Jack Wall
Ceist:2 Mr. Wall asked the Minister for Defence the position regarding the implementation of his proposals for a tribunal to deal with the Army deafness cases. [9444/99]
Ceisteanna–Questions. Priority Questions. - Hearing Impairment Claims.
Frances Fitzgerald
Ceist:3 Ms Fitzgerald asked the Minister for Defence the progress, if any, he has made in establishing a tribunal to deal with deafness compensation claims; the plans, if any, he has to base this on the Green Book or a modification of it following recent court cases; if there will be a scale of compensation; and if he will make a statement on the matter. [9481/99]
I propose to take Questions Nos. 2 and 3 together.
I asked my Department to prepare proposals for Government for a compensation scheme for serving and former personnel of the Defence Forces who may have suffered hearing disability arising from their service. The scheme will be based on the Green Book which has been broadly accepted by the courts as a fair and reasonable system of assessing disability.
In setting the proposed level of compensation, I will be mindful of striking an equitable balance between the rights of claimants with genuine injuries and what can be afforded by the taxpayer. I must also have regard to the quantum of damages awarded by the courts in these cases. In this latter connection, it is well known that I have reservations about the tariff established last year in the second test case – Hanley. Although the Green Book was generally accepted as the basis for the assessment of hearing injury in that case, an additional dimension was added to take account of future hearing loss. This, combined with the tariff, greatly increased the damages indicated in the first test case – Greene. In response, my Department has consulted experts in the fields of medicine and statistics regarding the modified assessment methodology developed in Hanley. As Deputies are aware, the Supreme Court is not a court of first instance and will, on appeal, deal only with arguments which were first made in the High Court. My difficulty with the prognostic factor introduced in Hanley revolves around the increasing unreliability of any statistical methodology the further into the future it is required to predict. In the case of a 33 year old with zero disability, the Hanley prognostication formula could currently permit an award of up to £9,000 in damages. Furthermore, if the same individual had a 35 per cent hearing disability he would, under the Hanley tariff, receive what I had understood a person with total deafness would otherwise have generally received from the courts.
In these circumstances, I have taken advice on whether it would be preferable to address these issues in a third case in the High Court or proceed to seek an early hearing of the Hanley appeal on the basis that sufficient evidence is available in that case to make these arguments in the Supreme Court.
Having regard to the Green Book's status as a fair assessment system and assuming a reasonable and affordable tariff emerges from the courts, I do not see the necessity for a tribunal with attendant delay and representation costs. Rather I intend to establish a compensation scheme which will provide for the speedy resolution of claims by reference to established and accepted criteria of assessment and compensation.
The Minister placed great emphasis on reducing the quantum in regard to claims. Is he satisfied that it is low enough to proceed with a compensation scheme? He is reviewing the situation using medical advice and audio experts. Must the Green Book be altered to meet the reservations expressed by the Judiciary in respect of claims before it? Must it be reassessed to meet the demands of representative bodies such that they will agree to a compensation scheme?
How long will it take to implement the scheme? The Minister has spoken at length in the House about this form of compensation being put to rest, yet it is ongoing and is destroying the morale of the Defence Forces. I hope that the Minister will be able to tell us when the scheme will be implemented so that problems in the Defence Forces can be dealt with.
It is hoped that the Supreme Court case, to which I referred in my reply, will be heard quickly. I will then be extremely anxious to make an announcement in May on the type of compensation scheme envisaged, the tariff involved and on how the board will be established and work.
There has been a substantial reduction in the quantum awarded over the past two and a half years. It is gradually getting closer to what is affordable and fair. The Green Book has been broadly accepted by the courts but the methodology in terms of determining future hearing loss and disability and the arguments that must be made in the Supreme Court case relating to the Hanley case are such that they should enable us to have a solid basis for proceeding with the compensation scheme. I am extremely anxious to put it in place quickly. I appreciate that a certain amount of damage has been done to the Defence Forces over that time but we need to recover from that. One way is to get broad agreement from all of those involved to proceed in this manner.
Will the Minister clarify whether he is appealing the Hanley case to the Supreme Court?
Yes, there are two basic legal arguments.
Is a further test case required to deal with some aspects of the Hanley case or will the case itself address all these issues?
We are proceeding with the appeal.
Therefore, the appeal papers have not been lodged yet because the Minister is still considering a further High Court case.
Yes.
Does the Minister envisage establishing a tribunal before the Hanley case result is announced in the Supreme Court?
Once a decision has been taken on the issues I outlined, it will be possible to push ahead with an early Supreme Court hearing. Notwithstanding that, I am extremely anxious to proceed with the compensation scheme as soon as I can and I hope to do so in May. It would be ideal if all the other issues were resolved at that time, but I am mindful of the fact that there have been many representations and inquiries about, and much interest in, the scheme. Deputies Fitzgerald and Wall have made representations on the basis that the scheme is likely to succeed. I am prepared one way or the other to proceed on the basis of what I outlined. I hope to get everything right beforehand but that may not be possible. However, I will not wait.
The key question is what form of assessment will be used. It is clear from the court cases two weeks ago that the Green Book is continually being chipped away at by decisions in court. Does the Minister accept, even though the Green Book received all party support, that if he is to proceed and set up a compensation scheme, modification of the book will be essential if he is to get broad agreement from all concerned, including the representative associations and lawyers?
Given our experience in court since the publication of the Green Book, there must be a learning curve in terms of how we formulate a compensation scheme which takes account of everything that has happened since then. The main thrust will still be based on the book but account will be taken of experiences in the interim because I want the scheme to succeed. I want to be able to save money, particularly in regard to the astronomical legal costs, and attract the majority of litigants to the scheme in their interest and that of the Defence Forces and taxpayers.
Which experts will the Minister call on to draw up the scheme? Does he envisage using the same experts as were used in the production of the Green Book? Is a wider range of expertise needed to ensure that scheme will end the problems we have had with this issue? That would be necessary to meet the demands of the representative associations. I am concerned that if the same people are used we will initially find it difficult to get off the ground with the representative associations and those who have cases before the courts.
I am extremely grateful to my colleague, the Minister for Health and Children, Deputy Cowen, and those who were selected for the preparation of the first proper assessment of hearing disability. All of them are eminent experts in their fields. We can safely say that everything they said has been tried and tested. In the meantime we are examining other experiences. I never said I would appoint these individuals to the compensation board, nor did I intend to do so. Their advice and work is an essential part of how we proceed, but the compensation scheme, the composition of the board and how compensation will be paid are separate matters from the nominees who prepared the book in the first instance.
Given the quantum of damages currently being paid in settlement of these cases, what is the Minister's estimate of the total cost should he establish a compensation scheme by May, based on the number of cases before him?
Just over 11,000 cases remain to be decided and new cases are coming in at the rate of 100 per month. While that is considerably lower than it was, it is still a disturbing part of the problem. If one were to solve this on the basis of the Hanly judgment, the existing cases would cost about £550 million, as well as legal costs of another few hundred million pounds. There is no way the compensation scheme we are designing will cost that much. We are getting a significant discount on the damages in the Hanly case in our negotiations before the court, through argument, etc. As the quantum progressively reduces the final estimate will be some hundreds of millions less than that figure. That relates to current claims, I am in no position to indicate where this will end.