations that this legislation has been brought before us. It represents a degree of common sense, although it is often said that common sense is very uncommon.
We are rapidly approaching the point where we must consider a constitutional amendment or some such device to deal with the compensation culture. Senator Henry has referred to the size of compensation awards made by the courts which by international standards are very high. It is appropriate that the State demand certain obligations and responsibilities of its citizens. It requires to be said that many members of the Defence Forces who suffered hearing loss have declined to proceed through the courts to recover damages. It has not often been stated that some members of the Defence Forces have that sense of civic responsibility and public service which has stopped them from making claims which others, irresponsibly and less prudently, have pursued.
Only a tiny proportion of cases have been defended successfully and this has an implication for taxpayers. Figures ranging from £5 billion down to more modest, if highly significant, sums have been bandied about. I am subject to correction but it has been calculated that, for every 10,000 claims a figure of the order of £350 million would arise in liability for the State. During the past week there has been considerable fuss about the £450 million cost of the Luas project. There has been far less fuss about the potential cost of compensation claims which could be of the same order of magnitude. There is a certain inconsistency here.
This controversy also has an implication for the Defence Forces. The Price Waterhouse report and the Efficiency Audit Group proposed savings of approximately £15 million per year. These savings are being implemented and it is proposed that half of the money saved should be used within the armed service. In my view, the savings should remain within the Defence Forces. It is obvious that if the Minister for Finance wants to recover some of the money spent on compensation claims he will first seek to do so within the Defence budget itself. We all know the effect that financial cuts have had on morale in the Defence Forces. If the Defence Forces' budget is decimated as a result of compensation claims morale will decline even further. The MRBI survey revealed that 93 per cent of the members of the armed forces had low or very low morale. The question arises whether low morale is the result of the hearing claims or the hearing claims are a reflection of low morale. I do not know the answer to that question although, as someone who lives close to the Curragh and among Army people, I have a sense that levels of morale were low before the current escalation of compensation claims.
Any group in society will be sensitive to remarks passed at social functions or to having their legs pulled continually. The Minister will agree that even politicians occasionally succumb to the leg pulling to which we are subjected.
We are only popular at election time.
This is true but of course the Minister can confirm that more accurately than I can. People of very high calibre who had a deep sense of public service and responsibility to the State have been subjected to the constant repetition of the same funny stories. There is no doubt that this had an effect on them.
There was a possibility that the potential existed for a further 10,000 claims and a further £350 million of Exchequer funding would have been required to meet them. That problem had to be addressed and the Minister addressed it effectively. The small amount of money which might have been recovered from the Defence budget would not have come close to paying the claims involved. The obvious alternatives were to raise taxation and invade other areas of public spending; they are alternatives with which we could have been confronted if the situation had been allowed to deteriorate into a Domesday one. In addition to the jibes with which serving members of the Army had to contend, they were subjected to a propaganda campaign which sought to discredit them and that compounded the low morale levels.
The Minister stated that the Irish Defence Forces led the way in the development and implementation of safety standards. That may well be the case but I do not think Ireland was quite as effective as some other countries, particularly the UK, in implementing some of these measures. As I understand it, ear plugs were first issued here in the early 1970s, seven years after they were introduced in the UK. That was somewhat lackadaisical.
The original regulations would be quite amusing if they were not so tragic. General regulation order No. 43 of 1955 on hearing regulations urged officers in charge of firing crews to ensure that ear protection was available to all personnel in the vicinity of any blasts where weapons creating a severe blast were fired. It went on to state that cotton wool would be issued to those who required it, a measure which may have been quite laudatory and progressive at the time. However, the regulation also stated that when cotton wool was used by firing crew members, officers in charge of firing were to ensure that verbal orders were heard by all. There seems to be a certain inconsistency there and the people who drafted those regulations must have been aware of that.
Over a period, standards were improved and ear plugs were issued. Senator Henry referred to the example of people operating jackhammers without wearing ear protection. I suppose one should be able to choose whether to wear ear protection. I can understand that some Army personnel would not want to wear ear protectors when firing rifles but that is an argument for another day.
There has been a tremendous degree of hindsight in regard to this matter and I reject the statement made by a Deputy that it was merely a scam. Some members of the Defence Forces certainly regarded the possibility of making claims in an opportunistic manner but many of them also acted responsibly.
Reference is made in the legislation to judicial notice. That is very important. The Minister stated that no instruction or direction would be given to the courts although he hoped they would be persuaded by the rationale outlined in the Green Book and guided by common sense.
I referred to the foot dragging which occurred in regard to this issue. The first claims were made in 1992 when 49 claims were instigated. Military personnel were not, however, subjected to an audiogram until 1996. There is an apocryphal story that sound proof booths were installed in the Curragh Camp for audiometry purposes but that it took a considerable time before the money could be found to allow a technician to carry out an examination of them to ensure they met the required standards. If that is true, someone has something to answer for. No coherent strategy was developed until 1997 although advice was received from the Attorney General in February 1994.
I hope the White Paper on the Defence Forces will be published as soon as possible. I am aware that the Minister has dealt with this matter in answers to Dáil questions. The White Paper would be very helpful in restoring morale. There is also a question of whether people with hearing damage can expect their promotion prospects to be undiminished. Senator Henry referred to that issue in regard to the Army and other types of employment.
In his concluding remarks, the Minister stated he would not waste any time developing a compensation mechanism which would provide a fair and speedy solution for those who had suffered a significant hearing loss and that he would do so without having further recourse to the courts. That, he stated, would effect savings in legal costs and remove a huge volume of litigation from the courts which was proving threatening to the personal injuries system. I would be grateful if the Minister could elaborate on those comments. Calls have been made for a tribunal on this issue and for an admission of liability on the part of the State. In the spring issue of RACO's magazine, Signal, the editorial referred to the need for a more efficient and effective mechanism to deal with claims to be found as a matter of urgency. I hope the Minister will respond to that call in his closing remarks.
I welcome the legislation and I hope it will have a speedy passage through the House. I hope it will have the effect of bringing some coherence to this issue which has dragged on for more than five years.
The situation which has evolved in regard to Army compensation claims has had a certain damaging effect on the Defence Forces. I am also sure it has occupied far too much of the Minister's time when he could have been planning for the future and developing other aspects of the Army. For example, in the light of developments in Northern Ireland, I am sure the Army could have a valuable peace-keeping role there.
The debt we all owe to members of the Defence Forces for their work over the years should not be forgotten, particularly in regard to their peace keeping duties throughout the world. The Army has also played an important role in Ireland as back-up to the Garda and so on. It is unfortunate that over the past number of years, members of the forces have been subjected to various disparaging stories and jokes.
There is no doubt that a compensation culture has evolved in Ireland . Years ago if one fell or slipped in a supermarket or on a road, one got up as quickly as possible and hoped nobody has witnessed the event. Now, people lie there calculating what such an occurrence might be worth to them.
A number of factors have resulted in the emergence of the compensation culture. The legal profession, of which I am a member, and the insurance industry are partly to blame. Sufficient investigations are not carried out in various cases. I heard a story recently where a young lady ran into another car and caused £50 worth of damage. A couple of years later she got a letter stating that her no claims bonus had been increased. She subsequently found out that the person she had hit had claimed £17,000. As someone who has worked for plaintiffs and defendants I know that accidents must be better investigated. There are rogues on all sides, whether it is the plaintiff, defendant, lawyer or doctor, and it is often difficult to prove if a person is suffering from back pain or a sore neck. They can be asked to do various exercises but if a patient tells untruths, it is not easy to prove otherwise.
Certain members of the legal profession have a case to answer in relation to the compensation and inquiry cultures. One wonders what came from some of the recent inquiries other than large solicitors' and barristers' bills which must be paid by the State. There are lessons to be learned from these inquiries and compensation claims.
I appreciate what the Minister is trying to do in this legislation. However, it is difficult to know how effective it will be. His recent appearance in the Four Courts where he seems to have been put on a spit was well publicised. There must be a more realistic approach to claims both by the Judiciary and the Department of Defence. It must be made clear that those who have suffered deserve compensation commensurate with the loss incurred but that it is not open season and the Department is not funding a house extension, a second car or a Caribbean tour. The Minister must consider all the facts.
I ask the Minister to indicate in his reply if the passing of this Bill means that some cases will go ahead. These cases are different from accident or whiplash cases and the rebuttal of proof is on the Minister and his Department. Is the Minister saying these cases will go ahead and that cognisance will be taken after a review of what claims or damages are agreed? As in the hepatitis C case, some formula should be introduced to save the taxpayers' money.
Perhaps the Minister could indicate how many cases have been taken to date, if they have gone to a full hearing, how many have been successfully defended and how many have been settled in or out of court. It appears that some members of the legal profession have been issuing so-called invitations to people — perhaps ambulance chasing is too strong a term — to re-examine their hearing with a view to taking a case against the Department. I ask the Minister to give us an update on how much has been paid out to date, how many cases, if any, have been settled prior to going to court and how many have gone to a full hearing. Is the Minister happy with the medical and legal personnel working on his and the Department's behalf? Has enough consideration been given to this aspect?
I hope these matters are resolved as expeditiously as possible so that the Minister can concentrate on formulating plans to bring the Army into the next century and to ensuring it has proper facilities and its conditions are adequate. There were times in the past when the Army was the poor sister of the Defence Forces and its conditions were not up to scratch. The Army showjumping team has been a tremendous success over the years and it has put the country on the showjumping map. If there is any money left over after paying these claims, the Minister might ensure that the quality and quantity of thoroughbred horses will continue to be available to the team.
I have reservations about aspects of this Bill. The Judiciary must be realistic. This is not a handout of thousands of pounds to every member of the Defence Forces. If members have suffered what we consider to be reasonable or long-term hearing loss, they deserve to be compensated. It should not be used a gravy train for some members, aided and abetted by other professions.
Ba mhaith liom fáilte a chur roimh an aire agus comhghairdeas a ghabháil leis toisc an méid atá déanta aige leis an chás mhór seo. I welcome the Minister's stance on this matter. There are genuine claims to be dealt with.
I am reluctant to speak on this Bill as I suffer from tinnitus and deafness. An earpiece has been provided for me through which I can hear the business of the House. I cannot say I am deaf. If a car started out in the car park now, I would hear it as well as anyone else. I can hear sounds from any distance and individual Senators speaking to me. However, when there is another noise in the vicinity, such as someone talking next to me or music in the background, it is like I am hearing a new language. I can hear the words but they do not make sense in my head.
They sometimes do not make sense to those who are speaking them.
I do not know where this problem begins or ends. I could claim from the Army because in 1956 I was involved in firing grenades. I was told to keep back from the gas escape. I did not do so and there was a loud explosion when the grenade was fired from the gun. My balance was gone after that and I had a noise in my ear. I went to the doctor, it cleared up after two or three weeks and everything seemed to go back to normal. I could go to court, with witnesses and the doctor, and claim that is why I have this problem now. However, my brother and sister were not there that day and they have the same problem. My mother was not there, and all her life we had to shout at her because she was deaf. The problem is hereditary and goes back to my mother's side.
Everybody here seems to be wearing glasses. Something must have damaged our sight over the years. Can we find someone to blame for this? Perhaps the sun was too bright or perhaps the Minister went on a skiing holiday and did not wear the proper dark glasses. Can we sue someone for this? I had a triple bypass. Perhaps I can find somebody somewhere who is to blame for the hard work I did over the years. Perhaps I smoked and drank too much. There must be someone who can pay me for all this trouble.
It is from lifting those heavy fish.
The noise in discos is deafening. Can all those suffering from tinnitus or deafness sue those who run discos for causing their problem? Where will this end?
I spent 17 years fishing. The 250 horsepower diesel engine of a boat turned inches away from my feet for 12 hours every day, five or six days a week. This also contributed to my problem. Can I sue somebody in the fishing industry? The Minister for the Marine and Natural Resources might be a good bet to get some money.
My brother has a sawmill in Dingle and when I go there I wear earmuffs. The noise of the saw cutting through timber badly affects my ears and deafens me for a short time afterwards. Those working in the sawmill use earmuffs. However, as Senator Dardis said, it is important that one can hear orders when wearing them. In a sawmill, it is important that workers can hear the saw and judge whether it is overloaded. It is like driving a car. The Minister would not like to drive a car to Dublin and never hear the engine. He would not know whether it was labouring or if he needed to change gear. One has to hear these things.
Whenever I see a jackhammer being used I have to make a detour. If I did not I would suffer extra deafness for a day or two afterwards. I am not sure if what Senator Henry said about those who operate jackhammers not wearing ear protection is true — they wear them inside their ears.
I have great regard for the Army. I am proud of the certificate I have for my 11 years in the FCA which gave me an honourable discharge. I think of the grenade incident and the fact that soon after that my deafness started. However, I cannot say that was the cause of it and I never will. Everybody is jumping on this bandwagon. People need to be assessed.
There are those outside the Army who suffer from tinnitus and deafness and have never heard a shot fired or a bomb blast. What made them deaf? There are percentages of people who suffer from different ailments. Some people get arthritis or rheumatism while others do not. Will the compensation culture ever end? What about civilians who survive bomb blasts? Are they deaf? Will they get compensation?
I support the Minister's stance to the hilt. I am not against genuine cases being dealt with; in such circumstances blame should be laid at the door of the Minister and of those responsible and proper compensation should be paid. However, surely not all these thousands of people can have become deaf through their membership of the Defence Forces.
The Army has served us proudly, and it is honoured throughout the world. It is made up of a great bunch of people. It is ridiculous that advertisements should appear in newspapers to entice people to make a claim and to write to certain solicitors. That denigrates the legal profession and if medical people are saying the same they are just as bad.
This may have nothing to do with the Bill but I must complain about some of the things done by sound technicians on RTÉ. They interview politicians outside Leinster House and because there is a certain amount of traffic noise in the background I cannot hear a single word. On All-Ireland Final day, Michael Lyster, Enda Colleran and Pat Spillane shout at each other in Croke Park while the crowd drowns out their words. That may be all right for the Minister but none of it is heard by people who have the same problem as me. All RTÉ has to do is tone down the outside noise. Even people with good hearing may have difficulty hearing those items but people like Senator Farrell and me can take no pleasure from the games. Why do they put people in sound proof boxes if the window is left open? A small amount of background sound is enough — let us have the pleasure of listening to the commentary. RTÉ would do a good day's work if it took this advice in making documentaries and sports programmes.
I commend the Minister's work. I support the Bill, I hope it will be passed and that there will be no constitutional challenge because it will go a long way towards solving the problems.
Senator Fitzgerald has a great future in the courts if he would only avail of it. While he is there he might take a case against Fianna Fáil for putting him under such pressure as Government Whip.
I do not listen to half of them.
That is just as well. I welcome the Minister here on his first visit but I regret he is not bringing a happier message about the Army. This issue is of the utmost seriousness for the personnel involved and the taxpayer — the cost may run into billions of pounds before this is all over. Deputy Smith as the relevant Minister and we as legislators have a responsibility to ensure taxpayers' money is not wasted and that we distinguish between bogus and genuine applications for compensation.
The floodgates have opened and currently there are thousands of applications. Some of them are opportunistic or dubious and there have been many jokes and much black propaganda against the Army. However, some of the claims are undoubtedly genuine and the courts have upheld large numbers of them. The plaintiffs' health has been damaged in a significant number of cases. There are serious issues which must be addressed in regard to health and safety and how the Army conducted its business. The Minister said he would have liked to come here with a White Paper on future policy for the Army and that should be brought forward as early as possible in order to build up morale and to put in place codes of quality and best practice.
The other side of the coin is the Army's proud record of service at home and abroad. We have a fine, professional force and their record in Ireland and with the UN does not show a whinging or sponging element but an honourable record of service. It is against this background that we must consider these claims. Many speakers, including the Minister, mentioned the Army's role in protecting the State's vital interests since its foundation, such as its military escorts of prisoners and its excellent Border duty, for which its members were not paid enough, comparatively speaking — they had a grievance there. I do not agree that the Army should provide escorts for private sector cash movements. Perhaps the Minister could elaborate on that, although he may not be in a position to do so now. Given the enormous profits made by banks currently, they should be in a position to provide private security escorts which would be adequate to their needs without calling on State resources.
Abroad, the Army has been involved in peace-keeping in the Middle East and in Africa, where it has covered itself with glory. There have been many injuries and deaths in the service of the UN and of Ireland. The Army has worked well as ambassadors for Ireland. Under the Amsterdam Treaty, which I hope will be ratified on 22 May, we will give special treaty status to the peace making and peace-keeping process and Ireland will play its part — we are doing so already and will do so in the future.
The Minister said all steps were being taken by the Defence Forces and gave an impressive illustration that they were up to date. While they might be behind best practice in the US and elsewhere, they have done their best to provide ear protection; for instance, over 80,000 sets of Sonex ear defenders were issued in the 1970s. At that time there was not the same sense of awareness of hearing disability or the dangers that could arise from exposure to noise at firing ranges. Our knowledge has constantly evolved. I take that on board and neither blame nor exonerate the Department of Defence or the Army authorities. However, it is disquieting that cases are succeeding in the courts. The Minister said it was difficult to produce records to combat assertions made in court. Senator Dardis quoted some of the regulations which caused confusion as regards interpretation and implementation. Nevertheless if there were adequate regulations together with a monitoriong system and implementation process in place could these be referred to, even if activities occurred in specific instances? I do not believe the courts would expect that level of proof.
Did Army quartermasters provide equipment, such as the 80,000 sets of Sonex ear muffs, rifles and grenades? Are there not drill sergeants and officers who can inform the courts of the degree of implementation of regulations on protective hearing equipment? We must explore the way in which equipment was issued and the reason so many cases have been successful. Was it provided to firing ranges and what methods were used to ensure enforcement? I believe the courts would be sympathetic if it could be demonstrated that a chain of good practice was in place, even if individual proof was lacking. I recall my colleague in the Dáil, Deputy Bell, saying that when he was an FCA officer some of those attending competitions did not have ear muffs and on that basis all competitors were instructed to remove them in the interest of fair competition. Were ear muffs and other forms of protection taken seriously or ridiculed?
I welcome the Bill and the Minister's attempt to establish an independent standard of assessment of hearing loss and to standardise the compensation payments. He has done good work on both issues and in devising a package which, in a more coherent fashion, may mean that access to the courts in an individual capacity will not be necessary. I note from his speech that this is the approach he hopes to take.
Section 2 states:
This Act shall apply to all proceedings before a court, whether commenced before or after the enactment of this Act.
It appears unusual to introduce legislation that impinges on cases that have already commenced. In consequence, it may come before the Supreme Court because given the number of lawyers and cases involved, an attempt will undoubtedly be made to test its constitutionality. Will the Minister indicate the legal advice he received on this legislation and could he advise of any precedents where legislation enacted by the Oireachtas impinged on cases already commenced in the courts? Are we on safe ground here?
What is meant by the term "judicial notice"? The text is prescriptive when, in section 3, it states: "Judicial notice shall be taken of the Report in all proceedings.". It amounts to a mandatory requirement on the courts to take judicial notice of the report, rather than to merely have regard to it. This appears to be an attempt to influence the Judiciary. What implications will this have in terms of cases before the courts?
Is this legislation necessary? If the Green Book, with its formula and standards, is placed in the hands of the Minister's defence council, surely it can be read into the proceedings of the courts and the judge can be asked to take cognisance of it? Is anything more being done by the legislation than what the Minister's legal council would have done in practice once the data was compiled and the formula put together?
There are aspects of retrospection in section 2 which need to be clarified. It is questionable if the principle is healthy. There are also aspects of prescription in all the sections, wherever it is provided that the courts "shall". In addition, the Minister is a defendant on behalf of the State in cases which go to court, yet he is now interfering and seeking to influence the courts by introducing legislation which will have a bearing on the outcome of the cases before them. There is at least an apparent conflict of interest here. Will the Supreme Court find this a proper procedure by the Minister and will it find that it interferes with judicial powers?
The morale of the Defence Forces is a serious matter. I would hate to see them become scapegoats for these compensation claims, some of which are undoubtedly bogus. There is a huge amount of public odium at present. I have spoken to some of the lawyers; jokes have been made about aspects of their involvement. However, the vast majority of cases appear to be genuine.
Arising from all of this we must ensure there are adequate health and safety standards which are properly resourced. A new system must be established to ensure that if this matter arises in the future it can be resolved without embarking on the procedures which have been used hitherto. Above all, we must ensure that the elements of best practice operate in all areas of the Army.
I thank the Senators who have contributed to this debate on this legislation. I am sorry so many people wanted to extend sympathy to me because of the problem I have. I had worse problems in Opposition, at least now I can do something about it. I would not like people to be over sympathetic or to feel, as Senator Cosgrave did, that the main thrust of defence policy, in terms of the development of the White Paper, is being neglected. I tried to convey that I have spent a considerable amount of time concentrating on this issue. This has not meant that we have been slack in dealing with the more positive developmental aspects of the work in my Department.
There are number of driving forces behind this Bill. Many Senators have alluded to their respect for the Defence Forces and the loyalty and service they have given to the State. That is the first driving force for me. I want to protect that respect. It would be an enormous disservice to the Defence Forces to allow this to roll on the way it was going. That would devastate the Defence Forces in two ways. It would allow for a long period of hurt during which it would be inevitable that the Defence Forces themselves would be severely curtailed. That would curtail recruitment and affect refurbishment. It would destroy our plans for the procurement of armoured personnel carriers to protect our soldiers serving with the United Nations in circumstances where there are serious threats from landmines.
The first essential for me as Minister for Defence is to tackle this problem openly and honestly and reach a consensus in the Dáil and in the Seanad on appropriate action to take and then to see that it is effective and learn from any mistakes which were made in the past. I was surprised that Senator Caffrey tended to blame me, saying there were other things which I should have been doing. I have sought not to blame my predecessors or previous Governments. I could get involved in that but I want to go on to tomorrow, I want to solve problems; I am not interested in scapegoating anyone. The State, the taxpayer, the Department of Defence and I all have a problem. We want to solve it.
I was greatly impressed by Senator Tom Fitzgerald's contribution which went into sensitive matters relating to his own hearing incapacity. One could not but be struck by it. It is important that there is a broader understanding of the effects of deafness and tinnitus and how society responds. The Senator mentioned a number of areas in which certain programmes should have greater attention drawn to them and how we should respond to disability. We have a more enlightened approach now to disability of any kind.
The second driving force I have in dealing with this is that, as public representatives, we work long and hard to try to reach out to those with a disability, yet we know we are not reaching them. Whether it is special homes for the physically or mentally handicapped, waiting years for a speech therapist or a physiotherapist, psychological and remedial services at primary school, we know these handicaps exist and that we cannot reach them adequately. It is a constant compromise in spreading out resources. We know there are corners of desperate need which we cannot reach.
Fair play is my third driving force. Is the problem one person has a great as someone else's? My answer to that is no. For the great league of plaintiffs, they have a problem and we will address that in compensation. Nobody will convince me that 100 per cent of plaintiffs are in a league of need compared to someone who is waiting for six months to be measured for an artificial limb. I could name hundreds of cases and that is why I must come openly to both Houses and ask people to come together.
Sometimes people argue that I am trying to interfere with the Judiciary. Every piece of evidence put forward tries to influence the Judiciary. It is the member of the Judiciary who makes the ultimate decision. A case is put forward to influence that person to make the decision which is best. Why should this House be afraid to talk publicly about doing that when they are worried about hundreds of millions of pounds being drained from the Exchequer, a considerable part of which is not necessary?
I mentioned in the Dáil one case of a minor disability. We had 5,000 cases on hand, a figure which took five years to reach. The award to the plaintiff was £80,000. In the subsequent nine months there were 4,000 new claims.
I believe that people with serious injury are entitled to every penny they get. Equally, for those with a minor handicap, as I understand it, in the context of State finances I consider the settlements inside and outside of court wrong. They are in need of change. There is separation of powers but we live in a small society where we know each other and we know when we have problems.
People with minor or zero handicap are being given awards. They would receive no compensation at all in any other jurisdiction, even those which are much wealthier we are and those which have been to war. We do not have heavy artillery fire. If we were five or six years behind the Americans and the British in introducing the most up to date ear protection of that era, unlike them we were not using artillery fire or at war — we were using small arms.
There must be a sensible approach to this problem by all concerned. Whether we are a member of the Judiciary, the legal profession, the Executive or a taxpayer, we must do the fairest thing when faced with a problem.
Over the last six months the quantum has fallen. We have shaved at least £100 million off the Bill. There is the Green Book, the Government has prepared legislation to restrict the banning of advertising and now this legislation. A progressive effort is being made to cope with the matter.
Hindsight is a great thing. As a child I sat on a threshing machine and fed the sheafs into it. If you made the slightest mistake you would lose your hand. There were no cabs on tractors when I first drove one. There were no helmets when I played hurling and there were no seat belts when I first drove a car. Those were the times in which we lived.
Can we retrospectively apply standards for health and safety or duty of care from the 1990s? We will vote on the Amsterdam Treaty in a couple of weeks. The process of consensus and coming together in Europe has brought to light useful and enlightened practices with regard to the environment and health and safety. We have benefited from them but we should not try to apply those practices retrospectively to the 1950s and 1960s when circumstances were totally different. Had helmets for hurling been available at that time I would not have worn one because I would have felt that I was weak or cowardly. That was how we thought. We live in more enlightened times now.
There was not wilful neglect but there has been the retrospective application of a modern standard. We have been invited by the courts to legislate and the legislation has been brought forward as soon as possible following the publication of the Green Book on 9 April 1998. Senators asked why there was such a delay in producing the Green Book. We tried to see if the courts would accept the American standard and the British standard and as they were rejected and ENT specialists in Ireland disagreed on this matter it became necessary to produce an Irish standard. That is what we have done.
It was suggested that the costs might be spread over a number of years. We cannot even consider that approach in terms of pensions or in another form while the quantum remains as high as it is for minor ailments. A person may retire from the Army in their early forties after ten or 15 years' service and have a life expectancy of perhaps 80 years. Calculating a pension on that basis will indicate that it is far better to deal with such matters now. If there is a lesson politicians have learned from the experiences of the 1970s and 1980s it is not to defer matters. We cannot transfer to a succeeding generation the responsibility to pay for what we are unable or afraid to pay. I would like to run my Department on the basis of achieving the best result from the funds available and not to leave the obligation to pay to a future generation. The fundamental principle must be to reduce the quantum for minor injury and no handicap to a level we can afford, which is proportionate to the handicap and which is fair to competing considerations in terms of the taxpayers' ability to pay.
I have visited many barracks around the country and I am grateful to Senators who joined me in the various areas. I talked to soldiers who have made claims and to those whose claims have yet to come to court. I talked to retired members who had made claims. I also talked to retired members who had served in the worst times in the Army but who shudder at the idea of making a claim. They consider themselves to have been proud servants of the State and ignore what small problems they may have. They subscribe to the view that if everyone in the world who has something wrong with them targets somebody else with the blame then we may as well close down the world. Many thousands suffer ailments, yet they are not targeting anyone for them. That is not to say that people do not have constitutional rights which they may pursue.
Talking to the soldiers I discovered that those who have received awards and those whose claims have yet to be heard were of the unanimous opinion that they would have taken and would take considerably less. There was a big enticement from case chasing and high awards, but on the basis of my personal research those who have received awards and those who have yet to go before the courts would have taken and would take considerably less. It is important to know that we are not dealing with a group of people seeking every last penny. Some people have injuries and are entitled to whatever compensation they get and those with severe injuries should get the highest possible awards. I did not meet a high proportion of those involved, but a significant sample nonetheless and I am glad to have the opportunity to convey their view.
Reference was made to possible difficulties which people who have made claims may have with regard to promotion or service overseas. I indicated to the Dáil that promotions at senior level were granted recently to people who had been awarded significant sums in the courts. Any soldier prevented from going overseas would have to have a disability other than a hearing impairment. I have met claimants who have served abroad.
Senator Glynn was anxious about Columb Barracks and I hope to visit there in the next few months. I will have an opportunity to see the local needs at first hand. I am sure a case will be made for refurbishment and I will try to be helpful in that regard.
Senator Dardis asked me to elaborate on the new system. The options open to me to finalise this matter in a satisfactory manner are great if the response from the courts and others involved is reasonable and meets the criteria I am laying out. I wish to point out to Senator Costello that this matter is not a problem for the Minister for Defence alone. Rather it is a national problem. If it was the Minister for Justice, Equality and Law Reform introducing this Bill the Senator would not have been able to make the remarks he made. I respect his right to make them and he is not the first to do so. However, the legislation would be exactly the same no matter which Minister introduced it. Government decisions are made on the basis of collective responsibility.
The new system can only take effect when the quantum for minor injury is at a level we can afford. This will be preferable to abrasive agreements with solicitors who have based their figures on certain criteria which have come from the courts in terms of awards. I would like to deal with this quickly, as I do not want it to hang over the Defence Forces for any longer than is necessary. However, I am unable to move further unless I have a response, because if I were to provide an alternative system people would go to court if that option was better.
I dealt broadly with the issues raised by Senators Cosgrave and Fitzgerald. The banks pay approximately £2.5 million for cash escorts, and approximately £0.5 million of that sum goes to the Department of Justice. I am anxious to see how resources for this can be increased. Army personnel are suitable for cash escort management, which is a serious task. One needs highly skilled people for possible eventualities, though I hope those eventualities will be less likely to happen in future. I accept that we should seek to increase the amounts paid by the banks for this service.
In relation to the Green Book, having regard to the formula is a novel approach in so far as it gives no direction to the courts nor any prescription. I am also advised that it does not give rise to constitutional difficulties.
I thank Senators for their contributions and support for this legislation. In the light of present difficulties the Government is doing what it feels is best to produce a solution to a complex problem. I appreciate the unanimity of support in both Houses for what I am trying to do and it is a confident note on which to send this legislation to the courts. The legislation carries greater weight because of the unanimous support of Senators and Deputies than it would if there had been conflict about it.
Question put and agreed to.
Agreed to take remaining Stages today.