Committee Reports > List of Committees > Dáil > 1999 > Committee of Public Accounts > First Interim Report - Appropriation Accounts, 1996

DÁIL ÉIREANN

COMMITTEE OF PUBLIC ACCOUNTS

FIRST INTERIM REPORT ON THE APPROPRIATION ACCOUNTS 1996

P.N.

TABLE OF CONTENTS

GENERAL OBSERVATIONS

1. Introduction

1.1The potential financial liability to the State arising out of compensation claims from former and current members of the Defence Forces for hearing loss/handicap allegedly attributable to service in the Defence Forces has been estimated by the Secretary General of the Department of Defence, at a minimum of £350 million. A maximum cost of £4.5 billion was mentioned by the Secretary General of the Department of Finance, which is based on the premise that all those still living who served in the Permanent Defence Force, the FCA and the Slua Muiri, up to 1987, will make a successful claim and that the current average quantum of awards and costs will remain constant. However, as the estimated maximum number of claims is 150,000 persons, and the most recent figures provided by the Department of Defence suggests an average cost (including all fees), of each claim so far of £37,000, it would appear to the Committee that the maximum figure could be as high as £5.55 billion. It should be emphasised that these figures are not forecasts but merely a quantification of outside risk. It should be noted that this does not include the additional administrative costs in the Department of Defence and Attorney General’s Office arising from the ‘deafness’ claims. The annual costs of these are, so far as is currently quantifiable, shown in paragraphs 6.1 and 7.2.

These figures contrast with the evidence given by the Director General of the Law Society who told the Committee “…Some of the society’s members who deal with these claims are of the view that the entire cost may be closer to £100 million spread out over a period of five years. This is not to say that the society finds a figure of £100 million acceptable….”. Clearly the Law Society had grossly minimised the scale of this problem as the Director General subsequently withdrew that figure.

1.2At the beginning of February 1998, some 11,521 claims had been received of which 3,988 were from serving personnel. By that date, £41.6 million had been paid in 1,488 cases of which £5.9 million related to legal costs so far paid. There remain further legal and other costs to be settled in respect of these cases. 1,405 of the 1,488 claims were settled without admission of liability, and Court awards were made in the remaining 83 cases. Another 21 cases were dismissed by the Courts and 30 cases were withdrawn making a total of 1,539 cases having been disposed of.

At current average inclusive costs, the existing claims will total approximately £430 million (i.e. £37,000 multiplied by 11,521). New claims are being received at a rate of 600 a month which would add, at current average, an additional £22 million each month to the likely cost.

1.3In light of the unprecedented potential call on the State’s finances, the Committee decided that, as a matter of priority, it should examine the circumstances in which the situation arose and consider what steps, if any, were open to it.

To this end the Committee reviewed documents furnished by interested parties and called all the main parties involved before the Committee over four days of special hearings. A full list of witnesses who appeared before the Committee is included in this report.

Having considered the documentary and oral evidence, the Committee reports as follows:-

2. Regulations

2.1Research carried out in the mid 1960s in the U.K., contributed greatly to the knowledge of the relationship between a given degree of noise induced hearing loss and the noise to which the working population were exposed. It became clear that the average hearing loss in a population was directly proportional to the amount of noise to which they had been exposed. Thus very loud noise for a very short period of time would give rise to the same amount of hearing loss as a quieter noise for a longer period of time. This established a very important scientific principle known as the “equal energy principle”. All present day noise legislation is based on this principle. It was not until 1975 that regulations specifically designed to take account of hearing loss due to the work environment were introduced in Ireland.

These regulations on noise were made under the Act which had up to that time addressed requirements in relation to safety, health and welfare - the 1955 Factories Act - and required that employed persons should not be exposed to sound pressure levels in excess of 90dB except under the following circumstances -

(1)that duration and level of exposure is controlled so that its cumulative effect is unlikely to cause harm; and

(2)that ear protection is provided.

The Regulations also stipulated that warning signs or barriers should be erected in areas where the noise level exceeded 90dB and employers were required to provide protection. Inspections carried out by the former Industrial Inspectorate of the then Department of Labour ensured that the Regulations were observed. However, the Committee was informed by the Chief Inspector of the Health and Safety Authority that these regulations did not apply to the Defence Forces, they were merely concerned with the industrial sector.

Further legislation in 1989 introduced a prevention-based system in which identification of risk, risk assessment and preventative measures became accepted procedure. This effectively brought the Defence Forces under the remit of the Health and Safety Authority, no longer applying only to the industrial sector. Regulations were strengthened even more in 1990 with the introduction of the European Communities (Protection of Workers) (Exposure to Noise) Regulations 1990, (S.I. No. 157 of 1990) which implemented EC Directive on Noise (86/188/EEC) which laid down a comprehensive legal framework for a hearing conservation programme applying to all work situations. These regulations state that -

Where exposure exceeds 85dB the following steps should be taken:-

-Measure noise levels

-Provide ear protectors and training in their use

-Inform workers of the risk

-Make hearing checks available

Where exposure exceeds 90dB the following steps should be taken:-

-Identify cause of problem

-Reduce the noise at source if possible

-Mark areas/restrict access where noise exceeds 90dB

-Ensure ear protectors are worn

-Workers must wear protection provided

It can be seen that these Regulations took cognisance of two particular aspects of possible damage by noise levels in that -

(1)a lower level of 85dB was recognised as a danger to hearing; and

(2)that where noise levels reached or exceeded the 90dB level, protection must be worn.

2.2All member States, including Ireland, have by now implemented Directive 86/188/EEC and so the law in this respect is currently uniform across the EU. As mentioned earlier, Ireland gave effect to the EC Directive on Noise (86/188/EEC) in our 1990 regulations. Under these the Defence Forces must comply with the provisions of the 1989 Act and the 1990 Noise Regulation. The Director General of the Health and Safety Authority confirmed in evidence that the Defence Forces had complied in all respects with their statutory responsibilities since the passing of the legislation. Indeed, it would appear that the Defence Forces, in 1987, anticipated the extension of EU safety law to it by its training circular of that year and it is worth noting that all of the successful claims to date stem from before 1987.

3. Testing

3.1Hearing loss should not be confused with hearing handicap as hearing loss up to a certain level causes no handicap or disability whatsoever. Indeed, a certain degree of hearing loss is a normal part of the ageing process.

3.2One of the main bones of contention is the measurement of hearing handicap for the purpose of assessing compensation.

3.3A representative sample of 10 cases which had either been successful in Court or settled by the Department was sent to the Department of Social, Community and Family Affairs to establish what the claimants would be entitled to under its occupational injuries scheme. To qualify for Disablement Benefit from the Department of Social, Community and Family Affairs, hearing loss of at least 50 decibels in each ear up to 3KHz is required. The review revealed that, because hearing loss, if any, did not reach the threshold laid down in the relevant regulations not one of the cases would have been entitled to Disablement Benefit. This civilian system has not been accepted in the Army ‘deafness’ claims by the Courts.

3.4Furthermore, the British and the American Medical Association (AMA) both have their own systems of assessing hearing handicap. Under these systems, many of the claims would not succeed. However, these systems have not been accepted in our Courts either, thus leading to awards being made to claimants who, whichever system is used, have zero or very slight handicap.

3.5An apparent factor in the stance of the Courts has been that there is no agreement among Irish ENT specialists on a system for assessing hearing handicap. The Committee has been informed that informal meetings took place among specialists and that all but one of those present agreed to the American system of measurement as being appropriate to the cases under consideration. Evidence was given to the Committee that only 3 of the 18 ENT specialists who are involved in the current claims in Ireland do not accept the AMA or the British system of assessing hearing handicap.

3.6A related issue in the determination of compensation is the alleged incidence of tinnitus or “ringing in the ears”. The Committee understands that there is no way of establishing medically the existence or extent of tinnitus. Therefore, it is likely that this will continue to be a problem, as the Courts have made awards in respect of tinnitus even when no hearing loss has been sustained. In evidence the National Rehabilitation Board indicated that a number of studies were carried out in Britain on the treatments for the condition which had significant degrees of success.

3.7Some of the witnesses referred to the assessment of hearing loss in screening tests as being the proper basis for the measurement of the extent of hearing handicap. This was rebutted by the Health and Safety Authority in a letter dated 16 February, 1998 to the Committee which states:

“The suggestion made, according to media reports, was that a measurement above the threshold of 4,000 hertz implied hearing loss. This is not the case. The audiometric thresholds of hearing referred to in the EU Directive, in the 1990 Regulations and in the Guidelines related to them, are for the purpose of screening so as to detect possible high tone loss at a stage before it becomes a disability”

“We are concerned to note that in the public arena the argument was being made that the ‘EU Directive’, on which the 1990 Noise Regulations are based, was being interpreted as if the audiometry requirements, which were intended purely for screening purposes, constituted a disability standard”

“Other situations which would illustrate the purpose of screening tests would, for instance, be tests to discover whether prescribed or accepted norms for lead in the blood or for cholesterol levels were exceeded. While screening shows higher levels this would not mean that lead poisoning or heart disease were present. While there could be a danger of getting lead poisoning or heart disease, the purpose of screening is to enable preventative measures to be taken to reduce the risk”

The full text of this letter is included in appendix 3 to this report.

3.8The National Rehabilitation Board, in evidence to the Committee indicated that the most common cause of hearing damage was age related. The board also referred to a study carried out in Great Britain by the Institute of Hearing Research, which found that 17 per cent of the entire population was affected by hearing impairment.

4. Military regulations and testing

4.1The Committee sought details and the chronology of relevant military regulations. The first reference to the wearing of ear protection against noise in the Defence Forces was contained in General Routine Order No. 8 of 1952 which stated that Commanding Officers should issue instructions to ensure that during the firing of all weapons, other than the rifle, revolver or the machine gun, personnel engaged should protect their ears with a piece of dry cotton wool and that supplies of cotton wool could be obtained on requisition through the normal medical channels.

4.2It wasn’t until 1961 that the Order was extended to cover rifles and automatic weapons and by that time the protection envisaged was a piece of clean cotton wool moistened with Vaseline. The Director of the Army Medical Corps told the Committee that the use of cotton wool protection would reduce the noise level by at least 10 decibels.

4.3In 1972, instructions were promulgated covering the issue of ear defenders (ear plugs) to all members of the Defence Forces. Evidence was provided that large quantities of ear plugs were purchased for the Defence Forces from 1972 onwards.

4.4In 1984, the previous instructions were replaced with a direction that the Officer-in-Charge should ensure that all personnel are in possession of, and wear, ear defenders when firing is in progress.

4.5This direction was reinforced and clarified in a new training circular (number 21/1987) in 1987, which required the Officer or NCO in Charge of the Firing Point to order “Check Ear Protection”. It should be noted that no claim arises in relation to events after 1987. But a central problem in the current crisis is that, in respect of the years prior to 1987, the Department of Defence has no means of verifying that in any one case, the ear protection provided was or was not worn by the individual concerned.

With regards to testing of hearing in the Defence Forces prior to 1991, hearing grading standards were based on a whisper test which was an unsophisticated, non-specialist method of examining hearing, designed to test the subject’s ability to hear normal conversation. In 1989-90, “audio-scopes” were introduced. These were screening instruments but could detect levels of pure tone hearing loss. Different grades of hearing loss were introduced. These were amended in October 1997 resulting in the establishment of 5 different hearing grades in the Defence Forces (see appendix). Under such modern tests, 7.8% of all those who were recently tested for Defence Force recruitment and pre-employment screening medicals failed the hearing tests (one series in St. Bricin’s Hospital in Dublin last year gave a failure rate of 20 per cent).

4.6The Director of the Army Medical Corps told the Committee that if the old whisper test was still in place most of the people making hearing compensation claims today would still pass it. The introduction of modern hearing tests for serving personnel in the Defence Forces consequent on the passing of hearing and safety legislation made individuals aware that their hearing was not perfect even though up to then they were unaware of any discernable hearing loss. The advent of these modern hearing tests appears to be a major factor in the high level of claims by serving personnel. At the beginning of February, 3,988 of the current serving members of the Permanent Defence Force out of a total strength of 11,470 (at the end of December, 1997) have lodged ‘deafness’ claims. Even though it is now evident that hearing loss in a percentage of those cases would already have existed at the time of original recruitment, there is no way of retrospectively determining which personnel would, on recruitment, already have had hearing loss or indeed tinnitus.

5.Military handling of hearing protection

5.1The military authorities have informed the Committee that recruit training lasts six weeks, during which each recruit will fire 260 rounds (i.e. bullets). A trained operational soldier uses the Steyr rifle. He attends an annual range practice when he would fire 111 rounds and this would last about an hour and a half. Most trained soldiers would have two other practices during the year lasting a few minutes in each case, when about 40 rounds in total would be fired between the two sessions. The total firing training per soldier is approximately 2 hours per annum. It should be noted that all firing is in groups with another soldier firing on the left and the right. It should be pointed out that a small number of soldiers would be involved, for example, as trainers, and consequently exposed for a significantly longer time in each year.

5.2Since 1972, over £500,000 has been spent by the Defence Forces on hearing protection. As the various forms of hearing protection were not expensive, and still remain relatively cheap, the problem did not lie in a scarcity of resources (see appendix).

5.3As mentioned earlier the Defence Forces were brought within the remit of national legislation for worker hearing protection in 1990 by Statutory Instrument No. 157 of 1990 -- European Communities (Protection of Workers) (Exposure to Noise) Regulations 1990. The Health and Safety Authority confirmed in evidence that the Defence Forces had complied in all respects with their statutory responsibilities since the passing of the legislation.

5.4It was suggested to the Committee that hearing loss of a kind being disputed in the Courts by the Department of Defence, was at the same time being used to affect assignments or promotions by the military authorities.

The Adjutant General told the Committee that:

(i)Hearing loss or handicap does not affect the promotion prospects of personnel in the Defence Forces except in a limited number of appointments.

(ii)There are a small number of assignments (e.g.heavy weapon) into which personnel cannot be transferred because of indications of moderate hearing loss which could be aggravated by exposure to heavy weapons fire.

5.5The officers’ and soldiers’ representative bodies contended that prior to 1987:

*the regulations emphasised the availability of ear protection rather than the mandatory wearing of it

*officers and men could not reasonably be expected to appreciate the importance of wearing ear protection

*the wearing of ear protection was counter to the macho image associated with armed forces worldwide

*cotton wool was an inadequate protection against the noise levels

*the hard ear plugs when supplied, were very difficult to wear

*the Irish Defence Forces were some 6-7 years behind best practice in other Defence Forces in the matter of ear protection.

5.6The Department, and the Chief of Staff in response stated that at all times

*the practices employed met the contemporary standards and norms

*in terms of the type of hearing protection provided, the Defence Forces were only a short time behind the leaders in the field viz. the American and British Armies, and ahead of most other Armed Forces

*officers would be expected and be relied upon to apply the regulations that were in place.

*prior to 1987 the emphasis was on advice and availability.

The Committee noted that the 1984 instructions put an onus on the Officer in Charge to ensure that all personnel were in possession of and wore ear defenders when firing was in progress.

5.7The Chief of Staff clearly expressed his view that judgement on past Defence Force standards and practices is now being made, with the benefit of hindsight, in the light of attitudes to standards and practices of safety, now prevailing throughout society. He pointed out, for example, that motor vehicle safety belts and protective helmets for motorcyclists or building site workers were not in widespread use over many of the years for which the Defence Forces are now being arraigned.

5.8The Secretary General adverted to the personal responsibility on individuals to wear the hearing protection that was available. The Committee feels that the concept of personal responsibility on the part of individual officers or service personnel, and consequent possible contributory negligence by them, does not appear to be taken into account in any of the cases.

5.9The Committee is also cognisant of Council Directive 89/391/EEC of 12/6/89 and the Safety, Health and Welfare at Work (General Application) Regulations, 1993 which implement the 1989 Directive in Ireland. In a nutshell, noise regulations allow for exemptions in relation to safety measures in defence forces in relation to active service, or operating in support of the civil power and training in relation thereto.

The Committee notes that the Department of Defence has not sought to avail of those exemptions. The Directive also spells out employee obligations or duties to take care, as far as possible, of his own safety and health and of other persons affected by his acts.

6.Administrative handling of claims

6.1The administrative handling of the claims by the Department of Defence is also a factor to be considered. Up to the beginning of February, 1998, 24 administrative staff were handling the claims (at an annual cost of £430,000) and the Secretary General of the Department of Defence stated that another 22 were needed (at an annual cost of £400,000). At a recent Circuit Court hearing in Limerick, 43 Army ‘deafness’ cases were being heard and the pressure on Department staff was such that it did not have any staff available to attend the Court, resulting in briefing of counsel over the phone. The Chairman of the Committee urged the Department of Finance to act promptly in allocating resources to the Department of Defence so as to avoid reoccurrence of this situation. It is understood that since then 12 additional staff have been sanctioned at an estimated cost of £300,000 per annum.

6.2Concern was also expressed over the fact that the Expert Group who are currently formulating the Irish system of assessing hearing handicap - the ‘Green Book’ system - was only established in late 1997 despite the fact that 136 cases had been listed for court hearings by the end of 1996 and that by early 1997 it was apparent that the Courts would not accept the American Medical Association’s system or any other international system of hearing handicap assessment.

6.3The Chairman of the Army Pensions Board appeared before the Committee accompanied by an official of the Department of Defence. The Committee was told that the Board makes findings which may lead to an award of a lump sum or pension by the Department of Defence for disability arising from Defence Force service. However, it applies only to retired personnel and claims must be made within a year of retirement. Clearly, legislation covering the Army Pensions Board limits its relevance to the present situation.

6.4The Committee enquired as to whether consideration had been given to the establishment of a Tribunal as a means of dealing with these claims. The Committee is satisfied that the fullest consideration has been given to this point. The following points were put to the Committee by the Department of Defence:-

The advantages associated with a tribunal are as follows:

1)The simplified procedure would probably lead to lower legal costs in respect of future claims received.

2)Medical as well as judicial expertise could be appointed to the tribunal which would probably have the effect of securing a greater understanding of the concept of hearing handicap or disability as distinct from hearing loss.

3)The same tribunal would hear all cases and there would emerge an inner consistency between the awards given and the level of handicap established.

4)The simpler and more informal procedures of the tribunal would be less traumatic for the Plaintiff than presenting his evidence in Court.

The disadvantages associated with a tribunal are as follows:

1)There would be no major savings in relation to the claims already commenced other than the cost of Counsel for the Court Hearing. Solicitors costs already accrued would probably have to be met in full.

2)In order to be attractive to plaintiffs, the level of compensation awarded would have to be commensurate with that available in the Courts.

3)The simpler procedures could induce more cases against the State for hearing loss so that the floodgates could be further opened and even greater expenditure incurred in the longer run.

It is not clear that a Tribunal would be a better format, from the point of view of the public interest.

7. Legal handling of claims

7.1The Attorney General has established a panel of 71 barristers to represent the State in Army ‘deafness’ claims. In general, they are allocated up to 50 cases each and cannot act for any plaintiff in Defence Force hearing loss claims. There are some cases of members of the panel being given more than 50 cases, although it had been the intention that they would be limited to 50 cases each. State counsel’s fees are about £1,000 per case. It is clear that, in view of the sheer volume of claims, the maximum number of cases per counsel will have to be revised upwards.

7.2There are also 32 staff in the Office of the Chief State Solicitor working full-time on ‘deafness’ claims. The direct salary cost of these 32 will amount to approximately £530,000 in 1998. Further personnel have been requested as a matter of urgency by the Chief State Solicitor and this is under urgent consideration in the Department of Finance.

7.3With regard to the plaintiffs’ legal representation, a large number of claims are being handled by a relatively small number of solicitors’ firms. From information supplied to the Office of the Attorney General by the Department of Finance, one firm has to date received £4.4 million in costs in respect of 627 cases. This sum includes outgoings which the solicitors would be liable to pay to counsel and professional witnesses. The final earnings arising from Army ‘deafness’ claims for most of these firms of solicitors will be many millions, and perhaps tens of millions, of pounds, despite the fact that the repetitive nature of the cases provide them with obvious economies. The Committee was informed that discussions were now going on between the Minister for Defence and the Law Society on the question of fees.

7.4As a consequence of the fact that a small number of solicitors’ firms and counsel are handling the bulk of cases on behalf of the plaintiffs, they are very well briefed and practised in the minutiae of hearing loss and handicap. The question arises as to the comparative expertise of the State’s legal counsel in the technical areas of the cases.

7.5.Up to the beginning of February, 1998 a total of 1,539 cases had been disposed of. Only 51 of these cases failed. Of the remaining 1,488, all of whom received awards, only 83 were decided by the Courts and 1,405 were settled by the Department. The Committee was told that, following legal advice, the Department very reluctantly settled many of these cases and because of the headline set in cases that had gone before the Courts. This approach is now being reviewed.

Only one High Court award was tabled for appeal to the Supreme Court by the Department. However, agreement was subsequently reached with the plaintiff on a lower award than that ordered by the High Court, and the appeal to the Supreme Court was dropped. The Department has indicated that, in the light of the escalating nature of the problem, they now feel that appeals to the Supreme Court are likely if not unavoidable.

8. Legislation apparently impacting on the issue

8.1In 1991, following the recommendations of the Law Reform Commission, the Statute of Limitations (Amendment) Act was passed which substantially implemented these recommendations. The Department of Justice, Equality and Law Reform points out, with some validity, that the Act sought to rectify an injustice, and a possible unconstitutionality in the law. Nonetheless, it completely changed the timescale of personal injury claims. Up to then, claims had to be made within 3 years of the alleged incident which had purportedly caused the injury. Generally this was a definable date. Under the Act of 1991 the three year clock starts ticking from the date on which the plaintiff claims to have discovered the alleged damage or the seriousness thereof. The Committee points out that it was under the 1991 Act, that the Hepatitis C cases were covered. However, many cases or claims, of their nature, will have much less definitive causes, dates or time spans and much less serious consequences.

It can be argued that the timescale for personal injury claims has become open-ended. This carries the further implication of adding enormously to the difficulty of defending cases because the lapse of time can obscure the details surrounding any alleged incident or incidents, especially as records in the past were frequently discarded after 6 or 7 years. By comparison, the U.K. Crown Proceedings (Armed Forces) Act of 1987 provided for the first time for personal injury claims by Armed Forces personnel against the Crown where there is Crown liability. However, it specifically barred any claims in relation to alleged incidents occurring before its enactment. As a consequence, the U.K. authorities have informed the Committee that in the ten year period from 1987 to 1996, they received 295 claims for hearing handicap from a total Armed Force numbering 214,900. A total of £600,000 has been paid in compensation by the U.K. Government in respect of such claims, some of which were conceded, some defeated and some still outstanding. As a consequence of barring retrospective claims prior to 1987 and, at the same time from then on ensuring up-to-date safety measures were provided, enforced and recorded, the U.K. Ministry of Defence is in a position to produce records in defending compensation claims. It also eliminates the possibility of up-to-date safety perspectives being applied retrospectively.

8.2In 1994, the Solicitors (Amendment) Act permitted, inter alia, solicitors to advertise. However, the Department of Justice, Equality and Law Reform has pointed out that the Law Society’s own regulations had, since 1988, permitted advertising. There can be very little doubt that the extensive advertising in relation to Army ‘deafness’ claims by a number of firms of solicitors has been a significant factor in the avalanche of such claims. Examples of advertisements are included in appendix 3 to this report.

Moreover, in almost all cases, the plaintiff had nothing to lose by making a claim, because of the fact that most cases are taken on a ‘no foal no fee’ basis and that award of costs against an unsuccessful plaintiff has been infrequent. However, the Department of Justice Equality and Law Reform has commented that the ‘no foal-no fee’ system has been operated successfully in the public interest for a considerable time.

The Law Society in its evidence to the Committee said that it had recently requested the relevant firms of solicitors to discontinue the newspaper advertisements. However, the Society was not prepared to concede any breach of the law or of their own regulations, or a breach of ethics, by its members. It appears to the Committee that these matters deserve further consideration and should be further pursued with the Society by the Department of Justice, Equality and Law Reform. Meanwhile, the Secretary General of the Department of Justice, Equality and Law Reform, has informed the Committee that amending legislation will be introduced to control advertising by solicitors.

8.3In 1989, the enactment of the Safety, Health and Welfare Act, for the first time extended the safety provisions, previously only applicable to industry, to all employments, including the Defence Forces. Under the Act, the European Communities (Protection of Workers)(Exposure to Noise) Regulations of 1990 were brought into force. Under these Regulations, the Defence Forces commenced the regular screening of its personnel. As already mentioned, it is partly as a result of these additional safety measures, that consciousness of hearing loss on the part of Defence Force personnel has been heightened. This is almost certainly a further contributory factor in the escalation in ‘deafness’ claims.

8.4In 1990 the Defence (Amendment) Act, was passed permitting, for the first time, the establishment of representative bodies for Defence Force personnel. PDFORRA and RACO were subsequently recognised under Defence Force Regulations S6. There is no suggestion that either body encouraged ‘deafness’ claims at any time. However, their very establishment was indicative of a new climate among the Defence Forces personnel whereby rights, as close as possible to those of the civilian population, were being asserted for the first time.

9.Conclusions.

9.1The Committee acknowledges the right of any individual to compensation for a personal injury in connection with his/her employment, where there is proven negligence and, in particular, the rights of former and serving personnel of the Defence Forces to be adequately compensated for hearing handicap attributable to their period in the service. However, the Committee must point out that, to the best of its knowledge, compensation of the scale envisaged, either in the numbers claiming or the awards being made, has no parallel anywhere in the world. It is difficult for the Committee to accept that this should be so.

9.2The inescapable conclusion is that either our compensation laws and practices, or the application thereof, are extraordinarily generous by international standards; or that the Irish Defence Forces have been massively negligent on a grand scale in their failure to provide adequate hearing protection when compared contemporaneously to Armed Forces in other jurisdictions.

While it has been conceded that the Defence Forces might have been more pro-active in ensuring the application of regulations relating to ear protection prior to 1987 -- an advisory rather than a compliance regime existed -- there is no evidence to suggest that it was out of line with the practice in most other jurisdictions. Preliminary research¹ (although admittedly not conclusive) indicates that the level of hearing loss among serving Irish Defence Forces personnel is only marginally higher than that of the general population.

9.3As the Committee sees it, a contributory factor to the magnitude of the problem appears to be the suggestion that the measuring of hearing loss for health screening purposes is being equated with hearing handicap. The Health and Safety Authority has confirmed that it is totally inappropriate to do so.

9.4Turning to the management of the crisis, the Committee feels that the Department’s policy of settling many cases gave a clear signal to potential claimants that any legal action taken would succeed and had the effect of encouraging more claims. The fact that many cases were not settled until immediately prior to Court hearing meant that greater legal and other costs were incurred than would otherwise have been the case. Some criticism of this approach has been made but, whether or not a better approach was possible, it is clear to the Committee that the Department acted following due consideration and detailed legal advice. The escalating scale of this problem only emerged after Court decisions in early cases and soon the resources of the Department and the State’s legal services were severely tested. Moreover, the Department has also pointed out that, because of the sheer volume of cases, the ENT specialists were greatly overstretched, and because of this, the Department was seriously delayed in preparing their defence of cases.

9.5The Committee notes that since it first considered this matter in November 1997, there has been some evidence of a concentration of minds and resultant positive action at all levels -- political, administrative, legal and medical.

9.6When, by the second half of 1997, it became clearly established that the Courts would not accept international standards as a means of assessing hearing handicap, the Department of Health and Children were requested by the Government to establish an Expert Group to draw up a national standard for measuring hearing handicap. The Committee has been told that the Expert Group is expected to finalise its work before the end of February. Meanwhile, an application had been lodged in the High Court by the Minister for Defence to have all pending cases adjourned until a national standard is available. The Committee has learnt that the Adjournment requested was granted on Friday, February 6th, 1998 until Easter.

9.7The importance being attached to the establishment of an acceptable national standard for measuring hearing handicap, which is intended to be of general application, appears to the Committee to be correct. However, the Committee is firmly of the view that such a standard must have a related scale of compensation if the issue is to be resolved in a manner which is both fair to former and serving members of the Defence Forces and, at the same time, fair to society in general. The Committee notes that, unlike in the U.K. Courts, there are no guidelines in existence in the Irish Courts for personal injury awards.

Urgent consideration should be given to the possibility of introducing legislation enshrining the proposed hearing assessment system and an accompanying scale of compensation.

9.8The existence of the Army Pensions Board already provides machinery for the processing of Defence Force disablement claims, but on a very restrictive basis. Because of the very nature, and dangers, of military service, a strong case exists for a special compensation procedure, separate from the civil courts, for all significant disablement arising out of military service, and consideration of this possibility should be concluded by the administration without delay.

9.9The Committee is fully aware of the damage the present situation is causing to Defence Forces morale arising from public derision. In the view of the Committee this is another compelling reason for the State, the Government and the Oireachtas to expedite a fair and acceptable solution to the problem.

However, the Committee feels compelled to point out that the sheer number of Army ‘deafness’ claims in Ireland is without remote parallel in any other country in the world including countries where the defence forces are enormously larger than ours and even among those defence forces which have been involved in armed combat. It defies credulity to believe that circumstances, unique in the world, existed within the Irish Defence Forces. The Committee rejects any such claim.

9.10.1Nonetheless, criticism of individual claimants would, in the Committees’ view, be misplaced.

9.10.2Likewise advertising by solicitors, even if it was within the law and within the ethics of the profession, may be criticised but such criticism would not go to the kernel of the problem.

9.10.3The reality is that claims are being made because so far, in the overwhelming majority of cases, significant awards or settlements have resulted. This is the kernel of the problem and no fair solution will be achieved unless this issue is addressed and that may involve either legislative or constitutional change or both. A decision on this matter should be concluded and implemented without further delay.

9.11Given the potential gigantic scale of the claims against the State, the Committee senses a lack of appropriate urgency, priority, and co-ordinated approach by the administration since the problem arose. For example, it was only in late 1997 that the Expert Group was established to draw up an Irish standard for hearing handicap and, even now, the Department of the Taoiseach doesn’t appear to be represented on, much less leading, the inter-departmental Committee considering the issue. That the same inter-departmental Committee had no designated Chairperson until recently and then only after the matter was raised by the Chairman of the Committee of Public Accounts is perplexing to the Committee.

9.12.1The question of a ‘compensation culture’ prevailing in Ireland in recent years receives much media attention from time to time. Claims against all forms of statutory agencies appear to be particularly high and has been the cause of concern to many Heads of such agencies for several years. Army ‘deafness’ claims may be the latest, and the greatest, manifestation of this culture. Even before the Army ‘deafness’ issue came to prominence, the Dáil Select Committee on Finance and General Affairs considered the ‘compensation culture’ issue. This Committee has been informed by the Secretary General of the Department of Finance that legislation is being drafted to establish a State Claims Agency to deal with the myriad of personal injuries claims against the State, State Companies, Health Boards, Local Authorities and other State Agencies. However, the Committee draws attention to the fact that this proposal was made by the Dáil Finance and General Affairs Committee in a report dated February 1996. A Government decision to establish the Agency was reported in newspaper reports in February 1997. This legislation does not appear to have been given appropriate priority up to now.

9.12.2The ‘Compensation Culture’ apparently does not only affect the public sector. IBEC, in its February 1998 Newsletter, claims that while Ireland has the second lowest level of workplace accidents in Europe, it has one of the highest rates of claims and costs of claims.

9.12.3The remit of the Committee of Public Accounts does not extend into the private sector and so has no role in inquiring further into IBEC’s statement. Nevertheless, a wider compensation culture has an inevitable knock-on effects on the public finances and is of serious concern to the Committee. An unchecked claims culture is essentially a form of corruption which can have an insidious effect on society as a whole and even on the finances and morale of small voluntary organisations.

9.12.4The Committee notes that juries were abolished in personal injury cases some years ago as a means of controlling levels of awards. This does not appear to have made any impact. Further comprehensive action is a national and urgent necessity.

ACCOUNTS EXAMINED:

The following Accounts were examined by the Committee and the Minutes of Evidence are published herewith:

Defence - Votes 36 and 37

_______________________

JIM MITCHELL T.D.

Chairman

3 March 1998

LIST OF MINUTES OF EVIDENCE

LIST OF WITNESSES

LIST OF APPENDICES

1.Correspondence circulated on 3, 4 and 5 February 1998.

2.Written Evidence received.

3.Other (i.e. Reports made available - not circulated; general correspondence)

4.Legislation and Regulations referred to.

ORDERS OF REFERENCE

1.STANDING ORDER AND TERMS OF REFERENCE - FIRST REPORT OF THE STANDING SUB-COMMITTEE ON DÁIL REFORM ON ESTABLISHEMENT OF COMMITTEES IN THE 28th DÁIL

Standing Order 149

“(1)There shall stand established, following the reassembly of the Dáil subsequent to a General Election, a Standing Committee, to be known as the Committee of Public Accounts, to examine and report to the Dáil upon:

(a)the accounts showing the appropriation of the sums granted by the Dáil to meet the public expenditure and such other accounts as they see fit, (not being accounts of persons included in the Second Schedule of the Comptroller and Auditor General (Amendment) Act, 1993) which are audited by the Comptroller and Auditor General and presented to the Dáil, together with any reports by the Comptroller and Auditor General thereon:

Provided that in relation to accounts other than Appropriation Accounts, only accounts for a financial year beginning not earlier than 1 January 1994, shall be examined by the Committee:

(b)the Comptroller and Auditor General’s reports on his examinations of economy, efficiency, effectiveness evaluation systems, procedures and practices; and

(c)other reports carried out by the Comptroller and Auditor General under the Act.

The Committee may also suggest alterations and improvements in the form of the Estimates submitted to the Dáil.

(2)The Committee may proceed with its examination of an account or a report of the Comptroller and Auditor General at any time after that account or report is presented to Dáil Éireann and

(a)the Committee shall have the power to send for persons, papers and records as defined in Standing Order 79;

* (b)power to take oral and written evidence as defined in Standing Order 78A(1)

(c)power to engage consultants as defined in Standing Order 78A(8); and

(d)power to travel as defined in Standing Order 78A(9).

(3)The Committee shall refrain from enquiring into in public session, or publishing, confidential information regarding the activities and plans of a Government Department or Office, or of a body which is subject to audit, examination or inspection by the Comptroller and Auditor General, if so requested either by a member of the Government, or the body concerned. The Committee shall also refrain from enquiring into the merits of a policy or policies of the Government or a member of the Government or the merits of the objectives of such policies.

(4)The Committee may, without prejudice to the independence of the Comptroller and Auditor General in determining the work to be carried out by his Office or the manner in which it is carried out, in private communication, make such suggestions to the Comptroller and Auditor General regarding that work as it see fit.

(5)The Committee shall consist of twelve members, none of whom shall be a member of the Government or a Minister of State, and four of whom shall constitute a quorum. The Committee shall otherwise be constituted according to the provisions of Standing Orders 78 and 82, and so as to be impartially representative of the Dáil”.

Motion setting up Public Accounts Committee (14/10/97):

“Go ndéanfar de bhun Bhuan-Ordú Uimh. 149 de na Buan-Orduithe i dtaobh Gnó Phoiblí, an Coiste um Chuntais Phoiblí a cheapadh.

That, in pursuance of Standing Order No. 149 of the Standing Orders relative to Public Business, the Committee of Public Accounts be appointed.”

Motion appointing Members of the Committee of Public Accounts (16/10/97):

“go ndéanfar na comhaltaí seo a leanas a cheapadh ar an gCoiste um Chuntais Phoiblí:—

that the following members be appointed to the Committee of Public Accounts:—

Deputies Seán Ardagh, Beverly Cooper-Flynn, John Dennehy, Seán Doherty, Bernard J. Durkan, Denis Foley, Thomas Gildea, Conor Lenihan, Pádraig McCormack, Jim Mitchell, Pat Rabbitte and Emmet Stagg”

Motion appointing Deputy Michael Bell in substitution for Deputy Emmet Stagg (20/11/97):

“go ndéanfar an Teachta Emmet Stagg a urscaoileadh ón gCoiste um Chuntais Phoiblí agus go gceapfar an Teachta Micheál de Bheil ina ionad;

that Deputy Emmet Stagg be discharged from the Committee of Public Accounts and Deputy Michael Bell be appointed in substitution for him”

PROCEEDINGS

DÉARDAOIN 27 SAMHAIN 1997

THURSDAY 27 NOVEMBER 1997

1.Chruinnigh an Coiste ar 11.00a.m.

2.Comhaltaí i Láthair:-

Na Teachtaí S. Mistéal, (i gCeannas), Ardachaidh, de Bheil, Cooper-Ní Fhloinn, Ó Duinneacha, Ó Dochartaigh, Mac Dhurcáin, Ó Foghlú, Mac Cormaic, Ó Coinín.

3.Chuaigh an Coiste i suí príobháideach.

Rinne an Coiste breithniú.

Chuaigh an Coiste i suí poiblí.

4.Breithniú na gCuntas Leithreasa 1996.

Athchromadh ar bhreithniú na gCuntas Leithreasa don bhliain 1996. Cuireadh an Cuntas seo a leanas ar athló:-

Cosaint, Arm-Phinsin.

5.Finnéithe a Ceistíodh:-

D. Ó Ceallacháin (Ard-Rúnaí, An Roinn Cosanta), S. Puirséal, (An tArd-Reachtaire Cuntas agus Ciste).

6.Athlá.

Chuaigh an Coiste ar athló ar 12.57pm go dtí 11am Déardaoin 4 Nollaig 1997.

1.The Committee met at 11.00a.m.

2.Members Present:-

Deputies J. Mitchell (in the Chair), Ardagh, Bell, Cooper-Flynn, Dennehy, Doherty, Durkan, Foley, McCormack, Rabbitte.

3.The Committee went into private session.

The Committee deliberated.

The Committee went into public session.

4.Consideration of Appropriation Accounts 1996.

Consideration of Appropriation Accounts for the year 1996 was resumed. The following Account was adjourned:-

Defence, Army Pensions.

5.Witnesses Examined:-

Mr. D. O’Callaghan, (Secretary-General, Department of Defence), Mr. J Purcell (Comptroller and Auditor General).

6.Adjournment.

The Committee adjourned at 12.57pm until 11am on Thursday 4 December 1997.

DÉ MÁIRT 3 FEABHRA 1998

TUESDAY 3 FEBRUARY 1998

1.Chruinnigh an Coiste ar 2.00pm.

2.Comhaltaí i Láthair:-

Na Teachtaí S. Mistéal, (i gCeannas), Ardachaidh, Cooper-Ní Fhloinn, Ó Duinneacha, Ó Dochartaigh, Mac Dhurcáin, Ó Foghlú, Mac Giolla Dé, Ó Luineacháin, Mac Cormaic, Ó Coinín.

3.Chuaigh an Coiste i suí príobháideach.

Rinne an Coiste breithniú.

Chuaigh an Coiste i suí poiblí.

4.Breithniú na gCuntas Leithreasa 1996.

Athchromadh ar bhreithniú na gCuntas Leithreasa don bhliain 1996. Cuireadh an Cuntas seo a leanas ar athló:-

Cosaint, Arm-Phinsin.

5.Finnéithe a Ceistíodh:-

D. Ó Ceallacháin (Ard-Rúnaí, An Roinn Cosanta), S. Puirséal, (An tArd-Reachtaire Cuntas agus Ciste).

6.Athlá.

Chuaigh an Coiste ar athló ar 6.44pm go dtí 2.00pm. Dé Céadaoin 4 Feabhra 1998.

1.The Committee met at 2.00pm.

2.Members Present:-

Deputies J. Mitchell (in the Chair), Ardagh, Cooper-Flynn, Dennehy, Doherty, Durkan, Foley, Gildea, Lenihan, McCormack, Rabbitte.

3.The Committee went into private session.

The Committee deliberated.

The Committee went into public session.

4.Consideration of Appropriation Accounts 1996.

Consideration of Appropriation Accounts for the year 1996 was resumed. The following Account was adjourned:-

Defence, Army Pensions.

5.Witnesses Examined:-

Mr. D. O’Callaghan, (Secretary-General, Department of Defence) Mr. J Purcell (Comptroller and Auditor General).

6.Adjournment.

The Committee adjourned at 6.44pm. until 2.00pm. on Wednesday 4 February 1998.

DÉ CÉADAOIN 4 FEABHRA 1998

WEDNESDAY 4 FEBRUARY 1998

1.Chruinnigh an Coiste ar 2.00pm.

2.Comhaltaí i Láthair:-

Na Teachtaí S. Mistéal, (i gCeannas), Ardachaidh, Cooper-Ní Fhloinn, Ó Duinneacha, Ó Dochartaigh, Mac Dhurcáin, Ó Foghlú, Mac Giolla Dé, Ó Luineacháin, Mac Cormaic, Ó Coinín.

3.Chuaigh an Coiste i suí príobháideach.

Rinne an Coiste breithniú.

Chuaigh an Coiste i suí poiblí.

4.Breithniú na gCuntas Leithreasa 1996.

Athchromadh ar bhreithniú na gCuntas Leithreasa don bhliain 1996. Cuireadh an Cuntas seo a leanas ar athló:-

Cosaint, Arm-Phinsin.

5.Finnéithe a Ceistíodh:-

D. Ó Ceallacháin (Ard-Rúnaí, An Roinn Cosanta), S. Puirséal, (An tArd-Reachtaire Cuntas agus Ciste).

6.Athlá.

Chuaigh an Coiste ar athló ar 6.00pm. go dtí 9.30am. Déardaoin 5 Feabhra 1998.

1.The Committee met at 2.00pm.

2.Members Present:-

Deputies J. Mitchell (in the Chair), Ardagh, Cooper-Flynn, Dennehy, Doherty, Durkan, Foley, Gildea, Lenihan, McCormack, Rabbitte.

3.The Committee went into private session.

The Committee deliberated.

The Committee went into public session.

4.Consideration of Appropriation Accounts 1996.

Consideration of Appropriation Accounts for the year 1996 was resumed. The following Account was adjourned:-

Defence, Army Pensions.

5.Witnesses Examined:-

Mr. D. O’Callaghan, (Secretary-General, Department of Defence), Mr. J Purcell (Comptroller and Auditor General).

6.Adjournment.

The Committee adjourned at 6.00pm. until 9.30am. on Thursday 5 February 1998.

DÉARDAOIN 5 FEABHRA 1998

THURSDAY 5 FEBRUARY 1998

1.Chruinnigh an Coiste ar 9.30am.

2.Comhaltaí i Láthair:-

Na Teachtaí S. Mistéal, (i gCeannas), Ardachaidh, Cooper-Ní Fhloinn, Ó Duinneacha, Ó Dochartaigh, Mac Dhurcáin, Mac Giolla Dé, Ó Luineacháin, Mac Cormaic, Ó Coinín.

3.Chuaigh an Coiste i suí príobháideach.

Rinne an Coiste breithniú.

Chuaigh an Coiste i suí poiblí.

4.Breithniú na gCuntas Leithreasa 1996.

Athchromadh ar bhreithniú na gCuntas Leithreasa don bhliain 1996. Cuireadh an Cuntas seo a leanas ar athló:-

Cosaint, Arm-Phinsin.

5.Finnéithe a Ceistíodh:-

D. Ó Ceallacháin (Ard-Rúnaí, An Roinn Cosanta), S. Puirséal, (An tArd-Reachtaire Cuntas agus Ciste).

6.Athlá.

Chuaigh an Coiste ar athló ar 1.00pm go dtí 11.00am. Déardaoin 12 Feabhra 1998.

1.The Committee met at 9.30am.

2.Members Present:-

Deputies J. Mitchell (in the Chair), Ardagh, Cooper-Flynn, Dennehy, Doherty, Durkan, Gildea, Lenihan, McCormack, Rabbitte.

3.The Committee went into private session.

The Committee deliberated.

The Committee went into public session.

4.Consideration of Appropriation Accounts 1996.

Consideration of Appropriation Accounts for the year 1996 was resumed. The following Account was adjourned:-

Defence, Army Pensions.

5.Witnesses Examined:-

Mr. D. O’Callaghan, (Secretary-General, Department of Defence) Mr. J Purcell (Comptroller and Auditor General).

6.Adjournment.

The Committee adjourned at 1.00pm. until 11.00am. on Thursday 12 February 1998.

DÉARDAOIN 19 FEABHRA 1998

THURSDAY 19 FEBRUARY 1998

1.Chruinnigh an Coiste ar 10.00a.m.

2.Comhaltaí i Láthair:-

Na Teachtaí S. Mistéal, (i gCeannas), Ardachaidh, Cooper-Ní Fhloinn, Ó Duinneacha, Ó Dochartaigh, Mac Dhurcáin, Ó Foghlú, Mac Giolla Dé, Ó Luineacháin, Mac Cormaic, Ó Coinín.

3.Chuaigh an Coiste i suí príobháideach.

Rinne an Coiste breithniú.

4.Breithniú na gCuntas Leithreasa 1996.

Athchromadh ar bhreithniú na gCuntas Leithreasa don bhliain 1996. Cuireadh an Cuntas seo a leanas ar athló:-

Cosaint, Arm-Phinsin.

5.Athlá.

Chuaigh an Coiste ar athló ar 1.31pm go dtí 11am Déardaoin 26 Feabhra 1998.

1.The Committee met at 10.00a.m.

2.Members Present:-

Deputies J. Mitchell (in the Chair), Ardagh, Cooper-Flynn, Dennehy, Doherty, Durkan, Foley, Gildea, Lenihan, McCormack, Rabbitte.

3.The Committee went into private session.

The Committee deliberated.

4.Consideration of Appropriation Accounts 1996.

Consideration of Appropriation Accounts for the year 1996 was resumed. The following Account was adjourned:-

Defence, Army Pensions.

5.Adjournment.

The Committee adjourned at 1.31pm. until 11am. on Thursday 26 February 1998.

DÉARDAOIN 26 FEABHRA 1998

THURSDAY 26 FEBRUARY 1998

1.Chruinnigh an Coiste ar 11.00a.m.

2.Comhaltaí i Láthair:-

Na Teachtaí S. Mistéal, (i gCeannas), Ardachaidh, Cooper-Ní Fhloinn, Ó Duinneacha, Ó Dochartaigh, Mac Dhurcáin, Ó Foghlú, Ó Luineacháin, Mac Cormaic.

3.Chuaigh an Coiste i suí príobháideach.

Rinne an Coiste breithniú.

4.Breithniú na gCuntas Leithreasa 1996.

Athchromadh ar bhreithniú na gCuntas Leithreasa don bhliain 1996. Cuireadh an Cuntas seo a leanas ar athló:-

Cosaint, Arm-Phinsin.

5.Athlá.

Chuaigh an Coiste ar athló ar 1.30pm go dtí 2.30pm Dé Máirt 3 Márta 1998.

1.The Committee met at 11.00a.m.

2.Members Present:-

Deputies J. Mitchell (in the Chair), Ardagh, Cooper-Flynn, Dennehy, Doherty, Durkan, Foley, Lenihan, McCormack.

3.The Committee went into private session.

The Committee deliberated.

4.Consideration of Appropriation Accounts 1996.

Consideration of Appropriation Accounts for the year 1996 was resumed. The following Account was adjourned:-

Defence, Army Pensions.

5.Adjournment.

The Committee adjourned at 1.30pm until 2.30pm on Tuesday 3 March 1998.

DÉ MÁIRT 3 MÁRTA 1998

TUESDAY 3 MARCH 1998

1.Chruinnigh an Coiste ar 2.30p.m.

2.Comhaltaí i Láthair:-

Na Teachtaí S. Mistéal (i gCeannas), Ardachaidh, Cooper-Ní Fhloinn, Mac Dhurcáin, Ó Foghlú, Mac Giolla Dé, MacCormaic.

3.Chuaigh an Coiste i suí príobháideach.

4.Dréacht den Chéad Tuarascáil Eatramhach ar na Cuntais Leithreasa, 1996.

Chuir an Cathaoirleach an Dréacht den Chéad Tuarascáil Eatramhach faoi bhráid an Choiste chun a breithnithe.

Aontaíodh an Dréacht den Chéad Tuarascáil Eatramhach.

Ordaíodh: Tuairisciú don Dáil dá réir sin.

1.The Committee met at 2.30p.m.

2.Members Present:-

Deputies J.Mitchell (in the Chair), Ardagh, Cooper-Flynn, Durkan, Foley, Gildea, McCormack.

3.The Committee went into private session.

4.Draft First Interim Report on the Appropriation Accounts 1996.

The Chairman brought forward the Draft First Interim Report for consideration.

Draft First Interim Report agreed to.

Ordered: To report to the Dáil accordingly.

MINUTES OF EVIDENCE

COMMITTEE OF PUBLIC ACCOUNTS

Déardaoin, 27 Samhain 1997.

Thursday, 27 November 1997.

The Committee met at 11.10 a.m.

Members Present

Deputy Jim Mitchell in the Chair.

Mr. John Purcell (An t-Árd Reachtaire Cuntus agus Ciste) called and examined.

Vote 36 -- Defence.

Mr. David J. O’Callaghan, Secretary General, Department of Defence, called and examined.

Chairman: I welcome the Accounting Officer, Mr. O’Callaghan. Perhaps you will introduce your officials?

Mr. O’Callaghan: Mr. Pat Hogan is our financial controller, Mr. Paul Kelly is a principal officer in the Department, and Mr. Robbie Lyons is our deputy financial controller.

Chairman: You are all welcome, as is Mr. Paddy Howard from the Department of Finance. Paragraph 39 of the report of the Comptroller and Auditor General reads:

“39. Compensation for Hearing Impairment

The charge to the vote includes settlements made to soldiers who claimed to have suffered hearing impairments after they had been exposed to excessive noise while engaged on military duties. In recent years a very significant increase in the number of soldiers making such compensation claims has arisen.

By 31 August 1997, 8,956 claims for compensation had been received. Settlements had been reached in 702 cases, 30 cases had been determined by Court hearing and 17 cases were withdrawn. Compensation of £19, 355,777 and plaintiff costs of £3,107,979 had been paid in respect of the 732 cases finalised at that date.

On the basis of the settlements and court awards to date there is an unquantifiable but significant contingent liability on the State in respect of these claims.”

Mr. Purcell: Paragraph 39 draws attention to the extent of claims for compensation for alleged damage to the hearing of serving and former members of the defence forces. It is alleged in these claims that hearing damage was caused because of the failure of the defence forces to provide adequate ear protection when the claimants were exposed to various types of gunfire during their periods of service.

As an indication of the magnitude of this issue for the finances of the State, the rate of claim has increased from approximately one per week in 1992 to a current level of something like 100 per week. The latest figures available to me show that the number of claims has passed the 10,000 mark. Up until yesterday court awards had been made in 28 cases to a total value of £593,000 while there were 1,003 out of court settlements to a value of £25,648,000. Thirty-six cases have been successfully defended or withdrawn.

I should point out that the reference in the paragraph to the number of claims in which plaintiffs’ costs have been met was based on figures supplied by the Department but it is now clear they were not quite right. The most up to date position is that plaintiff costs paid by the State amount to £4,560,000 in respect of 500 of the cases finalised to date. That is an average of just over £9,000 per case.

The projected cost to the State is impossible to predict as it will be dependent on factors such as the total number of claims received, the average amount at which awards will be determined, and on the way in which the State decides to handle these cases in the future. The foregoing figures do not reflect the full cost to date because the State’s costs and legal fees are borne by the Vote for the Office of the Chief State Solicitor and both the Department of Defence and the Office of the Chief State Solicitor have dedicated staff units dealing with these claims, so there is a significant cost on the side of the State there also.

Chairman: Mr. O’Callaghan, did you want to make a general opening statement?

Mr. O’Callaghan: No, except to say that the cost figures which were supplied were the costs actually paid for the 500 cases. We did not mean to imply they were the costs for the total of 1,007 cases which have been settled to date. There are obviously costs in the pipeline. The figures mentioned by the Comptroller and Auditor General are correct.

Chairman: In preparing for this meeting I became aware in the last few days that the Department of Social, Family and Community Affairs has set standards for qualifying for certain allowances. We may wish to have access to some of that documentation before we complete hearings on this case. We may therefore not finish this issue today. Given the scale of the problem, it is probably the biggest issue this Committee is likely to face this year and I hope there is nothing commensurate with this lurking around the corner. I also suspect that there may be areas of this matter which will have to be dealt with confidentially in the public interest. If there is a request in that respect the Committee will be open to any suggestions from the Accounting Officer.

Mr. O’Callaghan: Off hand I cannot think of any aspects that we are not willing to discuss in front of the Committee. In the course of the debate we might like to bring to your attention some of the court decisions but we will be silent on the people involved.

Chairman: You kindly supplied me with a briefing document, which indicates that the number of claims so far made is 10,282. Is that right?

Mr. O’Callaghan: Yes. The Comptroller and Auditor General was right to say that in 1992 we had 49 claims in total and they have quadrupled every year since then. We have 10,000 on hand at the moment, they are coming in at the rate of 100 per week, there is no let up whatever and that is an indication of the scale of the problem. Perhaps I should say at this stage that, as the Comptroller and Auditor General said, we do not know and cannot forecast the ultimate bill. We think there potentially could be 50,000 claimants who were regular soldiers with service in the Permanent Defences Force. There is also a possibility that another 50,000 to 100,000 people with FCA service could claim. That is an indication of what we are up against. I do not want to exaggerate: that is the nightmare scenario and I do not for a moment think everyone will claim-----

Chairman: Optimism is breaking out.

Mr. O’Callaghan: -----but it will be well in excess of 10,000.

Chairman: Of the 10,282, is there a breakdown as between serving and former members of the defence forces?

Mr. O’Callaghan: Of the claims finalised, 487 are retired PDF -- Permanent Defence Forces -- personnel, and 12 are retired FCA members, giving a total of 499 retired members. There are 530 serving PDF personnel and 17 FCA personnel, giving a total of 547. Another 11 are in the category “not known”, making the total 1,057.

Chairman: Just over half the cases settled are serving members?

Mr. O’Callaghan: That is right - a total of 547. Eleven are categorised as unknown, so the total is 1,057.

Chairman: Therefore, just over half of the cases settled pertain to serving members of the Defence Forces. Is there a breakdown of the total number of 10,282 claimants?

Mr. O’Callaghan: Of retired members, there are claims from 5,430 PDF, 509 FCÁ and 13 Slua Mhuirí, giving a total of 5,952 cases. Of serving members, there are claims from 2,843 PDF, 232 FCÁ and 2 Slua Mhuirí, giving a total of 3,077.

Chairman: These figures refer to outstanding cases.

Mr. O’Callaghan: That is correct.

Deputy Durkan: In view of the serious and ongoing nature of this issue, what action is or has been taken to ensure the problem does not continue indefinitely? For example, the number of serving members who have made claims is high. As a result, what action is being taken to ensure the same problem does not recur and that hearing problems do not continue to arise?

Mr. O’Callaghan: 1987 is a watershed in the Defence Forces regarding hearing protection. Those who entered the Defence Forces from 1987 have had access to state of the art ear defenders. We have exacting regulations which are enforced and have successfully defended a number of cases presented by members who joined after 1987.

Deputy Durkan: Have many claims pertaining to the period after 1987 been successful?

Mr. O’Callaghan: Not to my knowledge.

Deputy Durkan: None.

Mr. O’Callaghan: I am not sure but my information is that no such claims have been successful.

Deputy Durkan: The Chairman has already referred to the regulations of the Department of Social, Community and Family Affairs regarding tests for hearing difficulties. What are the nature of the tests in defending and making claims?

Mr. O’Callaghan: Both sides have to produce an audiogram which is a sophisticated hearing test carried out in a soundproof booth where sounds at various frequencies are played. The responses of the person being tested are mapped on a graph.

Deputy Durkan: Is a person hospitalised prior to or during the test?

Mr. O’Callaghan: No.

Deputy Durkan: Are they observed prior to, during or after the test?

Mr. O’Callaghan: No.

Chairman: In advance of this meeting I went through the test in order to understand the process and the manner of judgement. Perhaps a similar opportunity should be arranged for all Members of the committee.

Deputy Durkan: That would be a good idea. Anybody with experience of plant, machinery and loud engine noise will find that immediately after being in close proximity to the noise they will have a totally different reaction in comparison with a week afterwards. Is such a reaction considered in these circumstances? It would appear not.

Mr. O’Callaghan: That is correct but I am aware of what the Deputy is talking about. In recent weeks we have been made aware that these tests can be distorted if the person being tested has been exposed to loud noise within the previous 12 hours. It has been suggested by way of anecdote that a temporary threshold shift will be created in the hearing pattern of a person listening to a walkman playing loud music for hours prior to the test. This will make their high tone hearing in particular appear worse than it is.

Mr. Durkan: Has this theory been scientifically examined?

Mr. O’Callaghan: It is a matter of fact.

Mr. Durkan: What impact, for example, would the attendance of a person at a disco in the 12 hour period before being tested have on that test?

Mr. O’Callaghan: It would have the same effect as listening to a walkman.

Deputy Durkan: Have there been such cases?

Mr. O’Callaghan: We are not aware of any such cases, but the medical corps are now looking at the issue and we may have to consider having people in over night.

Deputy Durkan: In those circumstances, has any decision been taken about changing the test?

Mr. O’Callaghan: We are taking advice from the medical corps and our ENT specialists.

Deputy Doherty: When were the first claims made and initial notice given that such injury had occurred and was the result of a particular activity?

Mr. O’Callaghan: In 1992 we had the first case, although there may have been an earlier case in 1989.

Deputy Doherty: Was there any previous knowledge of injury or impairment to hearing?

Mr. O’Callaghan: No, none.

Deputy Doherty: Were there many cases in 1992?

Mr. O’Callaghan: There were 49 cases.

Deputy Doherty: Were the persons claiming injury from a particular location or spread around the country?

Mr. O’Callaghan: I do not have that information but I am not aware of a particular concentration.

Deputy Doherty: Were claimants participating in similar activities or were they at any time together for an activity they claim resulted in injury?

Mr. O’Callaghan: No.

Deputy Doherty: Is it not surprising that there was no notification of such injury prior to 1992 - with the exception of one case - when there were 49 cases, while the circumstances of activity likely to cause such injury, as is claimed, had not significantly altered during 1992?

Mr. O’Callaghan: That is true.

Deputy Doherty: Is it extraordinary that in 1992, 49 cases came to notice?

Mr. O’Callaghan: Yes. 1991 was significant in that the statute of limitations was enacted. This opened a loophole. Until then, a claimant had to claim within three years of the injury. Post 1991 a claimant had three years to claim from the time he discovered he had the injury. For example, if a former soldier who served in the 1960s or 1970s had his hearing tested in 1992 and found he had high tone hearing loss, he could submit a claim. These are the type of claims being made.

Deputy Doherty: How many claims were made in 1993, 1994 and subsequently?

Mr. O’Callaghan: The number of claims quadrupled every year.

Chairman: Are any of these people driving motor vehicles?

Mr. O’Callaghan: Yes, some of them are.

Deputy Doherty: Have any made declarations saying they suffer hearing impairment that would affect the granting of driving licences? Has this been checked?

Mr. O’Callaghan: It has not arisen. I should explain my understanding of high tone hearing loss.

Mr. O’Callaghan: May I explain my understanding of high tone hearing loss. Fifty per cent of claimants with high tone hearing loss could engage in this meeting on a one to one basis without any difficulty. The telephone transmits at frequencies known as speech frequencies, so the claimants could have a normal telephone conversation without any difficulty.

High tone hearing loss comes into play if there is some background noise or music when there may be some difficulties in holding a conversation. In some medical books this is known as the cocktail party effect. If there is noise or a band playing in the background there may be difficulty in picking up some syllables or words.

Deputy Doherty: When driving in traffic would there be difficulty hearing someone blowing a horn?

Mr. O’Callaghan: Twenty five per cent of the normal population could have some degree of high tone hearing loss brought about by normal ageing.

Deputy Doherty: Has that been examined in the context of claims for compensation?

Mr. O’Callaghan: It has been argued several times in court.

Deputy Doherty: Is there evidence in Europe or elsewhere in the free world of such injury resulting in demand for compensation?

Mr. O’Callaghan: No.

Deputy Doherty: Have we been dissimilar in our protection?

Mr. O’Callaghan: No. The difficulty is that we do not have a standard acceptable measurement system for hearing handicap.

Chairman: Unlike other countries.

Mr. O’Callaghan: The Americans have the AMA system and the British have what is called the black book system. They have a threshold and if one’s hearing is under that threshold they are not considered for an Army pension or compensation. If one is above the threshold level, one is considered for compensation or pension.

Deputy Doherty: Are there plans to introduce such a system here?

Mr. O’Callaghan: Yes. The Department of Health has set up a group of ENT specialists and they will have an Irish system available in January or February of next year which we would hope would be accepted in the courts.

Deputy Doherty: It is five years since the first claims were made. Nothing has happened in the meantime to ensure some form of valid assessment could be established.

Mr. O’Callaghan: We have international systems which are acceptable in many countries. The AMA system is acceptable in many democracies. We have argued this in the courts down through the years with some success, but not with total success. That strategy has paid off because we were settling these cases two years ago for approximately £35,000 on average. That is now down to £25,000, and falling.

Deputy Doherty: Is there an age group which is more susceptible to the injury?

Mr. O’Callaghan: All age groups are affected but most litigants are between the ages of 35 and 45.

Chairman: Are there litigants as old as 80 years who did not know they had a deafness problem until the claims arose?

Deputy Doherty: In fairness, they would be well advised to discover it.

Mr. O’Callaghan: Many of the claimants did not realise they had hearing difficulties until they read about it in the newspapers.

Deputy Doherty: How many persons have notified the Department of their deafness?

Mr. O’Callaghan: Some 10,000 and there are 100 additional claims every week.

Deputy Doherty: It is a disaster.

Deputy Bell: It is ironic that my first meeting concerns my favourite subject, Defence. I will explain to Mr. O’Callaghan how the problem might have arisen.

As a recruiting officer, I am satisfied there was no provision for testing the hearing of enlisted men at any level. It was only when the first claims were made that an attempt was made to provide the necessary protection for serving members on firing ranges. The first time ear muffs were worn at a shooting competition at the Curragh in the 1980s when they were provided by me for my team in the All-Army finals. I was ordered by the officer-in-charge of the firing point to take off the ear muffs because my team would have an advantage over the other competing teams. I was the first Defence Force officer in 1981-2 to equip his team with proper ear protection in the All-Army shoots. Up to that there was no provision for the issuing of proper equipment as per Defence Force Regulations. No quartermaster had equipment in the quartermaster’s store for the issuing of ear protection to serving members. Members were not just firing Gustaf rifles and other automatic pistols, they were firing anti-tank weapons without any form of protection. As a serving member of the Defence Forces for 29 years, I must say the Department and the Government of the day deserve what they get because they were guilty of negligence of the highest order. They were in breach of all the health and safety regulations. When the first claim was made, I forecast it would exceed £500 million. I am satisfied that forecast will be exceeded. I know the damage that has been caused because I fired every weapon available to the Defence Forces at the time. I know the damage it caused to myself. As a member of this committee and as a Member of Dáil Éireann, I have no sympathy with the Department in this matter. I ask Mr. O’Callaghan, as Secretary of the Department of Defence, to have these matters dealt with quickly. These men have given loyal service to the State, some on a voluntary basis, particularly during 1969 when the Northern Ireland troubles started and PDF members were not available. Very little gratitude has been shown by the State to these men for the service they have given. I get angry because I know there was negligence on the part of the State.

Is a personal kit issued directly to every serving member or is that kit available in the quartermaster’s stores? How are the kits issued during range practice? What supervision is there in relation to the issuing of ear protection and what training have officers in charge of training ranges been given to ensure they can operate the system of ear protection?

Have NCOs or other officers been sent on special courses to avail of the maximum protection for their health and safety?

Mr. O’Callaghan: I assure the Deputy that since 1987 there has been a very rigid and exacting regime in regard to firing in the Army. Not only are ear plugs issued and ear defenders made available but also officers are trained and a routine order is given on firing ranges; part of the drill is that ear protection is checked. In addition, there is a record that each soldier is wearing his ear protection, a practice that existed in the past but cannot be proved in court.

While I accept what the Deputy said, and I was a member of the FCA, maybe we are being a bit harsh on the Army by saying there was absolutely no ear protection. There were regulations in the 1950s that cotton wool had to be worn, there was a personal issue of what was known as the “hard plugs” in the 1970s and the soft plugs were issued on a personal basis to every soldier in the 1980s. They now wear the muff and the plugs. The very tight health and safety standards which exist now are being unfairly applied to the Army of the fifties, sixties and seventies where there was not the same safety culture. Were we all wearing seat belts then? I played hurling in the sixties and seventies and I did not wear a helmet. Ex-soldiers told me that for safety reasons emphasis was put on ensuring orders were heard and that is why soldiers did not wear plugs. They were aware the noise of artillery guns and of all weapons in the Defence Forces could cause damage.

There is no difficulty paying people who have been deafened; they are paid quickly and substantially. Our difficulty is we have been advised by ENT specialists that some people have little or no handicap but are being awarded large sums of money. They would not get any compensation in jurisdictions such as Great Britain or America.

Chairman: In no other jurisdiction?

Mr. O’Callaghan: Yes.

Chairman: There is a difference between hearing loss and handicap?

Mr. O’Callaghan: Yes.

Chairman: Is it a fact that with the normal ageing process there is inclined to be some hearing loss in the average person?

Mr. O’Callaghan: Yes.

Deputy Durkan: Have you data?

Mr. O’Callaghan: There are tables but we cannot get them accepted in court.

Deputy Bell: While I appreciate some people may have been aware of the issuing of ear protection, various units within the Defence Forces were not. Mr. O’Callaghan must be referring to artillery units, not to infantry units, because I served on the border with four or five different infantry units and I never seen any issue of ear protection whatsoever in the 29 years I served and I fired in every competition from the Battalion Brigade Command and won them down to the all-Army. Mr. O’Callaghan’s unit must have been very exclusive because that has not been my experience.

Mr. O’Callaghan: The Deputy will agree there were regulations.

Deputy Bell: Yes, but they were not applied and, therefore, that doubles the negligence.

Mr. O’Callaghan: There was a considerable amount of money spent on ear protection.

Deputy Bell: I was a quartermaster sergeant and never seen them. I was in charge of Gormanstown Camp and never seen them in any stores. I do not know what unit Mr. O’Callaghan served in but it certainly did not happen in any of the units in which I served. That is the information from all my comrades throughout the country and I also had discussions with people in the representative bodies. I do not deny it may have happened in some units. I have seen artillery officers issuing ear protection to their units but I have never seen it in infantry units.

These cases will multiply not only by 100 a week because the more publicity this matter is given the more people will become aware of why they cannot hear a conversation in a pub and why they cannot hear clearly on the telephone. What consideration is the Department of Defence giving to speeding up the processing of these claims? If they continue to increase at the present rate it will certainly be many years before all cases are dealt with. Is any consideration being given to forming a tribunal which would make it easier and less costly to process the claims?

Mr. O’Callaghan: As I mentioned earlier, the Department of Health have an ENT group who are currently putting together an Irish standard. I do not think we could consider setting up a tribunal until there is a measurement system and a standard that could be applied. Unless the tribunal issued awards similar to those being awarded by the courts people would not opt for it; they would still have a right to go to the courts. I do not know if much money would be saved there.

There are two problems: there is no measurement system and we firmly believe the quantum being awarded is much too high. Cases have been argued in court and people with normal hearing for their age are being awarded between £20,000 to £45,000. There was a case earlier this month where the ENT specialist said a man’s hearing was perfect for his age and he was awarded £45,000.

Deputy Bell: Is Mr. O’Callaghan saying that everybody awarded money by the courts had no hearing problem, or is he giving one example?

Mr. O’Callaghan: About 50 per cent of the cases fought in court have gone against us. We won the other up to 50 per cent.

Deputy Ardagh: Based on the numbers before Mr. O’Callaghan at present and on the number of people he expects to make claims in this regard - the present force and retired people and extrapolating on the level of awards and costs involved - what does he see as being a minimum and a maximum liability on the part of the State for all these claims?

Mr. O’Callaghan: On current quantum we have a bill of £350 million, minimum.

Chairman: With 6,000 cases at the average settlement the total involved would be £1.7 billion.

Mr. O’Callaghan: That is correct. One important issue is that we produce a system not accepted by the courts. If, for instance, the AMA system which is used in America was accepted by our courts and that people with zero handicap got zero compensation, up to 50 per cent of claimants would have no case against us.

Deputy Ardagh: But that is not the way it is panning out.

Mr. O’Callaghan: No.

Deputy Ardagh: While I accept what Deputy Bell said and realise there has been great suffering on the part of the vast majority of claimants, there also appears to be anecdotal evidence that scams are being perpetrated. Deputy Durkan implied that discos may be used and Mr. O’Callaghan also suggested there may also be anecdotal evidence. Methods may have been used to increase the chances that they would be seen by an ENT specialist to have hearing difficulties. Will any investigations be carried out as to whether scams have been perpetrated? With respect to those who have suffered in this regard but with the litigious nature of people there are always those who will jump on the bandwagon, what precautions are being taken to ensure no scams are perpetrated against the Department?

Mr. O’Callaghan: I do not wish to exaggerate and I referred to one anecdote about walkmans which can affect one’s hearing levels temporarily. We have no evidence of any widespread scam. If we suspect an individual is malingering or trying to fake his or her audiogram, we can send them to the Beaumont Hospital where there is specialised equipment for cortical electric response, CER, tests which measure brain patterns. Apart from a temporary threshold shift, it is impossible to fake one but if one has just come from a noisy environment, the wave pattern will reflect that.

Chairman: One can also fake tinnitus.

Mr. O’Callaghan: There is no measurement or objective test for tinnitus. If I say if I have it, my word has to be taken but an interesting statistic is that 95 per cent of claimants claim it.

Chairman: This has not happened in any other armed force in the world. Anyone who thinks this is not a scam must be blind. There are, of course, people who have been handicapped and should be rewarded. Ireland is a laughing stock among Defence Forces throughout the world. I have gone to the bother of checking with a number of them on this. It is the talk of armed services around the world and has the potential to undermine confidence in the Defence Forces.

Mr. O’Callaghan: I agree with you but I do not like to use the word “scam”. There are many good things going on in the Defence Forces, such as reorganisation and re-equipping. Various studies are being carried out and the infrastructure is being built up but this is a black cloud affecting everything.

Deputy Ardagh: Mr. O’Callaghan expects a minimum of £350 million to be the total cost of claims. He has not suggested a maximum, while the Chairman has suggested £1.7 billion. How much has been provided for in the Department’s Estimates for 1997 and 1998?

Mr. O’Callaghan: The Supplementary Estimate for 1997 will bring the total cost to £38M and we have provided £80 million for hearing cliams in 1998.

Deputy Ardagh: How much was provided in the original Estimate for 1997?

Mr. O’Callaghan: A sum of £16 million was provided for all compensation claims.

Deputy Ardagh: So the Supplementary Estimate will be for £22 million?

Mr. O’Callaghan: No, there are savings under other headings which will give a net figure of between £12 and £13 million.

Deputy Ardagh: There is a substantial saving of £9 million. How many cases will £80 million cover based on present levels of awards and costs? What dent will it make in the 9,000 or so cases still outstanding without taking into account new cases which will arise?

Mr. O’Callaghan: The figure was based on the rate at which the High Court is hearing cases and at which they are being settled. Between 4,000 and 5,000 cases are expected to be finalised in 1998.

Deputy Ardagh: Mr. O’Callaghan expects to settle between 4,000 and 5,000 cases next year at a cost of £80 million which is 50 per cent of the outstanding balance, yet he says that he is looking at a minimum cost of £350 million. How many more cases does he expect to be taken?

Mr. O’Callaghan: We must expect 5,000 per year - 100 per week.

Deputy Ardagh: There was 200 per week in October.

Mr. O’Callaghan: It averages out.

Deputy Ardagh: It is a huge cost and a great worry for the Department. Does it take up most of its time?

Mr. O’Callaghan: It is its number one priority. We have to had to set up a section with 20 civil servants using existing resources to deal with this. The Chief State Solicitor had to get 20 additional solicitors and there are 8 to ten officers in the army dealing with this. It is a huge assault on the Exchequer.

Chairman: It is must be the number one priority in the Department of Finance also.

Deputy Cooper-Flynn: Why is the cortex test not made compulsory in all cases given that it is supposed to eliminate faking? What is the average exposure to gunfire a typical soldier would have annually? Of the cases before the Department, how many relate to soldiers who would have only had a few hours of exposure to gunfire in a year and how many would have been exposed to a significant amount?

Mr. O’Callaghan: We refer people for the CER test on advice from our ENT people. It is not done automatically but on medical advice.

An operational soldier attends annual range practice and would fire 111 round which would take about one hour and a half. He would also do two other practices during the year of a few minutes each - firing 40 rounds in total. There is less than two hours exposure per annum and a total of about 150 rounds.

Ms Cooper-Flynn How would you compare it to someone like myself who might be at a rock concert for three hours. What level of noise are their exposed to?

Mr. Callaghan: I would imagine that impact noise from a gun would be higher than the average disco. I am not sure what the noise levels are at discos. I saw, I think on Friday evening’s news, where someone had a meter in the middle of a disco and the needle was going off the scale which had a maximum of 110 decibels. The Styer rifle that is used by the army has a noise level of 145 to 150 decibels.

Ms Cooper- Flynn: So they probably would be comparable. An average teenager might attend a disco for two or three hours once a week.

Mr. Callaghan: That is worth noting. The Minister, Mr. Smith, mentioned during a recent Question Time in the Dáil some alarming statistics concerning the testing of new army recruits. In the Eastern Command about 18 to 20 per cent of new recruits who were given a medical examination had high tone hearing loss and were rejected accordingly. That is by no means a scientific analysis but it is an analysis none the less. We have examined other Commands. In the Southern and Western Commands we have found that the rejection rate was not quite so high - maybe 7 or 8 per cent. There may be an urban/rural factor here and it is being further analysed. The message is that young people’s hearing is being damaged whether the rate of damage is 8 per cent or 18 per cent. It is a serious problem. These people certainly cannot work in the Defence Forces and whether other employers will take them on I do not know. If they had got through in the past they would have the basis of a claim now.

Ms Cooper-Flynn: What age groups are we talking about and would many of the claimants be young soldiers? Would it be their lifestyle that has led to their hearing loss?

Mr. Callaghan: The average claimant is aged about 41 years. Younger soldiers who came in after 1987 would not have a good case because we got our act together in 1987.

Ms Cooper-Flynn: When soldiers join the Army do they get a manual setting out instructions and the risks that they might be exposed to during gun fire? Since when, if so, have they been given this manual? Has it been issued for the past 30 or 40 years or is it something that has been introduced recently?

Mr. Callaghan: Since 1987 we have had a very strict regime. Since then they would have been instructed, in fact they would have been ordered, to wear hearing protection on the firing range on a particular day and the order would have been recorded. Prior to 1987 there were regulations. Regulations have been in existence since the 1950s which were updated in the 60s and 70s. Ear protection was supplied. It was made available. I know that Deputy Bell has a different experience but ear protection was purchased and was made available. We cannot prove in court that Private Bloggs, on such and such a day, was ordered, was supplied with and was wearing his ear protection.

Ms. Cooper-Flynn: In the Irish defence forces for the last 30 years have we been doing something radically different from all other countries? Have we been a little sloppy in out instructions or would similar practices apply in all other countries? If it is the same throughout other countries why have we got such a crazy situation on our hands right now. I do accept that there are some genuine cases among them?

Mr. Callaghan: We must always say that there are genuine cases and we want to deal with them sympathetically and speedily but no other country with an army has the problem that we have?

Ms Cooper-Flynn: Where is the problem in Ireland? Is it in the court system?

Mr. Callaghan: We have a very litigious society, in my view. We have no accepted measurement of handicap for high tone hearing loss and, while I do not wish to be critical of the judiciary, we have a very generous judiciary. Very generous awards are being given.

Mr. Dennehy: I have an observation on a comment you made yourself, Chairman. You commented that we will be an international laughing stock. The greatest laughing stock to emerge, so far, in this debate is the person in charge - the captain or whoever - who gave the instructions to Deputy Bell’s unit to remove ear protection so as to have an advantage. This happened in the modern age and this is really the laughing stock. It is frightening that someone with that sort of thinking could be in command at that level. I come from a background in heavy industry and I have some knowledge of this matter. I am shocked to hear that the Army got its act together as late as 1987. It would have been a dismissing offence in the industry in which I worked - and I served as a safety officer for part of the time -not to wear ear protection at that time and even ten years earlier. I would like to ask Mr. Callaghan does he feel that the Army were very negligent in taking so long to get fully organized on this matter. There was an awareness, internationally, of the damage that was being done. There were measurements and I am amazed that the noise level from one round is 145 dBA. A noise of this level happening once to a person has a damaging effect. One exposure to 145 dBA has a damaging effect on hearing which does not come back. The hearing is like a field of corn. It goes down a little and does not come back. I am convinced that discos will have claims against them within the next five or six years. Musicians have gone deaf from the noise of the group playing behind them. I am concerned to-day, however, about the Army and I would ask if there has been a degree of negligence. This debate is like that of TB eradication. Raising the issue evokes a giggle and we tend to take sides either for the Army or for the soldiers but there are many areas in between that this Committee must get right. We must keep the bill for this affair as low as possible and at the same time accept our liabilities and look after the genuine cases. Is there a degree of liability in being so late into the field of proper protection and of enforcing that? I would have expected that an order given in the Army, of all places, to wear ear protection would have been carried out.

Mr. Callaghan: I accept what Deputy Dennehy says. I must repeat that there was awareness in the Army, as early as the 1950s, that impact noise could cause hearing damage. Regulations were issued accordingly in the 1950s. Ear protection which was probably state of the art at the time - cotton wool, then moistened cotton wool - was used.

That is what was available at the time and was being used by other armies. In the 1970s each soldier was issued with hard plugs while soft plugs were issued in the early 1980s. Despite stories that people were told to take them off, the regulations were in place and hearing protection was provided. Some officers say they enforced it but they cannot prove that on a particular day an individual private was ordered to and did use his hearing protection. From 1987 there was a new culture, perhaps following the health and safety legislation. Regulations were more stringently enforced and records were kept which can be produced in court showing that everybody on a particular day on the firing range was wearing hearing protection.

Deputy Dennehy: The comments to date have revolved around the amount of money people get, whether genuine or otherwise. There is one particularly large group involved in this nightmare scenario as described by Mr. O’Callaghan, namely, members of the legal profession who do not suffer from deafness. What percentage of the total bill is being allowed for the non-claimants, i.e. those on the legal side?

Mr. O’Callaghan: The average award last year was £30,000. The legal costs of the plaintiff in such a case would be around £9,000. Approximately £5,500 would go to the plaintiff’s solicitor and approximately £2,200 in total to his senior and junior barristers. Miscellaneous expenses would amount to £2,000 and would include witnesses and medical people.

Deputy Dennehy: Is it accurate to suggest that 25 per cent of the total bill consists of the plaintiff’s legal costs?

Mr. O’Callaghan: To which could be added our costs and the administration costs which are significant.

Chairman: Is there an overall State cost per case?

Mr. O’Callaghan: In addition to the £30,000 and the £9,000 for the plaintiff’s legal costs, we add a further £6,000 to get the total cost. The total bill, therefore, is £45,000.

Chairman: So an additional 50 per cent of the award is added in costs.

Mr. O’Callaghan: That is correct.

Deputy Dennehy: I suggest that we may be in a position to make recommendations on this matter. The critical issue is that we arrive at some formula for dealing with this matter that takes it out of the courts, that gives money directly to those who have suffered damage as a result of negligence by the State and that cuts out the middle man. In that context, it is fascinating that last week we debated at length the need for one solicitor in the Revenue Commissioners and we can get 20 for this. It shows how we tend to react after the event.

We should focus on this issue. It might reduce the number of new claims because the advertisements might no longer appear in the newspapers encouraging people to make claims. A tribunal was mentioned, but I realise it will not be easy and that it is not the place of Mr. O’Callaghan to come up with policy proposals.

What percentage of the Department of Defence’s budget has been paid in compensation this year what is the anticipated percentage for next year?

Mr. O’Callaghan: Our total budget is about £500 million and £38 million will be spent this year on compensation.

Chairman: £80 million has been set aside for this purpose in next years Estimates.

Deputy Dennehy: It is a huge percentage and I wish Mr. O’Callaghan well. I appreciate his job will not be easy and that the problem is not of his making even though he fired a few guns himself at some stage. Hopefully we will have learned lessons from this issue.

Deputy Rabbitte: Since I asked that this meeting be rostered as early as possible based on the letter we received at our first meeting from the audiologist, there are two issues I would like to put to Mr. O’Callaghan. I know he inherited the problem and the shear awfulness of it has been well absorbed by him. However, for taxpayers and the public who do not know the parameters of this, the question they want answered is who is responsible? It is not the first major lapse on the part of the State or a State agency. Who is responsible for this fiasco? Is it Mr. O’Callaghan’s predecessors or the leadership of the Defence Forces? How could the problem have been allowed get to this stage? Without passing judgment on the alleged injuries done to serving or past members of the Defence Forces, who is responsible? Does anybody ever say they made the wrong decisions?

Mr. O’Callaghan: I appreciate what the Deputy says, but if it was as simple as the military looking for ear defenders in the 1950s, 1960s and 1970s and a parsimonious Department not providing them, it would be easy to answer his questions. However, this was not the case. The regulations were present and the ear defenders were provided. We understand that our hearing protection was on a par with other armies around the world, whether it was cotton wool in the 1950s, ear plugs in the 1970s or ear muffs in the 1980s. It is hard to say if various generations of army management were responsible, but at present we are retrospectively and unfairly applying modern safety standards to the 1950s, 1960s and 1970s.

Deputy Rabbitte: Is there any record in the Department of representations having been made over the years saying that if the question was not addressed there would be consequences?

Mr. O’Callaghan: No, not that I am aware of.

Deputy Rabbitte: This is a very litigious society. This matter is now being dealt with for a considerable period of time and reference was made to the objective measurement system, etc. Will discovery of a cheaper way of processing this matter come too late? The cases are current and are appearing before the courts as fast as the courts can take them with an additional 50 per cent of the overall award going on costs. Is this not an urgent matter in terms of the Mr. O’Callaghan’s advice to the committee and the policy recommendations it might make? Should we not call a halt and seek to establish an alternative mechanism which could more cheaply resolve the issues at stake.

We should call a halt and seek to establish if there is any alternative mechanism which could resolve the issues at stake more cheaply.

Mr. O’Callaghan: We have given much consideration to that point. There are three factors affecting cost. First, there is the volume of cases and the rate at which they are being received. Some 10,000 are on hand with 100 new cases being received each week. There is a potential claimant population of 150,000. The second factor is the awards made in court, with £30,000, £40,000 or £50,000 awarded to people with zero handicap according to the American system. The third factor is costs. We are concentrating on the quantum and the number of claims. If costs are to be reduced, the white flag should be raised on the matter of liability. We should say we have deafened the soldiers badly, that each claimant has severe hearing damage and that we should pay out promptly. A saving is made on costs but the State will have a huge claims bill.

The strategy of fighting selected cases has paid off. In 1994, we were paying £35,000 on average to settle a case. That has been reduced to £25,000 now. It has paid off to fight cases in court and argue our position, thus educating the judiciary. We have reduced the average settlement by about £12,000. Legal costs are galling. Solicitors earn huge amounts of money by making slight amendments on their word processors, because the statement of claim is identical in all cases. We do not want to be diverted by that. Our primary concern is to protect taxpayers’ money. We believe the quantum is too high. If a tribunal is established, it would have to be on the current level of settlement as people would otherwise resort to the courts.

Deputy Rabbitte: Even if a tribunal were established at the quantum, the legal costs associated with it would surely be considerably cheaper. Looking at the graph, one would think we were dealing with a virus. Some 10,282 cases is extraordinary. Mr. O’Callaghan has explained all the figures but where will it end? I am sure Mr. O’Callaghan has given it much thought but it seems to me that, if those cases are dealt with in the normal adversarial manner and the accompanying legal fees are paid, it would surely be more expensive than a tribunal, even at this late stage. The cases would be heard before a judge and competently handled, the medical evidence would be the same and there would not be the same extent of a per capita award in legal expenses each time.

Mr. O’Callaghan: The quantum is being set in the courts and it is too high and erratic. One judge may award £20,000 and another may award £45,000 for the same level of disability. It would be premature to consider a tribunal until we receive our measurement system for hearing handicap which can advise the tribunal and give a scale of awards related to handicap.

Deputy Rabbitte: How would it handicap the tribunal as distinct from the court? When does Mr. O’Callaghan forecast it being received? Will many of the cases not have been heard? What percentage of them will be disposed of by then?

Mr. O’Callaghan: I am optimistic we will have the new system from the Department of Health and Children by the next law term. In this business one has to be an optimist but it is worth waiting to see if 40 or 50 per cent of the claims will fall outside the new system.

Chairman: What are the average award and the average costs to date?

Mr. O’Callaghan: The average award is £25,000.

Chairman: What are the average costs, including State and plaintiff costs?

Mr. O’Callaghan: The £15,000 I mentioned earlier would not vary much if the person’s award were £25,000 or £30,000.

Chairman: We are talking of £40,000 per case as the total cost to the State. That is higher than £1.7 billion because, if the maximum figure of 50,000 mentioned earlier is multiplied by £40,000, that is £2 billion. Am I correct?

Mr. O’Callaghan: You are correct.

Chairman: When was the group of ENT consultants asked to draw up this standard?

Mr. O’Callaghan: At the end of August.

Chairman: When was the first claim?

Mr. O’Callaghan: The first claim was made in 1992.

Chairman: When did this become a manifest problem? When did this start gathering momentum?

Mr. O’Callaghan: In 1996.

Chairman: I cannot understand why the State waited so long to draw up this standard. You mentioned in your earlier testimony that the American standard is used by several other jurisdictions which we know to be the case. Why can we not adopt the American system?

Mr. O’Callaghan: It is the system we produce and which our ENT experts argue in court, but it is not finding favour because the plaintiffs produce an ENT expert who has a different opinion more favourable to them.

Chairman: Would it be true to say the overwhelming majority of ENT surgeons favour adopting something close to the American system?

Mr. O’Callaghan: Yes.

Chairman: Is it a very small minority of ENT surgeons who take the opposite view?

Mr. O’Callaghan: Yes.

Chairman: Did any of these ENT surgeons work previously for the Department of Defence?

Mr. O’Callaghan: Yes.

Chairman: Did they leave the Department of Defence with any gripe against the Department?

Mr. O’Callaghan: Not that I am aware of.

Chairman: Has there been any conflict, differences of opinion or alienation?

Mr. O’Callaghan: I think I know the person about whom you are speaking and there may be a question of pension entitlements.

Chairman: Why can the Department of Social, Community and Family Affairs hearing impairment standards for assessing disability pensions not be used?

Mr. O’Callaghan: We have mentioned them in court but they have not been accepted as they are very similar to the American system.

Chairman: Is it true to say that, if the Army claimants applied for social welfare pensions under the Department of Social, Community and Family Affairs rules, only a small proportion of them would qualify?

Mr. O’Callaghan: That is correct.

Chairman: What percentage would qualify? Is it 20 per cent?

Mr. O’Callaghan: It is probably 30 to 35 per cent.

Chairman: Do you mean 30 to 35 per cent of people who are actually getting awards in the courts?

Mr. O’Callaghan: Yes.

Chairman: We have a major systems failure here; there is no system in place to deal with this sort of thing and there is no alternative to the courts at this time.

Mr. O’Callaghan: We have tried to convince the Judiciary to use the American system.

Chairman: In other jurisdictions, these things are decided on a medical basis. Is it not true that systems are in place to deal with this in the UK, Germany, the US, Canada and almost every other developed country apart from Ireland?

Mr. O’Callaghan: Yes.

Chairman: Other jurisdictions have a set-down system for evaluating deafness or loss of hearing in terms of handicap.

Mr. O’Callaghan: That is correct.

Chairman: Hearing loss and handicap are not the same thing. We have no system to deal with these issues.

Mr. O’Callaghan: No, we do not.

Chairman: The question arises as to why we do not have such a system five years since the first claim was made.

Mr. O’Callaghan: That is true.

Chairman: This issue could cost the State as much as £2 billion if present trends continue.

Mr. O’Callaghan: That is the nightmare scenario. However, I am an optimist; I hope the Irish system would be accepted and that many of these claims would fall by the wayside with the marginal ones attracting lower awards.

Deputy Rabbitte: I suppose one could view this as a method of distribution of wealth which other countries have not yet heard about.

Chairman: I suggest that we should adjourn the hearing on this issue until another date. There is a possibility that we may wish to call external or expert witnesses on the subject. This is a very grave matter on a scale which this committee has never previously dealt with, in spite of the many huge scandals which have erupted during my tenure in the Dáil. This is an urgent matter and I would like to have a further hearing as soon as possible, certainly not later than early January. I will return to the committee with a proposal next week. Are there any other issues in relation to the Defence Forces about which Members wish to ask questions?

Deputy Dennehy: I have a bee in my bonnet concerning a matter under subheading A.6. which refers to savings in the Department’s offices at Parkgate Street. The Navy per se is located at Haulbowline in Cork but the officer of the commanding section is located in Parkgate Street in Dublin. Aside from the operational aspect, is there a financial cost associated with splitting up the Navy and its commanding section? What rationale is behind this? It sounds slightly ludicrous.

Mr. O’Callaghan: The Deputy is quite right; until quite recently, the Flag Officer was based in Parkgate but is now located in Coláiste Chaoimhín on Mobhi Road.

Deputy Dennehy: I imagine that would be even more expensive.

Mr. O’Callaghan: It may also be further from the sea. If the flag officer and his staff occupy accommodation, there is obviously an associated cost. Price Waterhouse consultants are looking at the entire organisation of the Navy at the moment. I suspect they will be recommending changes in the management structures and possibly in locations also.

Deputy Dennehy: It strikes me as having something to do with prestige and social climbing and I find it ludicrous.

In relation to United Nations receipts, I was glad to see that where the Department estimated an intake of £2.5 million, the actual figure was £4.8 million. How much does the UN currently owe?

Mr. O’Callaghan: The UN currently owes £10.67 million although the figure is decreasing every year. The United States has made some sort of arrangement to pay off its arrears and we are experiencing an improvement in payments. Two years ago, the UN owed us £13 million but that figure has decreased to £10.6 million.

Deputy Dennehy: That is a welcome trend. The expected recoupment from the EU in relation to expenditure on fishery protection in 1995 was down substantially. Why was this? Did it have something to do with the unavailability of ships to carry out the operation or was it an administrative or operational problem?

Mr. O’Callaghan: It was not an operational problem. The figure would depend on what our capital outlay on fishery protection was and what EU refunds we received. In 1995, we received recoupment for the CASA aircraft and we expect to get £900,000 this year from the EU in respect of 1996.

Deputy Dennehy: Am I correct in understanding the problem is caused by delayed payments?

Mr. O’Callaghan: Yes.

Deputy Dennehy: Vote 37, deals with pensions, an issue dear to our hearts. Subheading J. refers to the provision of grants for free travel, electricity and so on to certain veterans of the War of Independence and certain spouses. The estimates provision for this was £525,000 but the out-turn was only £190,000. We could presume that fewer people availed of these. Subheading K. refers to funeral grants in respect of deceased special allowance holders and so on. The out-turn was also down in this area from an estimated expenditure of £85,000 to an actual out-turn of £47,000. How can these figures be reconciled? It would appear from the decreased expenditure under subheading J. that people were dying.

Mr. O’Callaghan: We did not curtail the service to any of the people involved but we did negotiate a better deal with CIE for the free travel scheme.

Deputy Dennehy: Are you seriously telling me that £300,000 was saved through this measure?

Mr. O’Callaghan: Not all of it was saved through the renegotiation with CIE but the vast majority was.

Deputy Dennehy: I do not know who achieved this but they have certainly done a very good job.

Mr. O’Callaghan: The numbers availing of these services are also decreasing.

Deputy Dennehy: I thought that would have been reflected in subheading K. which deals with funeral grants but it did not appear to be. The out-turn on funeral grants was only 50 per cent of the estimated cost. The reduction under subheading J. would not seem to be explained by the fact that people were dying.

Mr. O’Callaghan: The £500 funeral grant is payable in respect of veterans, not their widows.

Deputy Bell: In relation to permanent Defence Force pay and allowances, I understand that serious consideration is being given to PDFORRA’s and RACO’s claim to achieve some parity with the Garda Síochána in relation to Border duty and allowances. I am sure everyone is aware of the discussions which are taking place in that regard. Is there any provision for that under Vote 36, subheadings B. and C. on page 269 which deal with Defence Force pay and allowances?

Mr. O’Callaghan: The short answer is no. When we reach a negotiated settlement under the PCW with PDFORRA and RACO on revised allowances it will come out of the Vote for remuneration in due course.

Deputy Bell: When are those negotiations likely to be completed?

Chairman: We must concentrate on the work of the Public Accounts Committee. We are looking at how money is spent rather than policy decisions.

Deputy Bell: I understand that. I asked the question in the context of the section of the accounts which provides for Defence Force pay and allowances.

Chairman: Those questions are more appropriate to the Estimates debate.

Deputy Bell: Vote 36 refers to transport, equipment and buildings. I was amazed to see a surrendered surplus of £3.442 million when it appears that some obsolete transport urgently needs to be improved. Many of the buildings and barracks belong in the Stone Age. Why should we surrender £3.442 million when it could be spent on such urgent needs?

Mr. O’Callaghan: Is the Deputy referring to the 1996 or 1997 outturn?

Deputy Bell: I am looking at Vote 36 on page 270 which says that the surplus to be surrendered is £3.442 million.

Mr. O’Callaghan: Sorry, I thought the Deputy was looking at the amount surrendered under subhead V, the buildings provision. We had an excess under buildings in 1996.

The amount surrendered is less than 1 per cent of the total Vote; anything less would mean cutting it very finely. There was more or less 100 per cent expenditure under all headings. I take the Deputy’s point that we need to invest a large amount in infrastructure, which is being done. We will spend about £14 million next year on infrastructure and transport.

The main reason for the £3 million surplus is that our appropriations in aid United Nations payments increased by £3 million which we did not anticipate. It is very difficult to anticipate how much the United Nations will pay out and when it will be paid. We received a cheque from the UN on 28 or 29 December.

Deputy Bell: What is the situation in regard to the Department delegating more responsibility for the administration of the Estimates to the Defence Forces directly?

Mr. O’Callaghan: For the last number of years we have been delegating more and more of the day to day administration and budgets to the military authorities. They now administer about 50 per cent of the non pay subheads. Arguably, the military authorities are in entire control of subhead B, which covers pay because they control the personnel. There will be another tranche of delegation to the military authorities on 1 January next. That is working very well.

Deputy Bell: What is the up to date position on the early retirement scheme? Have all the applicants been processed? Have all the payments been made in the current financial year? Are they reflected in the Estimate or will an additional sum of money apply to next year?

Mr. O’Callaghan: All 1997 applicants have been processed. The voluntary early retirement scheme commenced in 1996 when 500 personnel of all ranks - 61 officers and 439 enlisted personnel - took early retirement at a total cost of £15.9 million. In 1997 68 officers and 667 enlisted personnel, giving a total of 735, took early retirement at a total cost of £25.8 million plus carry-over pension costs from 1996 of £3.9M. A provision of £23.1 million has been made in the Estimate for 1998, which will be the last year of VER scheme. in 1998 350 personnel will be offered VER.

Deputy Dennehy: On page 275 it states that both the estimated and realised figure for receipts from banks in respect of cash escort services was £2.25 million. Does that amount cover the full operational cost of providing that service? It seems unusual that the outturn was exactly the same as the estimated provision.

Mr. O’Callaghan: That figure is fixed by the Minister for Finance. It has not been revised for some years. We receive £2.25 million and, as far as I know, the Gardaí receives £0.75 million. The total charge to the banks, therefore, is £3 million.

It covers our additional costs. Soldiers who conduct cash escorts receive security duty allowances. It does not cover salary costs.

Deputy Dennehy: Therefore, it covers everything except their normal time in barracks.

Mr. O’Callaghan: Yes, by and large.

Deputy Dennehy: The witness said the amount has not been increased for some time. Considering the profits made by the banks, should we make a recommendation on that aspect? When was that figure set?

Mr. O’Callaghan: In 1995.

Chairman: It is not in order for this Committee to make recommendations. It is a matter for the Estimates debate or the new committee on legislation and security.

Deputy Dennehy: Thank you - I am learning from you.

In regard to the sales of surplus stores, the outturn was treble the estimate: ££442,000 rather than £150,000. What were the Defence Forces selling off?

Mr. O’Callaghan: It is mainly what the military call ordnance, such as old rifles. There is still a market for them in gun clubs in the US, for example. The old 303 is still a very popular rifle in the US.

Deputy Dennehy: It is a good sign that £3 million more than was estimated was received.

Chairman: The Department of Defence owns a huge amount of property.

Mr. O’Callaghan: It owns 21,000 acres.

Chairman: There is a huge property boom at the moment with a great shortage of development space for housing, particularly in Dublin. Is the disposal of property kept under review?

Mr. O’Callaghan: Very much so. We try to sell any parcel of land we can.

We got out of Collins Barracks recently. Rather than close barracks, the Minister has asked us to review the possibility of walling off strips of land to make them available for housing. We are given this active consideration at present.

Chairman: As a public representative in the city of Dublin I am aware that there will shortly be a crisis in the city because it is running short of building land. Dublin Corporation cannot find locations. Nevertheless, there are various old barracks in the heart of my own constituency. Perhaps consideration should be given to disposing of barracks which are near to the inner city with a view to building newer barracks on the outskirts. This would assist the development of the city.

Mr. O’Callaghan: Is Clancy Barracks one of the barracks you have in mind?

Chairman: Yes. I was recently invited to join a retiring FCA officer in Cathal Brugha Barracks in Rathmines. Apart from noting how well kept it was I was also impressed at the huge amount of land. It is in a prime location in Dublin 6. I am not sure if you can relocate, but it is very valuable property.

Mr. O’Callaghan: It has been suggested that we sold the wrong barracks; we should have sold Cathal Brugha Barracks, not Collins Barracks. Cathal Brugha Barracks would be a more attractive location for the purposes you mention. However, we are not considering selling it at present. We have invested heavily in it, mainly to house those who left Collins Barracks and did not go to McKee Barracks.

Chairman: When I was Minister for Transport, CIE faced severe financial problems. It owned a huge portfolio of property which it never occurred to the company to develop even though the private sector was developing property everywhere. The slump intervened, but now that we are out of that I draw these possibilities to your attention.

We will adjourn the meeting at this point and go into private session. We will communicate with you shortly regarding our intention to resume our deliberations.

The witness withdrew.

The Committee went into private session.

The Committee adjourned at 12.55 p.m.

COMMITTEE OF PUBLIC ACCOUNTS.

Dé Máirt, 3 Feabhra 1998.

Tuesday, 3 February 1998.

The Committee met at 2 p.m.

MEMBERS PRESENT:

DEPUTY J. MITCHELL IN THE CHAIR.

The Committee went into private session.

PUBLIC SESSION.

Mr. J. Purcell (An tArd Reachtaire Cuntas agus Ciste) called and examined.

Business of Committee.

Chairman: I draw the attention of the Committee to the tight schedule. Deputy Doherty and Deputy McCormack are leading today. The Department of Social, Community and Family Affairs has its own scheme and the Department’s chief medical officer will accompany the Secretary General today to highlight the salient points of the scheme and what aspects might be appropriate in terms of the Department of Defence. Twenty minutes are available for this session. I ask Deputies to understand that discussion may be curtailed as time limits arise. Questions should be as brief and to the point as possible.

Deputy Rabbitte: Will the Committee take a short break after the contribution of RACO?

Chairman: It will be round that time.

Deputy C. Lenihan: How long does the Chairman expect the session to last?

Chairman: I hope it will not be much beyond 5 p.m. We will try to keep to the schedule as closely as possible. There is a formidable amount of business to do in the next three days. This is why I must be firm with Deputies in relation to time. Every Deputy will not be in a position to contribute on every issue.

Deputy C. Lenihan: I am listed as a back up speaker but I must be in the Chamber at 2.30 p.m. However, I will return later.

Chairman: That is fine. Members have a copy of the briefing material.

Deputy C. Lenihan: What is contained in the wider documents to which the Chairman referred and which have not been circulated?

Chairman: Much reading. There is nothing of immediate pertinence. There is much information about public liability insurance, etc. It is a formidable array of literature, including Health and Safety Authority regulations regarding EU Council directives.

Deputy Ardagh: Has the Chairman spoken to the Secretary General about the time available for this session?

Chairman: The times are indicative rather than precise. However, we will try to keep to the timetable as far as possible.

Deputy C. Lenihan: Has Deputy Bell formally recused himself? Has he communicated with the Committee?

Chairman: We have already dealt with that subject. We will not deal with it any further today

Chairman: The minutes have been noted. We will move on to the resumed hearing on Vote 36 relating to the Department of Defence.

Annual Report of the Comptroller and Auditor General and Appropriation Accounts

(Resumed).

Vote 36: Department of Defence.

Chairman: The Committee will recall that on 27 November the Comptroller and Auditor General introduced paragraph 39 of his report dealing with compensation for hearing impairment. The Official Report of those proceedings are available to Members for reference purposes.

I welcome the Secretary General of the Department of Social, Community and Family Affairs, Mr. Edmond Sullivan, and I ask him to introduce his officials.

Mr. Edmond Sullivan, Secretary General, Department of Social, Community and Family Affairs, called and examined.

Mr. Sullivan: I am accompanied by Dr. Michael Chambers, medical adviser to the Department, and Mr. Brian Flynn, principal officer in charge of the occupational injury benefit area.

Chairman: I also welcome the Secretary General of the Department of Defence, Mr. David O’Callaghan, and ask him to introduce his officials to the Committee.

Mr. O’Callaghan: I am accompanied by Mr. Michael Howard, Assistant Secretary General, Mr. Pat Hogan, Financial Controller, and Mr. Paul Kelly, the Principal Officer in charge of the compensation area.

Chairman: I also welcome the representatives of the Department of Finance, Mr. Stephen O’Neill from the public expenditure division and Mr. Paddy Howard from the organisation and training section.

We will move onto to the first section of the Committee’s hearings relating to the Department of Social, Community and Family Affairs. I thank the Secretary General and the Department’s medical adviser for appearing before the Committee today to discuss the Department of Social, Community and Family Affair’s occupational deafness scheme.

Mr. Sullivan: Our involvement with occupational deafness arises from the Occupational Injury Benefit scheme which we administer. This is an income support scheme which provides weekly or lump sum payments to insured workers who are injured in the course of their employment and compensation for loss of faculty to those who contract an occupational disease. Occupational deafness is one of the prescribed diseases under the Occupational Injury Benefit scheme. It is defined in the social welfare regulations as hearing loss amounting to at least 50 decibels in each ear being due in the case of one ear to occupational noise and being the average of pure tone loss as measured by audiogram over the one, two and three kilohertz frequency.

We do not assess people ourselves. They are assessed by their own medical practitioner/specialist. On the basis of the audiograms we receive, we then assess a degree of disability associated with that hearing loss. There are prescribed rates of payment associated with the degree of disability which are then paid to people. In a nutshell, that is what the scheme involves. We receive a small number of cases a year. We only receive a handful in any one year.

Deputy Doherty: The number of such claims is rare. Does the Secretary General consider that extraordinary in light of what is happening in the context of the Department of Defence where 10,000 claims have been made?

Mr. Sullivan: Soldiers are not covered under the social welfare scheme while they are in service. It would not have a direct application there. However, it is a small number.

Deputy Doherty: It is a small number given that the country is considerably more industrialised than previously.

Mr. Sullivan: Our claims for occupational deafness have averaged four in the last three years. The total volume was 3,000 in 1997.

Chairman: The total of all disabilities?

Mr. Sullivan: No, for Disablement Benefit. Occupational deafness is a prescribed disease. We can also pay on the basis of people who have accidents at work. There were less than five claims in that regard from 15,000 claims. It is a very small proportion.

Chairman: Disablement Benefit also covers injuries other than to ears. What is the total?

Mr. Sullivan: 3,100 in 1997.

Chairman: How many deafness related claims were there in that total?

Mr. Sullivan: There were three in 1997, all of which were disallowed.

Chairman: They were all disallowed.

Deputy Doherty: That is a very interesting statistic. There are very few claims and a considerable rejection rate. Does the Department have any claimants who served in the Defence Forces at any time and qualify under the Department’s criteria?

Mr. Sullivan: No, because it would not have been a prescribed employment for the purposes of the scheme.

Deputy Doherty: The disease regulation of 1983, which is a Statutory Instrument, specified a schedule of prescribed diseases including occupational deafness.

Mr. Sullivan: Yes.

Deputy Doherty: Which occupations were prescribed?

Mr. Sullivan: There is a long list; I will give the Deputy some examples. They include any occupation involving the use of or work wholly or mainly in the immediate vicinity of pneumatic percussive tools or high speed grinding tools in the cleaning, dressing or finishing of cast metal. The general area is any work involving the use of pneumatic percussive tools.

Deputy Doherty: Although the number of claimants is small, has there been any attempt to try to distort their hearing for the purposes of qualifying for benefit? Has the Department found any fraudulence? If so, what type of method was used?

Mr. Sullivan: I am not aware of any such cases. Typically, when a person makes a claim, they send in an audiogram already carried out. We do not test people’s hearing directly. We only assess what is submitted and apply the formula in the regulations.

Deputy Doherty: Substantial hearing loss/deafness is covered under the scheme. What is defined as substantial hearing loss?

Mr. Sullivan: The regulations define it as being hearing loss amounting to at least 50 decibels in each ear.

Deputy Doherty: Regarding the comments of the Secretary General of the Department of Social, Community and Family Affairs, does the Secretary General of the Department of Defence have a similar attitude or understanding of the problem?

Mr. O’Callaghan: Our problem is much larger. We have 11,521 claims at present. The Department of Social, Community and Family Affairs has a statutory system and we have no system. We looked at ten cases which received settlements or awards in the courts. We sent them to the Department of Social, Community and Family Affairs and they would have received nothing under that Department’s scheme.

Deputy Doherty: Would they be likely to receive a settlement in the courts?

Mr. O’Callaghan: They got money in the courts. We sent ten cases to the Department of Social, Community and Family Affairs.

Chairman: The Committee received correspondence on this matter. Were the ten cases representative of all the cases before the courts?

Mr. O’Callaghan: Yes. They were representative cases.

Chairman: They were representative of cases given awards by the courts?

Mr. O’Callaghan: Yes.

Chairman: Is the position that every case would not have qualified for Disablement Benefit from the Department of Social, Community and Family Affairs?

Mr. O’Callaghan: That is correct.

Mr. Sullivan: That is also my understanding. They were under the hearing loss range at which we pay.

Chairman: Every one of them?

Mr. Sullivan: Yes.

Deputy Doherty: Could these people have pursued their case by way if civil action?

Mr. O’ Callaghan: They did but against the Department of Defence not the Department of Social, Community and Family Affairs.

Deputy Doherty: In cases rejected by the Department of Social, Community and Family Affairs, has there been any evidence of people pursuing claims in the courts?

Mr. Sullivan: We do not track them so I do not know.

Deputy McCormack: Even though the tests are not carried out directly by the Department of Social, Community and Affairs, what method is now used to determine the extent of hearing loss when assessing a claim?

Mr. Sullivan: We receive the audiogram which shows the hearing loss in each ear. We take the average hearing loss in both ears as measured by the audiogram over the 1,2 and 3 kilohertz frequency ranges. We then calculate the degree of disablement.

Deputy McCormack: Has the method of assessment changed as a result of modern technology?

Mr. Sullivan: The mechanism we use for taking the audiogram and applying a rate has been in place since 1983 when the scheme was introduced.

Deputy McCormack: The method of assessment has not changed since 1983 when occupational deafness became a prescribed disease. Why has modern technology not caught up with a new system of assessment?

Mr. Sullivan: From our point of view the assessment concerns the degree of disablement and the amount people will get. I can only presume that there have been technological developments which have been reflected in the audiogram.

Deputy McCormack: Has there been any change in the system used by the Department of Defence since 1983?

Mr. O’Callaghan: Yes, there have been developments in the methods of taking audiograms. We use the most up to date methods. On 27 November 1997 I mentioned to the committee that there is also the cortical electric response (CER) test which measures brain patterns. This is a sophisticated test which can be used from time to time if we suspect that someone is malingering.

Deputy McCormack: What test is used to evaluate hearing loss in those not exposed to extremes of noise? Is there any test for that type of person?

Mr. O’Callaghan: My understanding is that it is the same test.

Mr. McCormack: Is it possible for a person to suffer severe hearing loss despite never having been exposed to loud noise?

Mr. O’Callaghan: Yes. One can suffer hearing loss from hereditary reasons, from an ear infection, age and impact noise - acoustic trauma noise - which is the problem we have in the Defence Forces. It is interesting to note that we recently learnt that the farming community, not the military, has the largest number of sufferers of noise-induced hearing loss in North America. This is a result of using farm machinery.

Chairman: We have only 20 minutes on social welfare so we must only focus on the social welfare scheme.

Deputy McCormack: Is it possible for a person who has been exposed to extreme noise not to suffer hearing loss? This is what your findings seem to suggest.

Mr. Sullivan: I presume that is possible. I am not too sure that that is what I am saying.

Deputy McCormack: No claims have been granted.

Mr. Sullivan: That is because they did not reach the hearing loss level at which the Disablement Benefit begins. Someone with a hearing loss of less than 50 decibels would not qualify.

Chairman: How many people are involved in the occupational professions covered by the social insurance scheme?

Mr. Sullivan: We would not have any idea. We only have figures for the total insured population which is 1.5 million people. We would not be able to segment that figure.

Chairman: You have an average of four claims per year from the total insured population.

Mr. Sullivan: We have had an average of four claims per year for occupational deafness over the past three years.

Mr. McCormack: Is it anticipated that those who have been found not to have sufficient hearing loss by the Department of Social, Community and Family Affairs will take their cases to the courts as a result of the publicity in the Army cases?

Mr. Sullivan: I would not think so. That option was always there for people but I would not necessarily think so.

Chairman: Ten cases have been submitted to you by the Department of Defence. Are these representative samples? How many cases have received awards or have been settled?

Mr. O’Callaghan: Fourteen hundred.

Chairman: Are these a representative sample of those either awarded by the courts or - settled out of court? The documentation which I just received states that Case 1 was awarded £30,000; Case 2 - £4,000; Case 3 - £30,000; Case 4 - £17,000.

Mr. O’Callaghan: You will note that the cases are all zero handicap on the American system which we are trying to promote in the courts.

Chairman: Case 6 - £25,000; Case 7 - £45,000; Case 8 - £39,000; Case 9 - £16,000; Case 10 - £37,500 and a final case was settled for £21,500. Are these the cases received from the Department of Defence?

Dr. Chambers: Yes.

Chairman: Have you assessed the medical evidence in each case?

Dr. Chambers: I have assessed the hearing loss in these cases. None of the sample cases met the minimum hearing loss criteria which the Department requires. That was one reason why they would have failed. The other reason is that none of these people were employed in a prescribed occupation. Military personnel are not covered.

Chairman: Purely on hearing loss criteria -

Dr. Chambers: They would not qualify.

Chairman: None of them?

Dr. Chambers: Not one.

Deputy Foley: In view of the number of cases coming before the medical adviser, has he sought independent advice in relation to hearing loss?

Dr. Chambers: No, I have not had to seek any independent advice because I am satisfied with the information we have.

Deputy Rabbitte: Did Mr. Sullivan refer to a deficit of 50 decibels in each ear? Why each ear? Could someone not have a serious disablement and suffer hearing loss of 75 decibels in one ear?

Dr. Chamber: Basically, our scheme relates to industrial deafness. If one is exposed over a period of time to a noisy environment, one’s hearing will be affected in both ears. Hearing loss in one ear can come about basically as a result of perhaps a direct head injury, a direct injury to the ear or a sudden loud explosion to either side of one. However, in the average industrial environment, where, for example, one is working under excessive noise levels, both of one’s ears will be affected.

Deputy Rabbitte: Is there no set of circumstance where a claimant who is seriously deaf in one ear would qualify for disablement?

Dr. Chambers: He would qualify for disablement as an occupational accident if the deafness was due to-----

Deputy Rabbitte: Given the criteria of deafness, to be seriously impaired in one ear would not qualify in any circumstances under your scheme. Is that correct?

Dr. Chambers: Not under the prescribed diseases. The prescribed diseases were designed to------

Deputy Rabbitte: Why should working in an industrial environment lead to this equality of deafness, for the want of a better term? We already have evidence to the effect that, for example, in a non industrial environment it is prevalent that the deafness is in one ear only. Why would that happen on a firing range and not happen in an industrial environment?

Dr. Chambers: I have no experience of weapons as such, but if one is firing a rifle the ear nearest the muzzle is the one likely to be most affected. The sound emanates from the muzzle of the gun. If one is right handed one is more likely to get most of the noise in one’s left ear. While both ears may well be affected it may be expected that there will be increased hearing loss in the left ear of a right handed person.

Chairman: Your evidence is to the effect that in industrial cases one ear would not be more damaged than another. Is that correct?

Dr. Chambers: There may be slight difference between ears. However, often in industrial deafness cases the audiogram will show that the lines for the left and right ears tend to match and mirror each other quite closely.

Deputy Ardagh: Is the acoustical trauma and noise which resulted for most of the soldiers the same type of noise which occurs in occupational injuries? How serious is the loss of 50 decibels? For example, could one hear what I am saying? Have many people suffered loss at 40 decibels? Is tinnitus more serious than a 50 decibel loss?

Dr. Chambers: A 50 decibel loss on a scale from mild to severe would be seen as being in the area between mild and moderate. It would tend towards the moderate level of hearing loss. A 50 decibels hearing loss over the one, two and three kilohertz range, as in our scheme, would probably not affect your ability to hear me, especially on a one to one basis. If everybody in the room was talking and we were in a group you might miss out on what was being said here or there and you might ask about what was said. However, I do not believe that 50 decibels on a one to one basis would impair normal conversation between two people.

Deputy Ardagh: Is tinnitus as serious as a loss of 50 decibels?

Dr. Chambers: No. Tinnitus is a noise of some kind which people hear and are aware of. It arises from within themselves rather than from the outside environment. It can be described as a buzzing or ringing noise or like the sound of the tide coming in and out or like putting a seashell to one’s ear. If does not normally impair speech discrimination unless it is very serious. It is a nuisance and a problem for the sufferer. For example, it can keep the sufferer awake at night because it is continuous.

While tinnitus may manifest itself in the presence of noise induced hearing loss it can also arise in cases where audiograms are normal - where there are no hearing losses and no acoustic trauma. Nobody quite understands the mechanism by which tinnitus is produced. Its treatment is difficult and generally not 100 per cent successful.

Deputy Durkan: How many sufferers of occupational deafness - recipients of occupational injury arising from deafness - are registered with the Department of Social, Community and Family Affairs?

Mr. Sullivan: I do not have the figure for the numbers on our books at present but I suspect it would be very small.

Deputy Durkan: Can you provide clarification on what the audiogram constitutes by way of examination?

Dr. Chambers: An audiogram is basically a graph which is drawn against the person’s ability to hear at certain frequencies. It is measured by an audiometer.

Deputy Durkan: Is it set in a standard setting, such as this room?

Dr. Chambers: One is usually in a sound proof booth. That is the ideal.

Deputy Durkan: How long does it take?

Dr. Chambers: That varies. It can be done fairly quickly. On average, and assuming the operator is satisfied with the performance of the customer, it takes approximately 20 to 30 minutes.

Deputy Durkan: Do you carry out the test?

Dr. Chambers: No.

Deputy Durkan: Are they sent to you by an outside consultancy?

Dr. Chambers: If necessary, we could ask a ENT specialist to undertake some tests for us but basically we do not conduct them.

Chairman: Would a person with a 50 decibel loss require a hearing aid?

Dr. Chambers: I believe not in the ordinary course of events.

Chairman: Is there an appeals procedure in the Department of Social, Community and Family Affairs?

Mr. Sullivan: Yes.

Chairman: There is an appeals mechanism if a person is not satisfied with a decision on a claim. Is that correct?

Mr. Sullivan: Yes.

Chairman: Does it go to a different medical assessor?

Dr. Chambers: In this situation it would go directly to the Social Welfare Appeals Office.

Chairman: Turning to the Secretary General of the Department of Defence, have you adduced in evidence the Department of Social, Community and Family Affairs social insurance deafness scheme in any of your court cases?

Mr. O’Callaghan: Yes.

Chairman: Have the courts taken them into account?

Mr. O’Callaghan: No.

Deputy Rabbitte: Is it an unfair conclusion to say that the reference of the ten representative cases that would be rejected under the Department of Social, Community and Family Affairs criteria is not all that meaningful since perhaps seven of the ten could have been seriously deaf in one ear but deaf by less than 50 decibels in the other ear?

Chairman: The secretary will appear before the Committee tomorrow. Regarding the question raised by Deputy Rabbitte, perhaps we should ask him for the measures for both ears.

The witnesses withdrew.

Deputy Ardagh: I wanted to ask the Secretary of the Department of Defence whether the current claims relate to tinnitus and hearing loss, tinnitus or hearing loss or a combination of both?

Chairman: There will be an opportunity to ask the Secretary General questions at the end of the session. For the moment we must adhere to the modules on the Department of Social, Community and Family Affairs, the NRB and the Health and Safety Authority. We must be very focused in order to get things done.

Deputy Durkan: Is it possible to ask any questions of the Secretary of the Department of Defence at this stage?

Chairman: Yes, if they are directly related to the evidence from the various modules.

Dr. Arthur O’Reilly, National Rehabilitation Board, called and examined.

Chairman: Dr. Arthur O’Reilly is the Chief Executive Officer of the National Rehabilitation Board and Dr. Cecily O’Donovan is its senior medical officer. They are very welcome.

The Committee is considering the issue of army deafness claims and would like to question Doctors O’Reilly and O’Donovan on the scheme in operation by the NRB. Do you wish to make an opening statement?

Dr. O’Reilly: No, I can tell the Committee something about the NRB if the Chairman so wishes.

Chairman: Does the NRB provide services for the health boards in respect of deafness claims?

Dr. O’Reilly: Yes. One of the NRB’s functions is to provide a hearing service. The hearing service is provided to children from the time they are born until the time they leave full-time education. The service is also provided to adults who hold a medical card. We do not provide a hearing service to anyone outside of those groups. The NRB provides this service nationally. All of the people who seek hearing tests are referred to us by a GP, an assistant medical officer in a health board or some other medical source. People cannot simply walk in off the streets and request a hearing test.

Chairman: So the service is available to school goers and medical card holders?

Dr. O’Donovan: It is also available to pre-school children.

Chairman: The service is available to pre-school and school children and adult medical card holders. Does the NRB operate a similar system to the Department of Social Welfare?

Dr. O’Donovan: No, the NRB offers quite a different type of service. We see people referred to us from a medical source for assessment of hearing. We test those people’s hearing and provide hearing aids for those who appear in need of some assistance.

Chairman: At what level would you deem people to be in need of hearing assistance or hearing aids?

Dr. O’Donovan: In general, if a person has a hearing impairment in both ears we would consider they could benefit from hearing aids and, in such cases, we would arrange appropriate fitting. A hearing impairment in one ear only, would not, as a general rule, require a hearing aid although in exceptional circumstances there could be some indication that a hearing aid would be required.

Deputy Doherty: What are the most common causes of hearing damage in the cases referred to the NRB in the context of people’s occupation?

Dr. O’Donovan: The most common cause in the adult service would be age-related. Approximately 75 per cent of the adults we see would be over 60 years of age and would suffer from an age-related hearing impairment.

Deputy Doherty: In that regard, could one suggest a correlation between age and decibel loss and that a natural diminishment in hearing occurs as one gets older? The medical officer from the Department of Social, Community and Family Affairs outlined the decibel level losses with which the Department deals. What is the relationship between the hearing levels of average persons of a particular age and decibel levels? I think 50 decibels is the minimum level of impairment. What decibel loss would a person of 35, 45 or 55 years of age be likely to have naturally?

Dr. O’Donovan: Between the ages of 50 and 60 years, approximately 4 per cent of the population would have a hearing impairment of approximately 50 decibels. It would be expected that the majority of the population would not have such significant hearing impairment. After the age of 60 years a significantly higher percentage of the population would have similar hearing impairment.

Deputy Doherty: Do you have any experience of persons being referred to you from medical sources who have suffered hearing loss as a result of their membership of gun clubs, rifle ranges and so on?

Dr. O’Donovan: We would not inquire into that very often. If a person had reached an age where hearing impairment was a common occurrence, we would not ask them whether they were members of a gun club so we cannot really state whether their hearing losses related to such membership.

Deputy McCormack: How long has the NRB been carrying out hearing tests?

Dr. O’Donovan: The NRB hearing service has been in existence since 1967.

Deputy McCormack: Has it, at any stage during that period, updated its methods of assessing hearing loss?

Dr. O’Donovan: I do not understand the Deputy’s question.

Deputy McCormack: Is the NRB still employing the same method of assessment as it did in 1967 or has it, with the development of modern technology, advanced to different methods of assessing hearing loss?

Dr. O’Donovan: The methods which were in use in the 1960s are still in use, although additional methods are also used.

Deputy McCormack: When was the most recent occasion on which new technology, used by the NRB, came on stream for assessing hearing loss?

Dr. O’Donovan: The most recent technology we would use would relate to the fitting of hearing aids. Testing would be carried out with hearing aids in place. That would have come on stream five or six years ago.

Deputy McCormack: Does the NRB trace the history of the person being tested to elicit the likely cause of hearing impairment?

Dr. O’Donovan: We frequently ask if there is a history of infections of the ears or a history of medical treatment or surgery to the ears.

Deputy McCormack: Do you inquire into the person’s level of exposure to noise?

Dr. O’Donovan: We would not generally inquire into leisure activity.

Deputy Foley: Dr. O’Donovan stated that more than 75 per cent of the people referred to the NRB are over 60 years of age. What age group would the other 25 per cent be?

Dr. O’Donovan: They would be all ages from 18 to 65 years.

Deputy Foley: Would the NRB be concerned if the 18 year olds were attending discos? Would that be taken into account?

Dr. O’Donovan: Yes. One would take that into account if a young person complained of a recent deterioration in hearing. One might then inquire as to whether the person had been exposed to excessive noise at discos.

Deputy Foley: Has the NRB drawn any conclusions in regard to discos?

Dr. O’Donovan: From what I have read in the literature, I believe that teenagers’ leisure activity can lead to some deterioration of hearing in the teenage years.

Deputy Durkan: What percentage of the general public is usually affected by hearing loss, notwithstanding people’s age?

Dr. O’Donovan: The best study on this matter of which I am aware was carried out in Great Britain by the Institute of Hearing Research. It was found that 17 per cent of the entire population was affected by hearing impairment.

Deputy Durkan: Is it possible to obtain a breakdown of how the percentage changes when one moves down the age groups?

Dr. O’Donovan: The Deputy would have to consult the Institute of Hearing Research in Britain for such figures but I believe an age breakdown is provided.

Deputy Durkan: Has it been found that high and low frequency deafness affect certain age groups or do they apply randomly across the board?

Dr. O’Donovan: One can get a high frequency hearing impairment at any age from different causes; for example, a child could inherit it or it could be age related in an older person. Low frequency hearing impairment can occur in childhood with conditions such as glue ear or middle ear disorder. It can also occur in adulthood due to other pathologies.

Deputy Durkan: Therefore, a ten year old child could possibly suffer from high tone or low tone deafness.

Dr. O’Donovan: Possibly.

Deputy Durkan: Which is more prevalent in that age group?

Dr. O’Donovan: I could not say.

Deputy Dennehy: What level of hearing loss is required before a hearing aid is prescribed?

Dr. O’Donovan: Generally, a hearing loss of at least 30 decibel would be required before a hearing aid would be required.

Deputy Dennehy: It is that low?

Dr. O’Donovan: Yes.

Deputy Dennehy: There are suggestions that the test results can be faked or manipulated. Would a professional tester be aware at all times of any attempt to manipulate the results?

Dr. O’Donovan: When a person is having a hearing test for their own benefit, that is, to get a proper hearing aid fitted or for diagnosis, it can be assumed the person has the strongest motivation to respond to the best of his or her ability. If there is any question of a legal procedure the tester must have a high level of awareness and must check the hearing test a few times.

Deputy Dennehy: Would a tester be able to eliminate any faking of the results over a series of tests?

Dr. O’Donovan: A person can be aware the subject is not reliable in testing but it can be difficult to determine the true threshold.

Deputy Dennehy: I have another question in regard to the Health and Safety Authority.

Deputy Rabbitte: Given that hearing aids might be fitted for hearing loss above 30 decibels and that only 4 per cent of the population aged between 50 and 60 years have a hearing deficit of over 50 decibels, does that mean hearing loss of 50 decibels is regarded as a significant impairment?

Dr. O’Donovan: Yes.

Deputy Rabbitte: In the witness’s experience, do those from an industrial environment complaining of hearing loss tend to be roughly equally damaged in both ears?

Dr. O’Donovan: That would often be the case where the noise was due to a factory.

Deputy Rabbitte: Has there been a run on hearing aids over the past three to five years for members of the Defence Forces?

Dr. O’Donovan: We do not deal with the Defence Forces.

Deputy Rabbitte: They do not consult the NRB at all?

Dr. O’Donovan: No.

Deputy Rabbitte: Are they not eligible to?

Dr. O’Donovan: They do not have medical cards.

Deputy Rabbitte: So they would be precluded from seeking advice and assistance from the NRB.

Dr. O’Donovan: Yes, we would not see them at all.

Deputy Ardagh: To what decibel level of hearing loss do the categories of hearing loss of mild, moderate, severe and profound relate?

Dr. O’Donovan: They are based on average decibel levels - from 25 to 40 decibel is considered mild, from 40 to 69 decibel is considered moderate, from 70 to 95 decibel is considered severe and 96 decibel and over is considered profound.

Chairman: Are those decibel levels?

Dr. O’Donovan: Yes.

Deputy Ardagh: What level of hearing loss would prevent someone from carrying out a standard factory job, in terms of being able to hear orders and instructions?

Dr. O’Donovan: Some people who are born deaf are well able to do factory jobs. We provide a service which helps people with congenital hearing impairment to find work, many of whom are employed in factories.

Deputy Ardagh: Would a hearing loss of 25 decibel prevent a person from working effectively in certain situations? What would be the effect of a 40 decibel loss? At what stage would somebody be unable to do their job? According to the social welfare code the lower level for the payment of disablement benefit is 50 decibels. That figure was set in 1983. Given the advances in modern medicine, is that figure still relevant and fair in terms of modern industrial relations?

Dr. O’Donovan: I could not say because I do not do any industrial work.

Deputy Ardagh: Is there any medical or surgical treatment for tinnitus?

Dr. O’Donovan: I have listed some of the available treatments. The recommended treatments are counselling, tinnitus retraining therapy, tinnitus maskers and drugs.

Deputy Ardagh: Can it be eliminated?

Dr. O’Donovan: A number of studies were carried out in Britain on treatments which had significant degrees of success.

Chairman: Although we are running over time, I will allow Deputy Gildea ask one question.

Deputy Gildea: Is tinnitus a nuisance or more serious than that?

Dr. O’Donovan: It depends on the severity of the tinnitus: some may only be a nuisance but other levels could be a more serious problem.

Chairman: Mild hearing loss is up to 40 decibels. Does that figure refer to hearing loss in one or both ears?

Dr. O’Donovan: In both ears.

Chairman: Would a person with such a loss in both ears always require a hearing aid or would the loss need to be above that level?

Dr. O’Donovan: It depends on the individual - some people may and others may not.

Chairman: Disability allowance is different to disablement benefit in that it is only payable to those who are not socially insured. Does the NRB have any say in deciding who qualifies for disability allowance?

Dr. O’Donovan: No. That is decided by the Department of Social, Community and Family Affairs.

Chairman: Do the same criteria for disablement benefit apply to disability allowance?

Dr. O’Donovan: I have no idea.

Chairman: We must check that. Thank you Dr. O’Reilly and Dr. O’Donovan. We will now turn to the Health and Safety Authority.

The witnesses withdrew.

Mr. Tom Walsh, Director General, Health and Safety Authority, called and examined.

Chairman: In attendance is Mr. Tom Walsh, the Director General of the Health and Safety Authority, Dr. Dan Murphy, director of occupational medical services, Mr. Michael Henry, chief inspector, and Mr. Frank Kellaghan, inspector. You have all been asked here today to describe the chronology of noise regulations, both in domestic and EU law, and what the current situation is. Could Mr. Walsh make a brief statement to start with?

Mr. Walsh: Prior to 1989, which we will take as a key date as it was when the Health and Safety Authority was established, the health and safety laws applied solely to workers in the industrial sphere - in building, mines and quarries - which was about one in four Irish workers. The laws in operation at the time, the noise regulations of 1975, applied to those categories of workers. In 1989 the Safety, Health and Welfare at Work Act became law and applied general duties of care on all employers relating to all workers in the economy. The Act introduced a new preventative system of health and safety based on those general duties. It was fleshed out by regulations, many of which were EU derived.

In 1989 the Health and Safety Authority was also established with a remit to promote and encourage health and safety as well as enforcing the laws. Under the 1989 Act, we introduced new regulations in 1990 on noise, thus implementing an EU directive which had become a requirement across the European Union. The authority was faced at the time with creating awareness across all employments of the new concepts in the legislation, especially among those coming for the first time under criminal laws on health and safety. We received a positive reaction in farming, education, health care and in the public sector generally. I believe the timing was right. We opened up lines of contact with these people, including the Defence Forces. Our approach generally resulted in employers identifying the risks in their employments, introducing necessary preventative measures and, very importantly, developing internal expertise by sending people on appropriate training courses. They did this to deliver on their responsibilities as employers, bearing in mind the primary responsibility is on the employer to identify risks at work and to put preventative measures in place.

I summarised the 1990 noise regulations in a submission made to the Chairman. It dealt with cases where workers were exposed to decibel levels above 85 dBA and where the employer was required to measure the noise levels, provide ear protectors and training when in use, inform workers of the risks and make hearing checks available to them. These requirements also applied in the case of impact hearing at a level of 140 decibels. In addition, where exposure exceeded 90 decibels, the employer was required to examine more closely the cause of the problem, to try to reduce the noise at source, if possible, to mark areas restricting access where noise exceeded the 90 decibels and to ensure ear protectors were worn. There was also a requirement on workers to wear the ear protection provided. These regulations have been in place since 1990 and have been applied to Irish employments in the course of inspections carried out by the inspectors of the authority. They have been applied across all employments, but priority is given to areas coming under our remit which are most at risk.

Chairman: Can you describe what the situation was before the noise regulations of 1990 and before the creation of Health and Safety Authority?

Mr. Walsh: I shall ask Mr. Frank Kellaghan to respond to that.

Mr. Kellaghan: At that time we operated under the 1975 noise regulations, a set of regulations introduced under the 1955 Factories Act. They applied to all situations coming under the Act, which would typically be factories and other selected places which were in the industrial area. Those regulations made a general requirement of employers to take precautions to prevent harm to their employees from noise exposure. They gave a series of options to employers which effectively meant the provision of hearing protection was of sufficient compliance to deal with those regulations. For noise levels in excess of 90 decibels an employer was required by the regulations to provide hearing protection and to also mark off areas where the noise levels existed.

Chairman: Were standards of hearing protection defined? What form did hearing protection take?

Mr. Kellaghan: They were not defined under the regulations. It was simply required that hearing protection be provided.

Chairman: It could, therefore, have taken the form of cotton wool or earplugs, as in the case of the Defence Forces?

Mr. Kellaghan: No, I am sure the word “effective” would have been applied in some instance in those regulations.

Chairman: However, there was no definition of “effective”.

Mr. Kellaghan: No specific definition was given.

Deputy Doherty: Do the EU directive on noise and the regulations which gave effect to it apply to the Army?

Mr. Walsh: Yes, they do.

Deputy Doherty: Would the authority have a function of inspecting or examining how well these regulations were applied to Army personnel on rifle ranges, etc.?

Mr. Walsh: While we would have such a function, based on the level of dialogue with the Army and the measures it has taken to give effect to the 1990 regulations, we are satisfied that this is not a function we will have to discharge regularly. A range of Defence Forces regulations has also been introduced to deal with the situations in which firing is encountered. With the work we did with the Army in the mid-1990s, we are satisfied it has a regime in place to protect its personnel.

Under the existing safety legislation, a limited exemption is given arising from a European directive in cases where members of the Defence Forces are on active service or are involved in training closely related to active service. This rarely arises. Both the Army’s interpretation and ours is that the 1990 regulations apply to normal training and protective measures are in place on firing ranges and elsewhere, including the required level of hearing protection.

Deputy Doherty: Inspectors of the authority visit factories and examine and assess whether the regulations are being complied with. Is that done physically with the Army, or has it been done at all?

Mr. Henry: Before 1989, we traditionally monitored the exposure to noise on non-Army personnel because they came within our ambit. Also before 1989, we carried out some monitoring at the request of the Army.

Deputy Doherty: Do inspectors visit discos?

Mr. Walsh: It does not come within our remit because it is mainly a public entertainment activity. Our work is generally prioritised on the basis of serious and fatal accidents to workers in the building industry, in factories, in the fishing industry, etc.

Deputy Doherty: I thought the regulations made under the 1989 Act applied to all work situations where people are employed. I am thinking of bar staff and others employed in discos. The presumption is that what would be bad for them would also be bad for the patrons. Do inspectors not visit these places in the context of the welfare, health and safety of the employees?

Dr. Murphy: I have not visited bars. My work with the authority is ensuring that groups of workers who come under the regulations have appropriate hearing checks made available.

Mr. Walsh: We are talking about a general environmental issue affecting the public at large in places of entertainment. Given the pressures on us in terms of the totality of our function, we defer where there are other services in place. I believe that, under the environmental health services, there has been noticeable legislation in this area.

Deputy Doherty: What decibel level would be likely to be encountered in the context of the Army?

What decibel level would be associated with the different types of weaponry being used?

Mr. Henry: We are talking about impact noise. My information would be that 140 decibels would be the range. It is quite high.

Deputy Doherty: The National Rehabilitation Board described 90 as profound.

Chairman: We are picking up two different things. That is loss. This is noise.

Deputy Doherty: Can the loss be measured?

Dr. Murphy: Obviously, 140 decibels have an impact - it is also specified as 200 pascals - and is taken as the equivalent. The measurement of impact noise for physicists and acousticians involved in this work is very difficult, but it would approximately equate. Somebody exposed to 140 decibels of impact noise on a regular basis is experiencing probably the equivalent of 90 decibels of continuous noise. Tables tell one how this affects a given number in a population. That is why the limit in these regulations was thought by some to be surprisingly low at 85 decibels, but that is where the regulations cut in.

Deputy McCormack: The Director General of the Health and Safety Authority mentioned the 1989 Act, What safety measures were enforced before that Act?

Mr. Walsh: As my colleague said, the Factories Act applied before 1989, but only to industrial and building workers.

Deputy McCormack: After the 1989 Act, was the Health and Safety Authority obliged to contact the Department of Defence to inform them of the regulations that would apply?

Mr. Walsh: There was an obligation on us in terms of promotion. We got in touch with all the new employment sectors coming under legislation for the first time. In several cases we set up subsidiary advisory committees.

Deputy McCormack: I am not interested in those. I am interested in the Army. What instructions did the Authority give the Army after the 1989 Act?

Mr. Walsh: We brought the provisions of the Act and other regulations that would apply under it to the Army’s attention.

Deputy McCormack: Was the Authority then obliged to see if those regulations were enforced?

Mr. Walsh: We were, indirectly, as apart from actual inspection. We called an advisory committee on the Defence Forces together and looked at the problems in the Defence Forces and where they needed to move forward generally.

Deputy McCormack: Did the Authority, at any time since 1989, find that the regulations were not being enforced?

Mr. Henry: No. Generally speaking, we got full co-operation from the Defence Forces. The issue of hearing loss was addressed in the advisory committee report and was implemented fully.

Deputy McCormack: What did the Authority tell the Defence Forces after the 1989 Act? What regulations came into force then?

Mr. Henry: The general provisions in relation to a safe place of work--

Chairman: Under the 1990 noise regulations drafted under the 1989 Act?

Mr. Henry: Yes.

Chairman: Those applied to the military and civilian sectors?

Deputy McCormack: What did the Army have to do after 1989 that it had not done previously to safeguard people’s hearing?

Mr. Henry: There was an obligation to provide hearing protection once the level of noise went above 90 decibels.

Deputy McCormack: As far as the Authority was concerned, this was adhered to?

Mr. Henry: That is right.

Deputy Ardagh: Is there a correlation between the standard of care by the management of the Army and management of industrial enterprises throughout the country? When inspectors made their rounds, was there an instrument in situ to measure noise levels? Was the number of factories which had this facility equivalent to the Army’s number of instruments? Was there a proliferation of instruments to measure noise levels in factories throughout the country?

Mr. Henry: Having measured noise in the late 1970s and 1980s, the instruments were available at that stage. However, regulations did not apply to the Army then.

Deputy Ardagh: In the factories visited, was the Authority informed that people there were operating instruments to ascertain the level of noise?

Mr. Henry: The usual situation would be that a factory would have a survey done of a particular process. Then the noise associated with a particular machine would be known, and action could be taken. A choice of ear defenders would then be made.

Deputy Ardagh: Was industry assiduous in ensuring it went by the letter of the law in this matter?

Mr. Henry: Some were and some were not.

Deputy Durkan: Would the Authority have given criteria for particular types of industry? Somebody mentioned discos. When would the Authority have contacted such organisations in relation to noise levels?

Mr. Henry: We identified noisy industries. We took action in the mid 1970s in this area, visiting most of them.

Deputy Foley: Mr. Walsh’s opening statement referred to opening up communication with the Defence Forces. Have these discussions been ongoing and has the Authority been able to assist them with the number of claims against them?

Mr. Walsh: We are not involved in any way with the civil liability side. Across all employments we are very active with our contacts. We operate a helpline that takes 50 to 60 calls a day, and we maintain contact with our client employers and organisations.

Deputy Dennehy: There is an obvious source of potential damage in the Defence Forces, and there is no general exemption for them under the 1989 Act. In the context of Mr. Walsh’s earlier reference to an arrangement with the Defence Forces, has he reconsidered the Authority’s position given the claims? Is he satisfied that a proper régime is in place in the Defence Forces?

Mr. Walsh: Our involvement with the Defence Forces is relatively new. In 1994 we produced a report on problems in the Defence Forces ranging from manual handling to other matters. That report stressed that work on noise must be continued so that workable solutions are developed and implemented urgently. We are satisfied they are taking the right steps. They have developed internal expertise, provided hearing protective equipment and have the basic framework in place in order to avoid such a problem in future.

Deputy Rabbitte: From experience of the 1970s and 1980s, and acknowledging that the regulations did not apply to military personnel, what is the authority’s opinion of the era when cotton wool was used, whether it was ordinary or waxed cotton wool?

Dr. Murphy: It is not an adequate form of protection. In noisy industry this would have been realised as early as the 1960s when I first entered the industrial sector.

Deputy Rabbitte: Thank you.

Chairman: To summarise, the Health and Safety Authority was established in 1990.

Mr. Walsh: 1989.

Chairman: It was 1989. In the same year an Act was introduced to implement EU rules regarding noise regulations.

Mr. Walsh: It was 1989, the same year as the safety, health and welfare at work legislation. The new noise regulations were introduced in 1990.

Chairman: Since 1990 the military has come under the noise regulations and the Health and Safety Authority has been vetting the military in this respect. Since that time has the military been found deficient in meeting these regulations?

Mr. Walsh: I do not think we have had occasion to take any enforcement action in relation to the military in the context of this or related issues.

Chairman: The hearing protection provided was not defined prior to the 1989 Act and previous regulations, including the 1975 regulations. Is that correct?

Mr. Kellaghan: It was not defined implicitly, but it was defined in the sense that it was required to be effective.

Chairman: What was defined as good practice? We have a catalogue from the Department of Defence regarding cotton wool, ear plugs, etc. What sort of ear protection would have typically been provided in industry?

Mr. Kellaghan: My experience in this area dates from approximately 1980. The protection would have been good quality ear muffs or ear plugs which would have been manufactured to reduce noise by certain levels which would have been indicated in the literature accompanying the plugs and muffs. In theory, therefore, if worn correctly and if properly maintained they would have resulted in a reduction of between 20 and 30 decibels.

Chairman: Were these part of the personal issue to each employee?

Mr. Kellaghan: This would not have been specifically contained in the regulations but would have constituted good practice.

Chairman: It was not a requirement but was good practice. It was said that even now there is a military exception in the case of training or manoeuvres. Can that be explained?

Mr. Walsh: There is an EU directive which is similar to the 1989 Act and which allows for exceptions in respect of defence activities. This was included in the 1993 regulations. The provision says that the safety regulations apply to the Defence Forces except when they are on active service or engaged in actions at sea, operations to aid the civil power or training directly associated with any of these activities.

Chairman: Therefore training in connection with these situations is an accepted exception. This seems very wide.

Mr. Walsh: Yes, but there is an agreed interpretation on the part of the Defence Forces that regular training, including the annual stint on the firing range, comes under the 1990 regulations for noise purposes. I imagine that the extent of training relative to active service is very limited.

Chairman: Would those on tank training manoeuvres constitute an exception?

Mr. Walsh: It is part of regular training and would not be excepted.

Chairman: It would be covered by the noise regulations.

Mr. Walsh: That is correct, as it is part of normal training and practice.

Chairman: Would the Secretary of the Department of Defence like to comment on this exception?

Mr. O’Callaghan: It is an exception which we do not use. The only exception to wearing ear plugs in the Defence Forces is in operational duties overseas, such as in South Lebanon.

Chairman: Service in the Lebanon, therefore, would be -----

Mr. O’Callaghan: Also on Border duties.

Chairman: In Lebanon, on Border duty and previously in The Congo, the noise regulations would not apply.

Mr. O’Callaghan: That is correct. Ear plugs are not worn in operational situations, on prison escorts, on border duties and overseas. However, it is very rare that there is gunfire on these occasions. We do not avail of any loophole in the regulations which might ----

Chairman: It would be helpful to the committee if we had a note on the circumstances in which the noise regulations are not applied or situations which they do not cover.

Mr. Walsh: This is also a legal provision, but my understanding is that the spirit of the regulations is applied by the Defence Forces even where there is a possibility of this exemption applying.

Chairman: The question arises regarding the practicality of wearing ear protection in given circumstances.

Mr. O’Callaghan: It is not practical in operational situations. The Defence Forces contend that they got their act together on ear protection since 1987 or before then.

Chairman: We will develop that matter when the Chief of Staff comes before us. I thank the witnesses for coming before us. We appreciate their time and co-operation.

The witnesses withdrew.

Mr. Edward Coffey, Army Pensions Board, called and examined.

Chairman: We now turn to the Army Pensions Board. The Chairman, Mr. Edward Coffey, and a principal officer from the Department of Defence, Mr. Robbie Lyons are coming before the committee. The purpose is to examine the scope of the Army Pensions Board in providing assistance to those with disabilities arising from military service. It is my intention to briefly adjourn at the end of this session.

What is Mr. Lyons’s role in relation to the Army Pensions Board?

Mr. Coffey: I wish to make an opening statement. I was appointed Chairman of the Army Pensions Board in September 1997. Our first meeting took place on 3 October. Our last meeting took place on 12 December. In that time we had seven meetings. As the committee will appreciate, I am new to the job. Because of this I brought along a principal officer from the Department, Mr. Robbie Lyons, who is stationed in Galway. I am not au fait with every conceivable thing that happened before 3 October 1997.

Chairman: We asked the witnesses to come before us in order to find out the extent to which the Army Pensions Board, in awarding army pensions, can take into account disabilities, handicaps or injuries arising from service in the Army, by way of supplement to a normal service pension.

Mr. Lyons: Under the Army Pensions Acts, the earliest of which dates from 1923 and the most recent from 1980, any former member of the Permanent Defence Force may, following discharge, apply for a disability pension in respect of various conditions which he would consider attributable to his military service. The Acts are technical and I would not attempt to give details of the full extent of what they cover.

In very broad terms there are three categories. First, a wound or injury attributable to military service which happened during the course of and arising out of military service whether at home or abroad. Second, disablement due to disease attributable to overseas service with the United Nations abroad. Third, disablement due to disease aggravated by overseas service. These categories covers a large range of conditions.

The application procedure is that an individual completes an application form and sends it to the Pensions Section of the Department of Defence in Galway where it is subjected to some preliminary checks to ensure it complies with various statutory requirements such as time limits. The application is then referred to the military authorities who carry out some preliminary checks to establish if there is any record of any claimed injury and if there are any witnesses or witness statements relating to the incident. The papers are then referred to the Army Pensions Board who conduct their own examination of the records including a medical examination of the individual. The board consists of a chairman, a military doctor and a civilian doctor who are all appointed by the Minister for Defence. The Army Pensions Board then comes to its findings as to the attributability of the claimed condition to military service as required by the Army Pensions Acts and it also assesses a percentage degree of disablement. The papers with the findings of the Board are then referred back to the Department. A disability pension or, in appropriate cases, a lump sum payment is awarded to the individual on foot of those findings.

Chairman: Is that in addition to any normal service pension?

Mr. Lyons: No, it is not in addition to a normal service pension. There is an abatement of the service pension when an individual who is in receipt of a service pension qualifies for a disability pension. For example, if an individual is in receipt of a service pension of £7,000 per year, then applies for a disability pension and is found to be entitled to £4,000 per year, the individual’s service pension is reduced by half of the lesser of the two pensions. In this example, the disability pension is £4,000, so £2,000 is deducted from the service pension reducing it to £5,000 and the disability pension is £4,000. The individual now has a gross income of £9,000 rather than £7,000. It is also important to note that the disability pension is not liable for income tax.

Chairman: Are normal service pensions liable to income tax?

Mr. Lyons: Yes.

Deputy Doherty: Is deafness resulting from the experiences that the Army now are claiming covered in the Pensions Acts?

Mr. Lyons: Deafness is not excluded.

Deputy Doherty: When you say it is not excluded as against saying it is included do I take it that it is included in one of the first categories of wound or injury?

Mr. Lyons: Yes. Hearing loss due to exposure to gunfire is generally regarded as coming within the definition of a wound in the Army Pensions Acts.

Deputy Doherty: Do you have any statistics for the numbers of person who have been granted pensions or the gratuity resultant from an injury causing deafness?

Mr. Lyons: In 1997 a total of 267 applications were made for disability pensions, of which 103 related to deafness. In 1996 a total of 107 applications were made and 53 related to deafness. In 1995 there were 66 applications and 30 of those related to deafness.

Deputy Doherty: In relation to the level of deafness what was the decibel loss in random sample cases in 1995, 1996 and 1997?

Chairman: How many claims for deafness were granted a disability pension or lump sum and what was the criteria used?

Mr. Lyons: At present there is a backlog of applications before the Army Pensions Board for a variety of reasons. Of the 103 applications made in 1997 none has yet been decided.

Chairman: What about 1996?

Mr. Lyons: In 1996 the position is the same. Of the 53 applications relating to deafness none have been decided upon. In 1995, 30 cases related to deafness and 21 of those have been finalised. I do not have the precise details of hearing loss in those individual cases but it would vary considerably. The practice in regard to hearing loss cases is to refer them to an outside consultant for specialist assessment. It is an area of expertise and the doctors on the Army Pensions Board are not specifically qualified in that area.

Deputy Doherty: Do you find it unusual there is a large number of people claiming to be affected and damaged and there are not more claims for compensation under the Pensions Acts?

Mr. Lyons: For deafness?

Deputy Doherty: Yes.

Mr. Lyons: There has been a trickle of cases in relation to deafness for some years under the Army Pensions Acts but there has not been an avalanche of applications in the same way as there has been of civil actions taken against the Minister for Defence in recent times. That is probably explained by a number of considerations. Serving members of the Defence Forces may not apply for a disability pension under the Army Pensions Acts.

Deputy Doherty: If it is a civil action can an individual be compensated and remain in the Defence Forces?

Mr. Lyons: A serving member of the Defence Forces is not precluded from taking a civil action against the Department. We have had many cases where serving soldiers received compensation and continued to serve.

Chairman: Please continue your evidence as to why individuals would bypass the Army Pensions Board.

Mr. Lyons: Another reason is an application for a disability pension regarding deafness must be made within one year of the individual leaving the Defence Forces. Many civil actions taken against the Department are from former members of the Defence Forces who left a long time ago.

Chairman: What is the maximum pension or lump sum that can be awarded?

Mr. Lyons: The maximum pension is one related to 100 per cent disability. For an NCO or private the maximum pension would be £135 per week plus an additional £10 for each eligible dependent child.

Deputy Doherty: Has any of the 21 people who received pensions relating to deafness in 1995 sought further compensation through civil actions?

Mr. Lyons: I do not have that information at present.

Deputy Doherty: The Secretary General might know.

Mr. O’Callaghan: The answer is yes.

Deputy Doherty: How many?

Mr. O’Callaghan: I do not have the figure, but there are some. I may be able to get it.

Mr. Lyons: An individual who has received compensation, for example, for deafness, through initiating a civil action in the courts is not prohibited from applying for a disability pension under the Army Pensions Acts. He may apply in the normal way for the disability pension. If found eligible for such, there is provision in the Army Pensions Acts whereby any compensation which has been received may be taken into consideration in fixing the level of pension to be awarded.

Chairman: I will confine this session because we have many of the facts we need.

Deputy McCormack: How many retired Army personnel are on a disability pension?

Mr. Lyons: The total number at present is approximately 750.

Deputy McCormack: What percentage is that of the total number of retired Army personnel?

Mr. Lyons: I will come back to the Committee with an exact figure but I believe approximately 8,000 retired Army people are in receipt of service pensions at present.

Deputy McCormack: What is the success rate in terms of retired Army personnel applying for disability benefit?

Mr. Lyons: That is a difficult question to answer. I will give the Committee some statistics with regard to the number of successful applications and refusals in the last couple of years. These do not necessarily relate to the figures I gave earlier. They are the number of favourable and unfavourable decisions. In 1997, there were a total of 44 favourable decisions and one unfavourable decision. In 1996, there were 56 favourable decisions and 15 unfavourable decisions. In 1995, there were a total of 63 favourable decisions and ten unfavourable decisions.

Deputy McCormack: It is very attractive because it is a no lose situation if somebody applies for a disability pension. They cannot lose because whatever disability rate they receive, only half the amount will be taken off their pension. The tax free concession on a disability payment versus the pension makes up the full amount. Whatever disability payment a person receives will be extra to their pension. It is much better to have a disability pension in addition to a pension. Is minimum service required before Army personnel can receive a disability pension?

Mr. Lyons: No; there is no minimum service requirement. If an individual is suffering from a disability attributable to his service, it is irrelevant whether it happened on the fifth day or in twenty fifth year of his service.

Deputy Foley: According to the summary, the rates of pension vary according to the level of disability. The rates are largely pay related in the case of officers, but there is a flat rate for non-commissioned officers and privates. Why is there a distinction? Why do non-commissioned officers and privates fail to get pay related benefit?

Mr. Lyons: The distinction is of very long standing. It goes back to 1927 when the main Army Pensions Act was enacted. I cannot give the Deputy the precise reason for it.

Deputy Foley: That is still the position.

Mr. Lyons: Yes.

Deputy Foley: Officers receive pay related disability pensions and non-commissioned officers and privates do not qualify for pay related pensions.

Mr. Lyons: The basic part of a disability pension for an officer is pay related. It is a flat rate for a non-commissioned officer or private. There is one essential difference which may have been a consideration. NCOs and privates are fully insured under the social welfare Acts. If on leaving the Defence Forces a non-commissioned officer or private is unfit for work due to illness, he will qualify for disability benefit-----.

Chairman: Under social insurance.

Mr. Lyons: -----under the social welfare code. Officers have not been in that position.

Chairman: That was the case until relatively recently. I presume they are in that position now.

Mr. Lyons: That is correct.

Deputy Foley: I do not wish to make an issue of this matter. If officers are not insured, how do they qualify for pay related pensions?

Mr. Lyons: It is not PRSI. The level of disability pension payable under the Army Pensions Acts to officers is determined by reference to their pay at the time of retirement. There is a scale. For example, if an officer is found to be 60 per cent disabled, he will get a basic pension of 29 per cent of his pay at the time of retirement. In a similar situation, an NCO would get a flat rate appropriate to a 60 per cent degree of disability.

Deputy Rabbitte: Mr. Lyons said the procedure is that applicants for disability pensions are referred to an outside doctor. Is the test the same as the one adduced in the cases before the courts?

Mr. Lyons: Yes. At present, I understand the consultant retained by the Army Pensions Board to undertake assessments in deafness cases uses the same system used in relation to court cases.

Chairman: It is the same system used by who?

Mr. Lyons: As used in relation to court cases by Mr. Vivian Kelly. Is it appropriate to mention names?

Chairman: Ideally not. Will Mr. Lyons describe the system of measure?

Mr. Lyons: The system being used at present for the assessment of cases is, I understand, the AMA system. This system is used by the specialist retained by the Army Pensions Board to carry out assessments on its behalf. The results of the audiograms and the assessments are given to the Army Pensions Board by the specialist and it makes its decision on those cases under the Army Pensions Acts.

Chairman: Does the Army Pensions Board use the American system?

Mr. Lyons: No. That is probably not correct. The Army Pensions Board does not use any particular system. I understand the specialist retained by the Board to conduct the tests uses the AMA system.

Deputy Rabbitte: Is the logic not that if 97 per cent of applicants are successful in the courts on the basis of the same test, 97 per cent should, in due course, qualify for a disability pension?

Mr. Lyons: No. That would not follow for some of the reasons I already outlined. I am not in a position to comment on the percentage quoted or whether 97 per cent of litigants have been successful.

Deputy Rabbitte: I attribute that figure to PDFORRA. However, it does not matter if it is 77, 87, 90 or 97 per cent. Can Mr. Lyons explain, if the test is the same, why they should not in due course qualify for a disability pension? The test is the same and it has already been shown that the disability is sufficient to warrant a positive result in court. If a person is sent back in ten years time when they are due to retire, arguably their hearing will have worsened.

Mr. O’Callaghan: Regarding the 97 per cent of cases that have been settled, the Army Pensions Board applies only to ex-soldiers within 12 months. The 97 per cent would not be in that category because many of them are serving soldiers.

Chairman: The measure has not been accepted by the courts.

Mr. O’Callaghan: That is the second important point. No test is accepted by the courts and that is the core of our problem; we do not have a system. That is why the Department of Health and Children is trying to put together what is being commonly called the green book system. Hopefully, this will be adduced in court and accepted by the Judiciary.

Deputy Rabbitte: Just because they are serving officers now does not mean that they will continue to be serving personnel to the end of their normal working career. There is an overlap. I understood Mr. Lyons to say that when an applicant is referred outside for examination by the Army Pensions Board the audiogram, or whatever test is applied, is the same as is adduced in court on behalf of a given litigant. Is that not correct?

Chairman: I do not think it is correct.

Deputy C. Lenihan: Is it the same test?

Chairman: Let me summarise the situation as I understand it. The evidence from the Army Pensions Board is that the outside consultant acting for it refers to the American system of measurement. No system of measurement is accepted in the courts. Has the Department of Defence sought to adduce this in evidence as an appropriate measure?

Mr. O’Callaghan: That would be correct. We are losing sight of the point that people with zero handicap are getting compensation in the courts. They would not get anything from the Army Pensions Board or the Department of Social, Community and Family Affairs.

Chairman: Does Deputy Rabbitte wish further clarification on this point?

Deputy Rabbitte: Perhaps when Mr. O’Callaghan is giving evidence. I am not clear on it.

Chairman: Let me summarise the evidence from the Army Pensions Board. First, the board can only be applied to by ex-servicemen. Second, applications for disablement must be made within one year of service. Third, there is a significant backlog of cases - very few of the 1996 and none of the 1997 cases have been heard.

Mr. Lyons: That is correct.

Chairman: In respect of hearing loss, the outside consultant who acts for the Army Pensions Board refers to the American military measure.

Mr. Lyons: It is the American Medical Association’s measure. I have a figure for the number of service pensioners which Deputy McCormack was seeking. The number at present is, approximately, 5,900 officers and enlisted personnel. I think I mentioned 8,000 earlier.

Deputy McCormack: How many disability cases are waiting to be heard for 1996-8?

Chairman: We have been given those numbers.

Mr. Lyons: There are 365 applications for disability pensions pending of which 181 relate to hearing loss.

Chairman: If an applicant is dissatisfied with the decisions of the Army Pensions Board is there any form of appeal?

Mr. Lyons: There is no formal appeals mechanism but the individual may pursue his claim by producing his own medical evidence. As was indicated in a note to the committee, a reasonably liberal approach is adopted in reviewing cases where additional medical evidence is provided.

Chairman: Thank you Mr. Coffey and Mr. Lyons.

The witnesses withdrew.

Sitting suspended at 4.05 p.m. and resumed at 4.15 p.m.

Chairman: We are now resuming on paragraph 39 of the report of the C&AG regarding compensation for hearing impairment in the Defence Forces and on Vote 36 - Department of Defence.

Comdt. McNamara, President, RACO, called and examined.

Chairman: I welcome Comdt. Brian O’Keeffe, General Secretary, RACO, Comdt. Adrian Ryan, Deputy Secretary General, Comdt. Con McNamara, President and Comdt. Paul Allen, Research Officer, RACO HQ. I invite members of the delegation to address the Committee. While Committee members are fully privileged against any suit, that same privilege does not apply to witnesses.

Comdt. McNamara: As President of the Representative Association of Commissioned Officers I wish to express to the Committee the gratitude of our members for the invitation you extended to us to appear before you today. We are presenting a written submission. It was our intention to submit it earlier but your are aware, Sir, of the circumstance which prevented this from occurring. The members of our team have already been introduced. The General Secretary, Comdt. Brian O’Keeffe is on my right. Comdt. Adrian Ryan, Deputy General Secretary is on his right and Comdt. Paul Allen, Research Officer at RACO HQ is on my left.

In opening our presentation I wish to state as president of the association that RACO is deeply concerned with the Army hearing claims issue and its impact, not just on our members or on the Defence Forces but on the public and the State. I wish to propose that our general secretary present our presentation to the Committee. With your permission, Sir, I request that, after his presentation, questions which members of the Committee may have be directed to the general secretary and be dealt with in that manner. I now call on him to outline RACO’s position on the Army hearing claims issue.

Comdt. O’Keeffe: Noise induced hearing loss in military organisations is the technical term for anything from the trivial loss of hearing through to partial deafness to full deafness caused by an exposure to excessive noise over a period of time. A study of the media coverage of the hearing claims issue in recent months indicates that there is little understanding among the general public of the degree of noise which soldiers can be exposed to. The reality can be illustrated by comparing the peak sound levels from various military and non military sources. For example, the peak sound level of an 84 millimetre recoilless antitank gun is 186 decibels while that of a moon rocket lift-off at 400 metres is 200 decibels. The steyr rifle is 154 decibels while the maximum legal limit for unprotected exposure to impulse noise is 140 decibels. Of particular significance is the fact that on the decibel scale normally used for measuring sound levels, an increase of 3 dB. means a doubling of the amount of noise received by the ear. The average small arms weapon, such as the steyr rifle, is, therefore, 32 times the legal limit while the 84 millilitre antitank gun is 33,000 times the limit.

During the 1970s and early 1980s considerable research was undertaken internationally into the incidence of noise induced hearing loss in soldiers.

Reports of such research carried out in places such as Great Britain, Sweden and Finland indicates that, at that time, a relatively high incidence - possibly as high as 30 per cent - was the norm in armies world-wide. While more recent figures are not available to the association, a review of the available literature indicates that NIHL remains a major problem in all armies. For example, the United States’ Department of the Army’s current instruction document on hearing conservation states interalia that noise induced hearing loss is “one of the most prevalent occupational health impairments in the military”.

In the Defence Forces of the 1950s and 1960s there was, as there has always been, an extremely rigorous regime in the area of safety in respect of traumatic injury or death from hazardous ordnance, from gunshot, for example. However, there appears to have been little knowledge of, or interest in, safety in respect of cumulative type injuries such as hearing loss.

Some military regulations and instructions on hearing protection were issued as early as 1952 but these were very general, included no mandatory clause and applied only to larger, crew served weapons with personal weapons such as rifles, submachine guns and pistols being excluded. That relatively little importance was attached to the issue at the time can be seen from a comparison of the terminology used in one of the first regulations on hearing - general routine order 43 of 1955 - with that used in the same regulation when dealing with the matter of the abbreviations to be used in general correspondence with the Department of Defence and in military orders. On care of hearing, the regulation states that when firing weapons which create a severe blast, officers in charge of firing crews shall ensure that ear protection is available for all personnel in the vicinity of the blast and that cotton wool will be issued to those who require it for this purpose. This is very general and certainly not in keeping with an active policing regime for protection. In contrast to the general nature of this instruction, the order concerning the abbreviations to be used in correspondence, paragraph 29 of the same regulation, states that commanding officers shall ensure that the provisions of that paragraph namely, the paragraph listing the abbreviations to be used, are brought to the attention of all office and typing staff for strict compliance therewith. An order issued in 1961 did extend the scope to include personal weapons such as rifles but there was still no mandatory clause for the wearing of protection. Instead, it states that officers in charge of firing shall “ensure that ear protection is available for personnel”. Again, the manual of range practice issued in 1968 required only that ear protection would be available for personnel. However, it does appear that at least up to the mid 1960s armies world-wide had a similarly relaxed approach to hearing protection.

By the mid 1960s some armies were beginning to gain a greater understanding of NIHL and its causes, an awareness of the damage being suffered by personnel and a realisation that operational efficiency could be seriously impaired by this. For example, the British army first introduced hearing conservation measures in 1966 following findings of widespread high tone hearing loss in infantry soldiers. It introduced the plastic ear plug for general use with ear muffs being made available to specialist users exposed to very intense noises. It is understood that similar measures were adopted by the United States military at around the same time.

Our Defence Forces followed the British example, but not until seven years later. This time lapse in adopting current best practice is a recurring theme up to 1987. Beginning in early 1973, a multi-sized ear plug was purchased for the Defence Forces and made available to soldiers. It was a hard plastic plug which caused endless difficulties in fitting and removal. In some instances soldiers had to have the plug removed by a medical officer. The result was that personnel simply had no confidence in the equipment and, as a result of their experiences, many were positively turned against hearing protection for years.

Apart from the purchase of these plugs, which were not issued to all personnel, no effort seems to have been made to introduce a serious hearing conservation regime at that time. There was no educational programme and even cadet training included no reference to the subject. There was no compulsion to wear protection and there was no policing. In short, there was no system. Ear muffs then in use in the British army for specialist users such as artillery gun crews were not introduced here at that time. Indeed, when the 105 artillery guns were first purchased by the Defence Forces from Britain in the late 1970s they were initially bought without the ear muffs which were an integral part of the guns’ equipment.

In retrospect, it is difficult to understand why the Defence Forces took the course they did in this area in 1973. A survey of the literature indicates that by the early 1970s it was becoming clear that the measures adopted by the British army were not effective and that noise induced hearing loss was still prevalent. It was also becoming clear this was due to a number of factors including difficulty with, and lack of confidence in, the equipment, the fact that many soldiers were not convinced of the dangers they faced of NIHL and the absence of active policing measures. The end result in our Defence Forces was that throughout the 1970s and well into the 1980s officers and enlisted personnel continued to be exposed to the noise of weapons such as the 84 antitank gun at 33,000 times the legal noise level with, at most, cotton wool placed in their ears.

In spite of the evidence available throughout the 1970s that its system was ineffective, the British army did not introduce a new hearing conservation programme until the early 1980s. The catalyst for this was a detailed study carried out in 1979 which showed conclusively that NIHL was still prevalent. Within our Defence Forces, there also appears to have been a significantly increased awareness of the problems in this area from the beginning of the 1980s. In 1985, it was reported that, in the three year period from 1982-1985, approximately 40 per cent of the claims for disability pensions were in respect of defective hearing.

In May 1984, a training circular was issued by the director of training requiring ear defenders, hard plugs or cotton wool moistened with Vaseline to be worn by all firers. In November 1985, a board of officers was convened by the director of training and tasked with examining and reporting on the best form of protection which should be purchased for the Defence Forces in general and for specific areas with special requirements. The report of this board, which appears to represent the first serious effort to address the problem of noise induced hearing loss in the Defence Forces, was submitted to the director of training in June 1986. It is interesting to note that in spite of the 1984 instruction that protection be worn at all times, the board reported that plugs had not been available for general issue since September 1983. It is the association’s understanding that this remained the situation until a new type of plug was introduced in 1987.

Chairman: I presume it is not the Commandant’s intention to read the entire submission as we would simply not have time for that. Would it be possible to summarise the remaining paragraphs?

Commandant O’ Keeffe: Perhaps I could refer to some of the sections in the presentation which the association regards as more important than others. The first of these relates to the question of negligence.

A question which clearly arises in discussions on this issue is whether negligence existed in the area of hearing protection prior to 1987 when the new regime was introduced. While this is clearly a question for the courts to answer in individual cases, the association does have a view on the issues in general terms.

In his evidence before this Committee on 27 November, 1997, the Secretary General of the Department stated that the very tight health and safety standards which currently exist are being applied unfairly to the Army of the 1950s. This is a view which has been echoed in the recent past by both the Minister for Defence and the Chief of Staff. The association accepts that, to a certain extent, this is true. However, we also believe there is sufficient evidence to suggest that, even judged against the appropriate standards of the time, the performance of the authorities - both the military and civil sides of the Department of Defence - in this area between 1966 and 1987 can only be rated as substandard. Evidence for this includes the fact that earplugs were introduced in other armies as early as 1966 but not until seven years later in Ireland and that by 1973, when the hard plugs were introduced here, scientific evaluation should have shown they were inappropriate. In 1973 the plugs were introduced without an education programme to back them up and their use was not made mandatory. The association estimates that the annual amount spent on hearing protection equipment per person between 1972 and 1983 inclusive was approximately three and a half pence. No hearing protection equipment was available for general issue from 1983 to 1987.

The association is not suggesting that the State is necessarily liable in every case brought relating to the period prior to 1987. Nor is it suggesting that any particular individual, political, military or civil, was negligent in the performance of his duties. However, it appears to be clear that those, whose job it should have been to inform themselves in a timely fashion of developments in the area of hearing protection, did not do so. Those whose job it should have been to ensure that adequate equipment was procured as soon as it became available on the market did not do so. Those whose job it should have been to ensure that the equipment provided was used at all times did not do so and those whose job it should have been to police the overall system from research, through procurement to usage did not do so.

Some might wish to classify this as a systems failure of massive proportions. However, the association believes the term “organisational negligence” is more appropriate.

I will move directly to two issues: the impact on the morale of the forces and our suggestions for moving forward.

Chairman: As 15 minutes have elapsed I ask the witness to be very brief. Members will be able to read the submission in full before we come to any final conclusions.

Commandant O’Keeffe: I will move directly to the matters which we consider as requiring immediate action to manage the problem. Given that the Department of Defence has failed to effect a solution in the past seven years, it is suggested it is now necessary to enlist the collective support of all the main interested parties.

The association suggests that the Minister for Defence, as a matter of urgency, convene an expert group to consider the matter and, within a defined time scale, recommend alternative mechanisms and systems for dealing with hearing claims. It is suggested that the group should be chaired by a member of the Judiciary and include representatives of the Department of Defence, the Department of Finance, the military authorities, the Defence Force representative associations, the medical profession, the Chief State Solicitor’s Office, the Bar Council and the Law Society. The association also suggests that, pending the outcome of this group’s deliberation, whatever action is necessary should be taken to ensure the processing of all hearing claims is suspended.

I will leave it at that.

Chairman: What is the role of officers in ensuring that military orders are enforced?

Commandant O’Keeffe: It is their role to ensure they are enforced.

Chairman: Does the witness accept the evidence suggests that the regulations in regard to this matter, which have been in place for the past 40 years, have not been enforced?

Commandant O’Keeffe: I do not agree that is the case. From the early 1950s, when they were first introduced, until the early 1980s, the orders were that hearing protection should be available for personnel, which was done. The hard plugs may not have been available down through the system but cotton wool was available at all times. It was available in the medical bag which had to be present at the firing point at all times. The requirement on officers was to make that available to personnel, which was done.

The people most exposed to damage in this area were the supervisors, the young officers and NCOs, who had to remain on the firing point throughout every firing exercise. They were unaware of the damage which was being caused. There are four officers present and each of us suffers an element of hearing loss as a result of our service in the 1970s when we were young officers.

The responsibility for becoming aware of the danger that this damage was being done, and for putting in place a system to avoid such damage as far as possible, rests with the senior authorities, both civil and military, and not with the field grade officers who were on the firing points.

Chairman: Does the witness not accept there was a certain culpability in terms of contributory negligence by the officers who, by definition, are expected to be leaders of men?

Commandant O’Keeffe: By the junior officers on the ground in charge of firing points? If the officers in charge of the firing points complied with the instructions to ensure the available protection was provided for personnel on the ground, which they did, I cannot see how they were negligent.

Chairman: Does the witness accept that officers knew protection was available at that time?

Commandant O’Keeffe: Sorry?

Chairman: Would officers at the time have been aware through general routine orders, and other orders, that some form of hearing protection was available?

Commandant O’Keeffe: Yes.

Chairman: And they chose in most cases not to use such hearing protection as was available.

Commandant O’Keeffe: The requirement on officers was to ensure it was available to troops and themselves. Most officers would not have been aware of the damage which was being done. Cotton wool was available - some officers used it and some did not. They would not have been aware that great damage was being done. For example, in the 1970s when ear muffs were becoming popular outside, they were not used in the Defence Forces and I have read instances of personnel being told to remove them. The view would have been that if they were required they would have been supplied and if they were not supplied they were not required.

Chairman: However, my point is that the protection which was supplied was not used. One of my difficulties is that the Defence Forces as a body is being accused of negligence; however, it is not an amorphous, anonymous body but is composed of individuals - a lot of officers and a lot of men. Presumably, they are reasonably intelligent people who, the witness acknowledges, were aware some hearing protection was available but omitted to use it themselves. They now accuse the military authorities, as a body, of negligence although they themselves omitted to use protection which they knew was available.

Commandant O’Keeffe: I am not sure that is the case. What was available at the time was cotton wool and hard plugs. The hard plugs were not used for a variety of reasons which I have already mentioned; namely, because people had no confidence in them, they damaged ears and people had to have them removed by doctors.

Cotton wool was used extensively. That was the state of the art protection available to us on the ground at that time and it was used. We now know, of course, that the attenuation factor of cotton wool is about ten and it did not help very much to solve the problem. I cannot see where the negligence by officers on the ground arises. If one is told to ensure that the protection which is provided is made available and one does that, where is the negligence?

In our view, the higher authorities were responsible for informing themselves of the state of the art worldwide and, in our view, they did not do so in time.

Chairman: Is the witness aware of the regimes which existed in other military forces over the years and how they compared with the provisions for our Defence Forces?

Commandant O’Keeffe: As we mentioned in our document, we were in parallel with the systems elsewhere, particularly in Britain and the United States, but until 1987 there was about a seven or eight year time lapse before we came on board. For example, hard plugs and earmuffs were introduced in Britain in 1966. We introduced plugs in 1972 and 1973 and we did not introduce earmuffs until the 1980s. Until 1987 we were behind other armies.

Chairman: By a few years.

Commandant O’Keeffe: By six or seven years. From 1987 onwards-----

Chairman: However, those armies are much larger defence establishments which are world leaders in the area and which other armies tend to follow.

Commandant O’Keeffe: Yes, but seven and eight years is a long lead time, particularly when studies were being published on the matter. We know this now but at that time it was not the job of field officers on the ground to find these matters out, which is the point we are making - the organisation which is responsible for keeping itself updated on world military affairs did not so do.

Chairman: Does the witness know of any other armed forces which have had a similar level of claims for army deafness?

Commandant O’Keeffe: No, but that is not to say they do not have the same levels of noise induced hearing loss. The question is not so much the instance of hearing loss but the systems put in place for dealing with it. Very few armies, to our knowledge, require their soldiers to process claims through the courts; most would provide in-house compensation systems to deal with them.

Deputy Doherty: Did the witness at any time in his early training years consider he was exposed to a risk to his hearing?

Commandant O’Keeffe: No, for a number of reasons: first, the knowledge was not there and, second, it must be said that it is a macho organisation, particularly at that time. People generally were not concerned and when one is an 18 or 19 year old lieutenant one thinks one is going to live forever. The only time I was aware of any pain was when I fired the 84 antitank gun with just cotton wool in my ears and I remember it to this day.

Deputy Doherty: It sounds like horrific condition, based on the statistics which the witness provided and in light of the protection which was available. One must acknowledge that, presuming the information is accurate.

Before the compensation situation arose, was any submission made to the higher authorities advising of the risk and the difficulties arising for members of the Defence Forces? If so, when were such submissions made?

Commandant O’Keeffe: There is the 1985 report on hearing by the board chaired by the then director of the medical services. One of the reasons the board was established was that the figures showed that from 1982-5, 40 per cent of the claims for disability pensions were as a result of hearing loss or damage. There was at least an awareness in the early 1980s that a problem existed.

Deputy Doherty: We heard today that disability pension claims amounted to 107 last year - these have not been processed - and 30 in 1995, 21 of which have been processed. Was there a higher number of claims in the years the witness speaks of than in the past three years? Why has there been a shift?

Commandant O’Keeffe: I do not have the statistics but I imagine there was a higher number because the disability pension was the only system open to personnel to obtain compensation. Hearing difficulties in the Defence Forces have been known about for years. We expected artillery officers to become deaf and most of them did. It was the norm. People relied on the fact that they would receive a disability pension. A number of factors changed around 1991 which caused a problem. First was the introduction of widespread audiometry. For the first time people were having their hearing tested and being told they had a problem which restricted them from firing certain weapons. Second was the change in the Statute of Limitations in 1991. These two issues combined to cause this problem. On the one hand, soldiers were being told for the first time and in large numbers that they had hearing problems which restricted what they could do in the military. On the other hand, the Statute of Limitations now gave them three years from being told such in which to claim. People had a dilemma: either they claimed within the three years or ignored it and relied on the Pensions Board in 20 years’ time.

Deputy Doherty: The advantage in claiming compensation was that one could continue serving in the Defence Forces whereas claiming the pension meant one had to leave because of the disability.

Commandant O’Keeffe: It was after one left that one went to the Pensions Board. This is one of the difficulties. No system other than the courts is in place for claiming compensation and remaining in service.

Deputy Doherty: Would the witness agree that this is a special attraction?

Commandant O’Keeffe: I am not so sure. We understand the number of officers who have claimed is about 100 out of 1,300. Many of my members would be prepared to go in front of the Pensions Board now, if they could do so, and be awarded a pension which would be deferred for 20 or 30 years. They are not looking for cash, but with the Statute of Limitations, they have a problem because the clock is ticking once they are told. What do they do?

Deputy Doherty: I appreciate that the witness has made that statement here today. It is important and I do not think I have heard it made in public before.

As regards the 1989 Act, the subsequent EU directive and the regulations which gave effect to it, did the witness’s organisation make a submission to the Health and Safety Authority inviting it to examine, analyse, monitor and police - words used earlier - a situation which at that stage was clearly one of concern? That is as recent as 1990 when the regulations came into effect.

Commandant O’Keeffe: The association, along with other groups, was involved in the advisory committee established by the Health and Safety Authority to examine how the Act would apply to the Defence Forces and it reported in 1994. We are satisfied with the military response since 1990. Our hearing regime is now state of the art and I do not believe there is better in the world.

Deputy Doherty: Was the organisation satisfied with the response of the Health and Safety Authority?

Commandant O’Keeffe: Yes, it was most helpful.

Deputy McCormack: When was the first claim for hearing loss made? Was it defended? What was the result? Was it conceded?

Commandant O’Keeffe: I cannot answer that question. It is one for the Department because we are not involved in the administration of claims.

Deputy McCormack: Does the witness know how many cases have been conceded by the Department?

Commandant O’Keeffe: We have said in our paper that the vast majority are conceded. In any representations we made to Ministers we put forward the view that the approach adopted by the Department and the State was nonsensical and that cases were being brought to the steps of the court and then settled. We put forward the view that the Department should settle early, thus avoiding many of the legal fees, or else fight cases all the way. To the best of our knowledge, cases are still being settled at the last moment. I know from experience of talking to officers involved in these cases, that they, along with witnesses, are being brought to the courts day after day and this is increasing the charges and costs.

Deputy McCormack: We were informed earlier by the Health and Safety Authority that it was known in industry as far back as 1960 that cotton wool was not an adequate form of hearing protection. It seems the Department of Defence was not aware of this until 25 years later. Is there any explanation for that? If it was known in industry, in the British Army and elsewhere that cotton wool was not the answer, why was it not known here?

Commandant O’Keeffe: That is the exact point we make in our submission. Those responsible for monitoring these things obviously did not do their job. If we are speaking of blame, and I am not sure we are, it falls equally between the civil and military sides of the Department of Defence - the management of the organisation at the top level. The civilian employees of the Department, who for safety matters would have come under the direct control of the Department, were subject to the safety measures and legislation, but it was not extended to soldiers. Situations existed where soldiers worked side by side with civilian workers in military workshops with the civilians subject to the safety regime under the Factories Act but not the soldiers.

Deputy McCormack: It was stated that in 1966 the British Army first found that neither cotton wool nor ear plugs were working.

Commandant O’Keeffe: They introduced their system in 1966. It became apparent in 1973-4 that difficulties existed. A study was carried out on that in 1979 which proved conclusive.

Deputy McCormack: We discovered in 1986 that not alone had we not used them since 1983 but we had done nothing about it up to 1986. We had gone backwards from the situation where they were available to the point where they were unavailable between 1983 and 1986. This Committee was even informed in 1987----

Chairman: We are well over time. Can the Deputy confine himself to related questions?

Deputy McCormack: Is it true that 20 per cent of the applicants for the Army recruitment campaign this year failed the hearing test?

Commandant O’Keeffe: I do not have the figures. I know a considerable number of people did fail the test.

Deputy McCormack: If in previous years the test was more lax than it is now, those people would have joined the Army and would have been able to claim compensation, despite the fact that 20 per cent of them would have hearing deficiencies before they joined.

Commandant O’Keeffe: That may possibly be true. One of our criticisms of the management of this problem since 1991 when it first raised its head in a major way was that, in cases where there is hearing loss and compensation has been awarded, the Minister is being caught for all the loss when some element of every person’s hearing loss is caused by other factors. Studies should have been carried out to discover the normal hearing loss among the general population through other environmental factors. The Minister might then be only responsible for what was caused by his agents.

Deputy McCormack: The very fact of a large percentage of young people applying for admission to the Army failing the medical on hearing deficiencies establishes that it is possible for 20 per cent of people in any walk of life, including this Committee, to have hearing deficiencies.

Chairman: That is a key point in the general debate but it is not specific to this submission. Has the Deputy any more questions?

Deputy McCormack: Are the approximately 1,400 people who have received compensation still in the Defence Forces?

Commandant O’Keeffe: No. I understand most of them to be former soldiers. Of the approximately 10,000 claims, approximately 3,000 are from serving personnel.

Deputy McCormack: What percentage of the 1,400 claims that have been successful are from serving personnel?

Commandant O’Keeffe: I do not have those figures because we do not know what cases were settled. I would say that the vast majority are former soldiers.

Deputy McCormack: Perhaps that question should have been directed to the Secretary.

Mr. O’Callaghan: Of the claims dealt with, 678 are from serving personnel.

Chairman: And what is the total number of claims disposed of?

Mr. O’Callaghan: About 1,500.

Chairman: So it is just under half.

Deputy McCormack: Is the submission not a shocking indictment of the Department of Defence? While the claimants are getting the blame in the press, we are discovering the blame may lie elsewhere.

Commandant O’Keeffe: We are very clear in saying that between 1966 and 1987 we believe that there was organisational negligence in this matter.

Deputy Dennehy: Regarding Commandant McNamara’s comments on public reaction, Commandant O’Keeffe referred to other jurisdictions. The Chairman asked about other armies, saying they did not have this problem because they had other mechanisms. We have had evidence that the United Kingdom allowed £15 million for compensation, while we have been told that £87 million will not be adequate. Surely that is not correct. I thought that the problem was that cases were being contested.

Commandant O’Keeffe: We are dealing at present with a backlog of 30 to 40 years. Other armies would have dealt with this on an ongoing basis.

Chairman: That is one of the difficulties. Britain amended its law in 1987 to disallow retrospective claims. Our 1991 amendment did not deal with retrospective claims.

Deputy Dennehy: That is why the public is concerned. There are legitimate claims. We have been told that the Defence Forces did not have an exemption under the 1989 Act but policed the matter themselves. The Secretary said there was an efficient régime in place at that time. However, that seems to conflict with the 1994 recommendation of the advisory committee, which recommended a new co-ordinated approach with the Defence Forces. Is Commandant O’Keeffe satisfied that the régime is in place? We had a specific case made by Deputy Bell that as late as the 1980s his shooting team was specifically ordered by an officer to remove earmuffs on the basis that those would give the team an advantage over others. What is Commandant O’Keeffe’s view of that matter? We must get this right for the future.

Commandant O’Keeffe: In the area of hearing protection and safety on ranges we are satisfied that our procedures are state of the art. We are not satisfied that the 1994 recommendation for an adequate structure has been implemented. The most senior officer in the Defence Forces with direct responsibility for safety is a Commandant in Defence Forces headquarters. He is in a subsection there. In each of the brigades the only full-time health and safety official is a Corporal. The Commandant at headquarters is junior to every unit commander he is trying to police.

Deputy Dennehy: That appears to conflict with the evidence of the Health and Safety Authority.

Commandant O’Keeffe: The health and safety issue is getting a lot of emphasis in the Defence Forces in the last few years. A lot of the credit is due to the Health and Safety Authority and the Defence Forces Advisory Committee, which is headed by a Lieutenant-Colonel. However, that is a part-time function. Part of that committee’s activities is to put this matter on a sound footing for the future. The new organisation proposed fro the Defence Forces suggests having a Commandant in charge. Battalion commanders are Lieutenant-Colonels, and the new brigade commanders are Brigadier-Generals. We propose a Brigadier-General should be in charge of this new area, who will be of equal rank with the battalion commanders. There may be another issue in the future, and whoever will be in charge of safety will need to ensure we keep our eye on the ball.

Deputy C. Lenihan: All speakers have served overseas. Has any speaker served with troops from other forces who wore proper ear protection?

Commandant O’Keeffe: It would not be seen so often, and one would not look for ear protection when there is shooting.

Deputy C. Lenihan: All of the speakers are experienced enough. On how many occasions did troops from other countries serving overseas with Irish soldiers have superior ear protection?

Commandant McNamara: I served in four missions. I served for two years in an observer mission in the Middle East with 19 other nationalities. That was 1979 or 1980. There was no hearing protection then, but that was a demilitarized security zone. I served in a much more operational mission in Lebanon where there were active exchanges of antitank fire. We had the use of hearing protection then and other nations did not.

Deputy C. Lenihan: What countries did not?

Commandant McNamara: The Ghanaians did not.

Deputy C. Lenihan: What about the Swedish?

Commandant McNamara: There was no Swedish battalion in the Lebanon at that time. We had Finnish battalions near us, and if they had protection I never noticed their troops wearing it.

Chairman: What year was this?

Commandant McNamara: This was while serving with UNIFIL. I came back in 1990.

Chairman: So that would have been 1989 or 1990.

Commandant McNamara: 1991.

Commandant O’Keeffe: Commandant Ryan served in UNIFIL headquarters, where there were other nations.

Deputy C. Lenihan: I will be more forensic. How many of the spokespersons served in situations where they were absolutely clear that their protection was inferior to those serving around you on UN missions?

Commandant O’Keeffe: Generally, before 1987 we would not have been aware of having inferior protection because we were not conscious of the issue.

Deputy C. Lenihan: This begs the question: what is meant by organisational negligence? Commandant O’Keeffe says there was a consistent failure from 1966 to 1987 on the part of the military authorities in relation to this issue. However, no speaker can identify an occasion on which Irish troops were supplied with inferior ear protection relative to other countries. African countries have been mentioned, but in terms of European countries--

Commandant O’Keeffe: If one takes Border service, clearly those across the Border had superior protection. The question arises from 1966.

Deputy Lenihan: There were joint operations with the British along the Border.

Commandant O’Keeffe: I did not say that.

Deputy Lenihan: In other words it is a retrospective review. I am talking about people serving alongside the Irish forces on similar missions.

Commandant Ryan: It is a very unfair question.

Deputy Lenihan: I wish to finish the question. It is easy to read through manuals retrospectively. I am talking about people in similar situations, including military, operational, etc., who had inferior equipment. There was a failure to mention any situation where there was inferior equipment.

Commandant Ryan: It is a very unfair question because the Deputy asked it with specific reference to UNIFIL. I served in the headquarters in Lebanon in 1984. We did not go on collective firing exercises with other foreign nations. Other foreign nations had to complete their own annual range practices and regular firing practices. They did so on their own ranges amongst themselves. The Irish forces completed their range practices in the Irish Battalion area; the French practised in the French Battalion area and the Ghanaians practised in their own area. There was very little interaction between the Irish, French, Swedish, etc. regarding whether ear defenders were worn and the type of safety procedures they had in relation to the protection of hearing at home or abroad. That type of discussion was never entered into during the periods I served overseas. It was not considered a factor. However, I recall seeing the French on a number of occasions going out to fire with all personnel having ear defenders.

Deputy Lenihan: What year was that?

Commandant Ryan: That was in 1984. I also recall speaking to a number of senior officers who went abroad on military courses being issued with ear defenders - not plugs - on firing courses in England in the 1960s. I am aware that those officers made reports, in their course reports, upon their return home.

Deputy Lenihan: That is interesting. Commandant Ryan is saying there have been cases of members and former members reporting concern, consternation or worry to the Department or senior military officials relating to this specific lack of ----

Commandant Ryan: No, that is not what I said. I said I was aware of officers who served abroad, who were issued with ear defenders and who subsequently returned and reported that they had been issued with this equipment while abroad.

Deputy Lenihan: Despite the fact that we are attributing organisational negligence in the period from 1966 to 1987 to either the civilian or military authority, nobody from the middle ranks, who attended courses in the UK and elsewhere and who saw people with ear muffs, brought this issue to the attention of their military or civilian superiors.

Commandant O’Keeffe: What Commandant Ryan said ---

Deputy Lenihan: It is a macho organisation.

Commandant O’Keeffe: Every military organisation in the world at that time was macho. There is no doubt about that.

Deputy Lenihan: It was never pointed out.

Commandant O’Keeffe: Commandant Ryan said that every officer who completed a course abroad completes a detailed course report on return. This would include the various equipment they were issued with. There was organisational negligence in that the state of knowledge on hearing through that period was greater than was brought home here. Whoever was responsible within the organisation for keeping up to date on such issues did not do so. Obviously, field officers who go abroad would not be conscious of hearing equipment because they were not conscious of the problem. This is the point we are making. This is where the failure was.

Chairman: The commandant seems to be saying that the Department should have been conscious of the problem while the officers were not, and that there is no personal culpability whatsoever. It is being suggested that the Department should be judged by a different standard.

Commandant O’Keeffe: Both branches of the Department.

Chairman: I think an attempt is being made to have it both ways.

Commandant O’Keeffe: I do not think that is correct. Is the Chairman suggesting that the second lieutenant on the firing point is responsible for this problem?

Chairman: No.

Deputy Lenihan: If they are responsible for their men in battle conditions, why should they not be responsible in civilian conditions?

Commandant O’Keeffe: The manual used in the field says the commander is responsible for all of his men do and what they fail to do. This might be carrying it too far.

Chairman: The Defence Forces have been serving with the UN since 1956 in the Congo. They have been involved in many expeditions, including in Cyprus, Lebanon, Cambodia and Yugoslavia. Alongside them have been the defence forces of up to 50 countries. Deputy Lenihan wants to find out if, on any occasion when serving alongside the forces of other countries, the Irish armed forces had worse equipment in comparison to the other armies.

Commandant Allen: Yes. I served in UNIFIL in 1983 and 1994. In 1983 I served with the Irish Battalion. My only contact with other battalions was at the inter contingent shooting competition. The Finnish Battalion did have ear muffs while we did not.

Deputy Lenihan: Did the commandant feel the urge to point this out to any of his superiors?

Chairman: The commandant may finish his reply first.

Commandant Allen: In 1994 I attended the inter contingent shooting competition which is normally held in the Finnish Battalion. The Irish and Finnish Battalion had ear protection. I do not know what happened in the 11 years in between as I was not present. This is my experience of shooting competitions in Lebanon.

Chairman: It is funny that Finland should be mentioned. Its armed forces were mentioned earlier in the context of having worse protection.

Commandant O’Keeffe: I was referring to studies going back to the 1960s and early 1970s.

Chairman: We can refer to the record - I am sure that is what was said. Deputy Lenihan quoted the case of Finland on two occasions having heard what I did.

Commandant McNamara: In the context of serving in Lebanon, coming back to the 1990s, I referred to two other battalions which did not have such protection. I said the other battalion which I knew possessed protection but which I never saw using it was Finland, our neighbouring battalion. Perhaps what I said was misinterpreted.

Chairman: I thank the witnesses for coming before us. We may recall them on a later date.

Commandant McNamara: On behalf of RACO I would like to thank the committee for inviting us before it again. I hope it will find our written submission to be informative and helpful. Finally, I hope we will be able to reach, sooner rather than later, a solution to this problem which effects our members, the general public and the State. I hope the recommendations we have made are solid and, if followed or implemented, form a basis upon which a solution to this problem can be reached.

Chairman: Among the suggestions made at the outset was that claims should be suspended. That is completely outside the remit of Parliament.

The witnesses withdrew.

Mr. Patrick Grogan, President, PDFORRA and Mr. John Lucey, General Secretary, PDFORRA, called and examined.

Chairman: I welcome Mr. Patrick Grogan, President, PDFORRA and Mr. John Lucey, General Secretary, PDFORRA. We are already in receipt of PDFORRA’s written submission.

Mr. Lucey: I thank the committee for the opportunity to put our views before it. The damage caused to soldiers’ hearing by gun fire and other excessive noise situations is a most serious matter. I submitted a written report to this Committee two weeks ago. Today I wish to emphasise and elaborate on the main points made in that submission.

As an organisation we are concerned about four issues relating to this crisis situation, namely, the damage to the hearing of our members, the ineffective management of the situation dating from the 1950s, the damage to the good name of the Defence Forces both nationally and internationally caused by selective leaking of sensationalist material while at the same time 97 per cent of claims which have been processed are being settled outside or inside of court. Finally, the unnecessary cost in our view which has been inflicted on the taxpayer, not by soldiers who are exercising a constitutional right, but by the mismanagement of this situation now and in the past. PDFORRA recognise and respect the right of its members or any citizen of the State to pursue and vindicate their rights before the courts. PDFORRA had no mechanism or legal right to encourage a member not to pursue a legitimate claim for deafness due to exposure to gunfire or other excessive noise situations.

On soldiers rights, I wish to take this opportunity to address the issue which is of concern to my organisation. Attempts have been made to pillory, bully and embarrass soldiers and ex-soldiers who have decided to exercise a legal and constitutional right. Other sections of the community when exercising such a right are not to my knowledge vilified in such a manner. In the case of damage to soldiers’ hearing and the consequential and inevitable litigation I wish to make the following points, The Government has a duty of care to its soldiers, the kernel of the problem to us in many ways. This issue is well established in the courts. The damage caused to soldiers’ hearing was in a training environment and there was no impediment to the implementation of proper safety standards. Ninety-seven per cent of soldiers and ex-soldiers who have legitimately exercised their legal and constitutional right are having their approach vindicated either before the courts or in the eyes of the Department of Defence. This is an unprecedented confirmation of the soldiers’ rights when compared to any other litigation situation to have arisen in this country.

Hearing Standard. We have referred to the important matter of hearing standards in our written submission. First, the resolution of the hearing standard issue is a matter for the Minister and the Government. We have noted attempts to somehow implicate individuals in this issue. This has nothing to do with individual soldiers. They merely comply with the standards as measured and commented on by experts. Second, we must operate with extreme caution in adjusting the hearing measuring criteria if the objective is to deny individuals their constitutional right. The European standard of measurement is the most applicable to our situation and applies to all Irish citizens.

Over the past few months there has been substantial misinformation published in the media. PDFORRA recognises that the opaque nature of the military administration makes a far more difficult task for the media to establish the facts. However, this should not provide a licence to take slanted information some of which we suspect originates in the Department which has admitted liability for negligence in the courts and turn this material into sensational headlines. We request members of the media not to permit either press releases or off the record comments to divert them from seeking answers to the serious questions to which they have been provided by military sources.

In conclusion I express my reservation on how this entire matter was managed from 1992 to the present day. The State, instead of attempting to divert blame to the soldiers and ex-soldiers who have been injured, must look at its own record and explain why 97 per cent of cases are either being settled outside of court or won inside the courts. The practice of selectively leaking biased and inaccurate material to the media mostly on litigious issues that have no bearing on the central issue, namely hearing damage, should cease and I expect the Minister for Defence would take appropriate action. The vindictive leaking of totally irrelevant and inaccurate material designed to feed a tabloid frenzy has proved extremely damaging to the Defence Forces at home and abroad and to this country. If the Government and the relevant authorities are unable to accept responsibility for all that happened then I strongly recommend that a judicial inquiry be established so that all of the facts can be made available to everyone. PDFORRA is prepared to accept whatever the inquiry reveals. This issue is not a sham. Statistics speak for themselves in this regard. It is a reality which must be tackled with efficiency and creativity so that the overall cost to the Exchequer is minimised and the good name of the Defence Forces is restored.

Deputy Doherty: Does PDFORRA feel it has been badly treated?

Mr. Lucey: Yes.

Deputy Doherty: In view of that you are allocating blame?

Mr. Lucey: Yes, without any reservation.

Deputy Doherty: Are you profoundly concerned about the implications separate and apart from any areas that you might direct your blame to, are you concerned about the implications for the Defence Forces in this country and the impact the compensation mentality is having on the general public?

Mr. Lucey: I would be very concerned that not alone the Defence Forces but the name of the country particularly when I had to answer to international television stations I felt that it was absolutely unnecessary to get at this stage because the signs were there for many years. I felt the report of the health and safety advisory committee in 1993-4 listed all the injuries arising from service and at that time we sought a compensation act and that would be one of the reasons we would be receptive to the Minister on a compensation board.

Deputy Doherty: I will ask you the same question I asked the RACO officers. Did you or PDFORRA formally claim prior to 1990, specifically prior to 1989, when the noise legislation came in? Did you formally complain and to whom did you complain about the risks you were exposed to?

Mr. Lucey: First, we would not have formally complained in 1989 since we did not become a statutory body until 16 May 1991. Second, we were a growing organisation and would not have been immediately aware of the EU protection of workers exposure to noise regulations. We would have been aware of the report of the advisory committee. We did not deal specifically with noise induced deafness. We dealt with all cases of injury and in that context we looked for the compensation board to consider these issues separately rather than going to courts.

Deputy Doherty: Did you discuss your concerns with the Health and Safety Authority since PDFORRA came into existence?

Mr. Lucey: We discussed with them our concerns in relation to the application of the Health and Safety Act, 1989 and the deregations from the application of that Act.

Deputy Doherty: Specifically since 1990 the regulations have been in place which give effect to the EU directive, in the context of that and how those regulations affect everybody in employment, have you been sufficiently concerned to set out your case to the Health and Safety Authority? Did you point out the deficiencies and defects?

Mr. Lucey: We pointed out all injuries, not just hearing.

Deputy Doherty: We are dealing with hearing.

Mr. Lucey: There is a number of other claims that have been made which have arisen from salmonella to whatever. At the time the State operated as if they had immunity against prosecution for personal injuries and operated under that culture that something should be brought in. That was the position of PDFORRA.

Deputy Doherty: You have not answered my question. We are dealing specifically with deafness. What did you say to the Health and Safety Authority? What were you dissatisfied with? What did you specifically focus on in discussions with the authority?

Mr. Lucey: We had discussions with them in relation to the 1989 Act but not in relation to the 1990 Act.

Deputy Doherty: Yes, in relation to the 1990 Act very significant powers were given in law when the regulations were implemented.

In relation to the 1990 situation, very significant powers were given in law when the regulations were implemented. Has PDFORRA been advising its members on pursuing their compensations claims?

Mr. Lucey: No.

Deputy Doherty: Has any support been given to them or advice been sought?

Mr. Lucey: No.

Deputy Doherty: What relationship has PDFORRA with its members on this issue?

Mr. Lucey: Nobody has contacted us on what they should do. Where it has arisen at various committees, we have stated that it is the individual’s constitutional right to pursue a claim. It is their own business.

Deputy Doherty: PDFORRA represents the rank and file members.

Chairman: Only current serving members. Is that correct?

Mr. Lucey: That is correct.

Deputy Doherty: Have they been in contact with PDFORRA or vice versa?

Mr. Lucey: Not in the context to which I think the Deputy is alluding. If the Deputy is asking me if we actively advised people as to whether or which - we did not do so. It is their constitutional right and PDFORRA cannot interfere with an individual’s right.

Deputy Doherty: Has PDFORRA any solutions which might contribute to the resolution of this matter, saving the image of the Defence Forces, protecting the taxpayer and ensuring that the public and international perception of the Defence Forces, which is highly admired by the Department and the public, does not suffer permanently? PDFORRA feels aggrieved. It must get over this attitude and take a positive step into the light. Has the delegation anything to offer the committee? Could the committee say to itself that PDFORRA wishes to find a solution and save massive amounts of money which will result from the continuing actions.

Mr. Lucey: There are a number of aspects to the reply. First, we would be very conscious that an individual soldier’s right under the Constitution and in law would not be diminished by whatever solution is offered. Second, and by way of friendly advice, we are very conscious of the testing system under the 1990 EU protection of workers exposure to noise legislation. All of the systems we have heard about are up to 3000 hertz whereas the measurement used here is 8,000 hertz.. We are conscious and fearful of a number of issues. First, that this would be contested and overturned in the courts, thereby destroying the purpose of what we are trying to do. Second, that it would be acceptable to the courts in the first instance in the context of law whereby we would argue that it is not about which standard is used, it is about the military’s failure to adhere to its own standards and the courts finding them negligent. These two issues would have to be carefully addressed.

We see scope for a compensation board. I have spoken to the Minister on this matter and I am receptive to the idea. We would wish to bring down the legal costs and we think this can be achieved. We are aware of the disparity between awards in similar cases. However, we would be concerned that we did not reach a situation where some form of capping was introduced which could be contested in the Supreme Court. We are very open to sitting down and discussing any proposals. I have had informal discussions with the Minister but I am not sure it would be appropriate to discuss those today. He has to come back to me on this issue.

Deputy McCormack: Mr. Lucey indicated that he was not consulted and gave no advice on claims. What is PDFORRA’s function?

Mr. Lucey: To represent our members on pay and conditions of service.

Deputy McCormack: PDFORRA has blamed ineffective management of the Defence Forces back to the 1950s. Could the delegation elaborate on this point?

Mr. Lucey: Our position is that the Defence Forces introduced safety standards. The problem is in law as distinct from what regulation was involved or what noise level was stipulated. Regulations were introduced which were not adhered to. This may have been the fault of the civil or military authorities or a combination of both, a lack of supervision or all of the above. The courts are saying that it is a case of negligence and the authorities did not provide a proper duty of care. That is what must be tackled. In our view over 90 per cent of cases have been settled or won in the courts. That is the problem.

Deputy McCormack: PDFORRA’s duty is to represent the pay and conditions of its members. Did members who served abroad not learn anything before 1989 which would have improved conditions if related to the proper authorities when they came back from overseas service? TDs are sometimes forced to go on overseas service. We always learn something from our counterparts which we bring back and use to improve our own situation.

Chairman: That is a matter of opinion.

Mr. Lucey: Some of our members bought their own protective hearing equipment.

Deputy McCormack: If PDFORRA, as an organisation, saw personnel from other armies using better ear protection, would it not be the association’s duty to say to the powers that be that its members should have this equipment and campaign for it as well as for better pay and conditions?

Chairman: In fairness, the association has only existed since 1991.

Deputy McCormack: My mistake - the association did not exist in 1989 so it could not do so.

Mr. Lucey: We were an ad hoc association and no one wished to talk to us at the time.

Mr. Grogan: The people I know and work with bought their own hearing protection. It was yellow and they went to the trouble of spraying it green. However, because it was not part of the officially issued Army kit they were barred from wearing it.

Chairman: When was this?

Mr. Grogan: Through the 1980s.

Deputy McCormack: Did no one in authority say that this equipment looks all right?

Mr. Grogan: The Deputy must understand the atmosphere which prevails. If one wears something which is not part of officially issued Army kit, one is not properly dressed. One could not wear Wellington Boots going to the firing range unless they were issued.

Deputy McCormack: I accept that. However, did no one examine this green sprayed equipment and say that it looked like a good idea?

Mr. Lucey: We have no responsibility in this matter. It is a matter for military management. I must point out that the management operated as if we were the British or American armies and that there was state immunity. One does not question what one is asked to do in the Army. The situation was authoritarian - the management was top-down and there were no representative associations. One questioned instructions at one’s peril.

Deputy Ardagh: Mr. Lucey mentioned four areas of concern. The fourth area is unnecessary costs and the mismanagement of the situation. It looks like an area where there is a need for much discussion. We need to get away from the adversarial attitude which exists in the courts. Does PDFORRA agree that Army morale would improve dramatically if this occurred?

Mr. Lucey: My organisation is on record as being receptive to an amicable settlement. We are here to help. We consider the cost to be unnecessary because we believed that the warning signs were there for the best part of ten years at least and perhaps going back further.

Deputy Ardagh: It is necessary to discuss matters with the Minister and his Department and for people to recognise and accept responsibility. However, there is a problem which must be resolved. Would you accept that these two aspects must come together?

Mr. Lucey: I agree. It would have been better to avoid the adversarial hype in the media, involving claim and counter claim, and for everybody to accept responsibility, acknowledge the problem and attempt to resolve it.

Deputy Ardagh: It was mentioned earlier that Army personnel are now seeking large sums of money. They want their disability to be recognised and to receive compensation, but not necessarily in a lump sum. What is your position on the authorities accepting that there was disability which would be recognised when personnel leave the Army, say in ten to 15 years?

Mr. Lucey: That and many other scenarios have crossed our minds. It is something that can be discussed with the Minister. If the Committee recommends a system that impinges on the constitutional rights of soldiers vis-à-vis his fellow citizens and if it is unacceptable to the courts we are in trouble and we will be back here again.

Deputy Ardagh: Is it feasible for the Army and your organisation, which represents enlisted men, to get rid of this adversarial attitude? We must operate on the basis that nobody’s constitutional rights will be taken away. Perhaps concentrating on that point may cloud the issue.

How did matters get to this stage? I understand that following the initial claim, there are now 15,000 claims. Is the legal system partly to blame for this?

Mr. Lucey: The role of the legal system would have to be examined separately. Is this Committee the place for such an examination? It is a non runner without the involvement of those involved in the legal profession.

Deputy Ardagh: Where did matters start within the Army?

Mr. Lucey: Escalation followed the Ryan case, 1989. The case was lost in the High Court and was appealed to the Supreme Court. Despite the fact that the soldier in question had been wounded by shrapnel during a peace keeping operation in the Lebanon, the Chief Justice, Mr. Finlay, ruled that because the location where the incident occurred had been attacked previously on successive occasions and because the individual had been wounded it had not been properly protected and sand bagged. There was also the Byrne case, 1972, and the issue of State immunity. However, the Ryan case was a landmark. It illustrates our argument that this is not only about hearing cases; it is about all personal injuries in the Defence Forces arising from a combination of the culture and the false illusion of State immunity. In addition, perhaps management was not always the best.

Deputy Ardagh: There is a definite need to discuss matters.

Mr. Lucey: Yes, big time.

Deputy Durkan: In his introduction, Mr. Lucey mentioned mismanagement on the question of how matters have arrived at this juncture. This would imply that the military authorities mismanaged the situation. Notwithstanding PDFORRA, at what time would you as soldiers have indicated to the military authorities an anxiety regarding possible damage and so on?

Mr. Lucey: I do not know what would have happened around the country because I would have been stationed in different locations. PDFORRA has consistently said that there should be no blanket exclusions of soldiers from social legislation. We have argued for a long time that the tendency of the Department was to exclude military personnel from legislation. While this did not happen with the 1989 Act it happened up to a point with the equality legislation and the Organisation of Working Time Bill. Given our acceptance that the military is a unique profession, there should be consultation regarding its exclusion where social legislation may impinge on fundamental rights. Blanket exclusions are a major contributory factor to the problem.

Deputy Durkan: Notwithstanding PDFORRA since its existence in 1989-90, at what stage would soldiers have indicated to management that they were concerned about possible damage to their hearing arising from working in unprotected areas and so on.

Mr. Lucey: In 1989 the safety representative in the band hall of Collins Barracks, Cork, called in the health and safety authority to tell him that the hall was not suitable.

Deputy Durkan: Are you saying that the mismanagement occurred since 1989?

Mr. Lucey: The military and civil authorities, including the appointed safety representative, would have been aware of a problem at that time.

Deputy Durkan: There was no means of addressing that situation through a representative organisation. Is that correct?

Mr. Lucey: We were not there.

Deputy Durkan: That is true. Was there any means whereby enlisted personnel, having served abroad with other regiments, could indicate to the commanding officer that that it appeared that others had scientifically determined that there was a hearing problem?

Mr. Lucey: It could have happened on an individual basis. Something must have happened because an attempt was made to introduce measures.

Deputy Durkan: Can you detect or are you aware of any reason or incident for introducing the protective measures?

Mr. Lucey: Of any incident?

Deputy Durkan: Yes.

Mr. Lucey: No, I am not aware.

Deputy Durkan: When was the first claim taken in respect of hearing?

Mr. Lucey: I do not know.

Deputy Durkan: You appear to address the attitude of the public to compensation generally in terms of reference to a compensation culture. On page six, paragraph ten of your submission you refer to your members being conned in the late 1980s by a pay announcement following the Brady report, etc. You go on to say that their families had to live with the ongoing threat of the closure of barracks, etc. I am concerned that you considered it necessary to list those items in the context of this hearing. Was there a reason for this? It does not appear to be related to the subject matter.

Mr. Lucey: It is. It is concerned with the entire situation. A soldier operated under an authoritarian, hierarchical structure and had no rights as such. There were certain provisions under the Defence Act but the system was stacked against one. The problems with the pay issue and conditions of service in 1988 would have been the spur which started the roller coaster. Members of the Defence Forces became aware not only of their individual rights but also of their collective rights.

Following the report of the health and safety authority we compiled an article for our publication in 1992-3 on hearing and the problems associated with it.

A person’s rights under social legislation and pay and conditions are not, either individually or collectively, separated from hearing injuries or any other type of injury.

Deputy Durkan: Would you be conscious, as an organisation, of the age of complaints in the cases which have been settled or determined by the courts?

Mr. Lucey: The best information available is contained in the health and safety report which states that 17 per cent of all claims for personal injuries between 1988 and 1993 related to noise induced hearing problems.

Deputy Durkan: In the Defence Forces?

Mr. Lucey: Yes. The information is contained in the health and safety report for that period.

Deputy Durkan: Would those claims have originated in the 1960s, 1970s or 1980s? When was the damage, which caused the loss, incurred?

Mr. Lucey: I have no idea. When individuals make a complaint, many of them wish to keep their business private. They would not necessarily consult with us at all. We would often have no awareness of a claim until it appears in the media.

Deputy Dennehy: Is Mr. Lucey satisfied with the post 1989 situation in the Defence Forces and the approach taken in relation to hearing since then?

Mr. Lucey: It is my view that if the Defence Forces had applied hearing standards and protection measures, we would be answering very few cases here today or at least be discussing them in a very different context. From what we have read, it seems to us there may have been an initial attempt to introduce standards but that this faded out. We have also read that hearing protection was not provided due to lack of money or due to the fact that money, when it was provided, was used for something else. We cannot be sure of the origins of the problem.

Deputy Dennehy: Do you think the Health and Safety Authority should, as they are statutorily bound to do in all other situations, police the 1989 health and safety regulations or should it continue to leave that function to a regime within the Army?

Mr. Lucey: No.

Deputy Dennehy: Most people would not have been aware of the fact that the intensity of noise could be doubled by virtue of a 3 per cent increase in dB levels. The level of noise which would arise with heavy weapons is horrific. Do you think, that if armies are not to be disbanded, it is possible to provide adequate protection in all situations while allowing for the normal requirement of hearing orders, instructions and so on?

Mr. Lucey: In my opinion, it would be very difficult to achieve that in a war situation. The Supreme Court recognised that in the Ryan case. Health and safety standards must be exercised to the highest possible degree. The issue has never been tested in the Supreme Court but that may happen in the future. The whole issue has fallen down because health and safety standards were not provided in training. I am aware that now bandsmen have been issued with a special type of hearing device which attenuates the noise of their instruments; I think a trombone is something of the order of 100 dB.

Deputy Dennehy: I have been in situations where I have had to measure and provide safety barriers. I found it difficult to comprehend the figures given for firing a rifle at 158 dB.

We have heard submissions from RACO. The proponents of one side of the argument have referred to mismanagement during the 1980s. There is a civilian and military wing within the Army. At what level or rank should one begin to apportion blame to the military arm? The military disclaimed any responsibility for directing people. People automatically assume responsibility in the field of industry. I am not familiar with the pecking order in military ranks but where would one start to apportion blame for people not having drawn attention to, accepted responsibility for, or enforced, regulations? Some regulations were not enforced and there was also a lack of knowledge in other areas.

Mr. Lucey: A case of hearing protection not being provided would go to Quarter Master General level which is the highest level in the Army. If hearing protection is provided, it is the responsibility of the officer in charge of the range on the day to see it is used. This is usually a captain although it could be a higher or lower ranking officer.

Deputy Dennehy: Mr. Lucey pointed out that in some situations all reasonable attempts were made to get things right.

Most people are not familiar with the operations of the military. We are aware the Army is an authoritarian group but we do not know who gives orders. It would be important to know that.

Does Mr. Lucey feel that the existence of spokespeople or unions within the Army would have helped to deal with the problem at an earlier stage?

Mr. Lucey: I think it would have helped considerably.

Chairman: Does Mr. Grogan wish to comment?

Mr. Grogan: Deputy Ardagh asked how the hearing problem escalated. It is important to state that enlisted personnel were sent for compulsory hearing tests and were informed, in writing, by the military that they had suffered hearing loss. Restrictions were placed on such personnel whereby they were not allowed to go to the shooting range, the Lebanon or to carry out certain duties. That action was prompted by the Army. Some people were actually discharged from the Army because of their hearing difficulties. That is why this issue has escalated. People were left in a very uncertain atmosphere in relation to being discharged. A man on the street would not be able to say what level of hearing loss he had. He would be forced to rely on medical evidence and legal advice as to whether he would be allowed to stay in his job. I feel it is important to make that point.

Deputy Rabbitte: Perhaps I will start with that point. We have elicited a great deal of interesting information and opinion at today’s meeting but I think it is fair to say that the average taxpayer wants to know how a trickle of hearing claims exploded in this manner. What is the layman’s explanation for that? Do I understand that the President of PDFORRA is saying that numbers have exploded because Army personnel received a letter from the military authorities telling them to have a hearing test.

Mr. Lucey: No, they did the hearing test and told people they had a problem. The hearing test was made compulsory.

Deputy Rabbitte: When was this?

Mr. Lucey: 1995-6.

Deputy Rabbitte: What brought that on?

Mr. Lucey: We do not know.

Deputy Rabbitte: Is that point being contested? What does Mr. O’Callaghan have to say about that? That is new information to me.

Chairman: We were told that in a different forum. Would Mr. O’Callaghan like to comment on that point?

Mr. O’Callaghan: It is true that in 1994 and 1995 the military introduced a medical system whereby they tested people. However, at that time they were working under EU regulations. It is a common problem for people to mix up screening audiology with diagnostic audiology.

The purpose of the test was to discover whose hearing was in danger and who was approaching a problem. If they had a problem they were given a certain category, were told to wear double hearing protection and, in some cases, could not do certain duties. I am not aware of any case of anyone being discharged. However, I accept what Pat Grogan said and it may be the case that a small handful were discharged. We are talking about a tiny number.

Deputy Rabbitte: Did it trigger the litigation?

Mr. O’Callaghan: No. In my view, the litigation was triggered by people getting £80,000 in 1995 and 1996 for 1.6 per cent hearing disability or £20,000 for having normal hearing. The learned judge said that if they had not been in the Army they would have had above normal hearing. That is what triggered the litigation, nothing else.

Deputy Rabbitte: If I was an average enlisted man and, whatever the purposes of the audiogram conducted on me, I got a letter from the audiologist saying I had defective hearing or my hearing would be at risk if I were exposed to certain circumstances and I was being allocated to an inferior category or whatever, surely that would tend to point me in the direction of my solicitor?

Mr. O’Callaghan: I accept the point made by the Deputy. However, we have 3,500 claimants serving in the Defence Forces at the moment. They have not all been downgraded. The vast majority of them can go to Lebanon, do all duties and be promoted. In other words, the vast majority have incurred no loss of earnings, position or status.

We realise that the hearing of some members of the Defence Forces has been severely damaged and they are entitled to compensation. If their hearing has been badly damaged there is no question that they are entitled to hefty compensation. Our difficulty is that we have thousands of claimants who would get nothing in other jurisdictions, such as Britain and the US.

Chairman: Of the 11,600 claimants, about 3,500 are serving Army personnel. Therefore, about 8,000 are retired Army personnel.

Mr. O’Callaghan: That is right.

Chairman: What proportion of those would have been serving when these audiology tests were done?

Mr. O’Callaghan: Very few.

Chairman: Therefore, it would not have applied to a large proportion of them.

Deputy Rabbitte: Given what Mr. Lucey said about the authoritarian nature of any army, is he saying there was no channel through which complaints could be made prior to the founding of PDFORRA? It seems extraordinary that a large number of men - I presume the forces are predominately male - who believed damage was being done to them on a daily basis had no channel to communicate that.

Mr. Lucey: I am not saying that. There are two systems. There is a complaints system whereby one can go directly to the chief of staff on his yearly inspection and the other is called the redress of wrongs system.

However, in our view, the redress of wrongs system never operated adequately. It was a culture where standards which pertained outside did not apply, except on the will of the military commanders. The civilian population peeped over the walls and wondered what went on in there. No outside interference was allowed and no outside standards were applied. There was a very disciplinarian regime within that system where individuals who vehemently pursued grievances were often subject to secondary discipline, which could mean they were not promoted.

As I said earlier, it was also a time when members of the Defence Forces - including some high ranking officers - believed there was State immunity from prosecution. It was only when people became aware of their rights, which coincided with the advent of representative bodies, that they began to question these matters.

Deputy Rabbitte: If there was a judicial inquiry, what would the records in the Department of Defence show that would be pertinent to the case?

Mr. Lucey: We are saying that terrible damage has been done to the Defence Forces and the country by the adverse publicity about certain claims, not all of which were hearing related. The media bear a certain amount of responsibility in that regard. When we look at the statistics we see that 97 per cent of claims were settled either in or out of court. At the same time, words such as “scam”, “bogus” and “frivolous” have been used.

We are calling for a judicial inquiry because PDFORRA is prepared to be wrong. We want to look at what the problem was, how it arose and try to learn from the past. The representative bodies should sit down with the interested parties and reach a solution to reduce the inordinate cost to the taxpayer. That is our position.

Chairman: Does the Secretary General wish to comment on that?

Mr. O’Callaghan: I wish to comment on the 97 per cent of cases which went against us and whether we should have seen the writing on the wall. When the early judgments went against us we realised we would be hammering our heads off a stone wall by appearing before the same judges with similar cases so we began to settle cases. We picked the cases which we would fight and reduced the quantum. We are now winning more cases in court than we are losing. Last year, over 50 per cent of the cases we fought in court went our way and were either dismissed or withdrawn.

Chairman: I will allow Deputy Rabbitte conclude and then summarise this segment. We will then have open questioning of the Secretary General for 15 minutes.

Deputy Rabbitte: Did the Department appeal any of the cases?

Mr. O’Callaghan: No. We threatened to appeal the award of £80,000 but the other side settled for £55,000.

Deputy Rabbitte: But if the Department was trying to make a point why did it not pick a good case to appeal?

Mr. O’Callaghan: The fear was that if an appeal went against us in the Supreme Court our case would be lost.

Deputy Rabbitte: Does Mr. Lucey accept that just because one of his members gets a finding of the court it does not necessarily mean his hearing is seriously impaired in all cases? Does he accept it is possible for people, whether they are civilians or members of the Defence Forces-----

Mr. Lucey: We accept the findings of the courts. That is our position.

Deputy Rabbitte: However, does he accept, whatever the findings of the court, that whether one is a civilian or a member of the Defence Forces, it is possible to have an award made on grounds which might not be true?

Mr. Lucey: We have no evidence of that. I have said before that everyone has a constitutional right to take a case-----

Deputy Rabbitte: Can I ask-----

Mr. Lucey: Can I answer the Deputy’s question?

Deputy Rabbitte: Can I just ask-----

Chairman: Deputy Rabbitte should let Mr. Lucey answer the question.

Deputy Rabbitte: I wanted to make the point-----

Chairman: Please, Deputy.

Mr. Lucey: I agree that some people may feel morally, although not necessarily legally, that they should not pursue a certain case, but that is a moral judgment for the individual. Until such time as the Secretary General or anyone else here tells me a large number of cases have been found against, it is fine by me.

Deputy Rabbitte: Why does Mr. Lucey continue to raise the point about any finding of this Committee impairing the constitutional position of a member of the Defence Forces? First, it is not the intention of this Committee to make any such finding. Second, we would not be permitted to do so. Why does Mr. Lucey continue to raise this point?

Mr. Lucey: That is why I called for a judicial inquiry. I believe that would do it.

Deputy Rabbitte: Is there something behind all this? Why should Mr. Lucey anticipate that an organ of the Dáil would be likely to bring home a report which would in any way diminish the constitutional rights of any citizen?

Mr. Lucey: I have read statements from the Minister and others - I do not know if they are accurately reported or not - stating that it might be necessary to hold a referendum.

Deputy Rabbitte: What does Mr. Lucey mean when he says he is looking for an amicable settlement? I understood him to say that the members of the Defence Forces involved in litigation were doing it in their own right and on their own merits. Is he saying the organisation could intrude at this stage to work out some common sense method of mediation of outstanding claims?

Mr. Lucey: We would be bound to protect the individual’s rights under the Constitution and we would be fearful that whatever might result from this without our input would in some way diminish the rights of a soldier as against his civilian equivalent. We would be fearful of that because of what we have read in the media, such as statements attributed to certain people.

Deputy Rabbitte: What does Mr. Lucey mean when he says he is in favour of an amicable settlement? Does he mean PDFORRA could become involved centrally and that its members would give allegiance to some kind of machinery which would be less of a financial imposition on the Exchequer than the current method of mediating those claims?

Mr. Lucey: We would query with the board, or any board which would deal with this, whether all the legal costs are necessary since most of the cases have been settled either in or out of court. A total cost of £40,000 for an average settlement of £25,000 is unnecessary, although I am told that the average claim is reducing. Since the State has accepted liability in the majority of cases, perhaps that is the way to go. We would be very concerned about a deviation from European standard. We would feel duty bound to advise any board that a deviation from the EU regulation using some other system would be contested in the Supreme Court.

Deputy Rabbitte: That is very informative. Is it true that soldiers were disciplined in the past as a result of taking their own initiatives to protect their hearing?

Mr. Lucey: I am not aware of them being disciplined. I am aware of soldiers being informed that, if they did not remove their own hearing protection, they could possibly be disciplined, but I am not aware of any case where an individual was brought in and fined.

Mr. Grogan: It was reported in one of the papers. It came out in court where a sergeant in the south said he was disciplined in a small way. He was asked to carry something three times around the square or something similar. That is the only time I have heard of a person being disciplined.

Chairman: We are very grateful to the delegation for attending today. As members of the public and Members of the Dáil, we are very proud of the record and service of the Armed Forces in this country. We should always be mindful of that.

However, Mr. Lucey himself mentioned the international interest in this issue and it arises from the fact that this situation is unique. In all the work this Committee has done, we have not found any comparable situation in any other jurisdiction. Does Mr. Lucey know of any comparable situation in any other jurisdiction?

Mr. Lucey: No, but I know the reasons why there is none.

Chairman: I would like to hear those reasons.

Mr. Lucey: Until 1987, the King or Queen in England could not be impeached. In America, specific legislation prohibits it, although that is now being tested. A different measuring standard is in use. Hearing protection is provided. It is not a case elsewhere of claims dating way back.

Chairman: Does Mr. Lucey agree that international comparison is valid? For example, our safety standards can and should be compared to those abroad. Does Mr. Lucey think it is reasonable we should have safety standards here as good as those abroad?

Mr. Lucey: I do not disagree with it.

Chairman: This is my difficulty. Why is it then we should not accept the measures accepted in almost every other jurisdiction?

Mr. Lucey: I do not agree with the Chairman.

Chairman: Mr. Lucey agrees with one part but not with the other.

Mr. Lucey: No, our measures are the European Union measures.

Chairman: There is no European Union measure of which I am aware dealing with the military measurement. Is Mr. Lucey aware of any such?

Mr. Lucey: A citizen under the Safety, Health and Welfare at Work Act, be he a soldier or otherwise, is no different. The Act applies equally to soldiers.

Chairman: We are talking about social protection. If we enter into international comparisons for safety factors, surely we should have international comparisons for measuring damage factors.

Mr. Lucey: No, I do not agree with the Chairman. He is drawing a distinction between another citizen and a soldier under EU regulations.

Chairman: Would Mr. Lucey agree that the civilian measure in the Department of Social, Community and Family Affairs should be applied to the military?

Mr. Lucey: The civilian measures are not the same as the European standard.

Chairman: Is Mr. Lucey saying the social welfare standards do not meet EU requirements?

Mr. Lucey: As I understand it, they measure up to 3,000 Hz. I stand open to correction if the measurements are done otherwise. The European measure requires measurement up to 8,000 Hz.

Chairman: The Department of Social, Community and Family Affairs scheme has never been contested by the European Union or anyone else and, as far as I know, is completely valid under European Union law and is exactly similar to that operated in other jurisdictions. Does Mr. Lucey not accept that?

Mr. Lucey: The Statutory Instrument signed by the Taoiseach outlines that hearing measurement is made up to 8,000 Hz. If the Chairman is saying a measurement should be introduced which deviates from that, it will encounter problems.

Chairman: Does Mr. Lucey accept that international comparisons are valid for safety standards?

Mr. Lucey: I accept that the European Union regulation applies in this country, and it is applied under a Statutory Instrument and under an EU directive we accepted.

Chairman: Is Mr. Lucey aware of a Department of Social, Community and Family Affairs scheme for dealing with deafness claims for those in certain social insurance categories?

Mr. Lucey: Yes, I am aware of it.

Chairman: Has he any reason to believe that that scheme is invalid, illegal, unconstitutional or not in keeping with European Union law?

Mr. Lucey: I believe it is outside it, because as I understand it, it measures up to 3,000 Hz, like the AMA and the British systems, and that is not consistent with European law.

Chairman: Mr. Lucey believes that, but if it turns out the system of the Department of Social, Community and Family Affairs is upheld, would he accept the standard should also be applied to the military?

Mr. Lucey: I would have to examine it, because I am not familiar with precisely how it works.

Chairman: Mr. Lucey has been saying all along the military should be treated just like civilians.

Mr. Lucey: The Chairman is trying to trick me. The law is the EU law and that is what applies. The Chairman is trying to get me to say I will agree to a deviation from that.

Chairman: I am not trying to trick Mr. Lucey. I am trying to elicit by way of inquiry whether or not he is being open, fair and consistent with this Committee.

You are being open, fair and consistent with the committee. You say that you believe the military should be treated the same as civilians, but then you seem to reject the social welfare standards that apply to civilians for the military.

Mr. Lucey: The social welfare is out of step with EU regulations. That standard must be brought up. That might be contestable.

Chairman: It never has been contested.

Mr. Lucey: That does not mean that hearing will not be contested at one time.

Chairman: If it were contested and upheld, would you be satisfied that that standard would apply to the military?

Mr. Lucey: If the courts upheld it, yes.

Chairman: We heard earlier that none of the representative cases put to the Department of Social Welfare, all of which got awards, would have got an award.

Mr. Lucey: There were ten cases.

Chairman: We know that there are international measures which have not been accepted by the courts. There is one that the American Medical Association does and there is a UK measure. Should we reject those standards?

Mr. Lucey: We have problems with those tests.

Chairman: But you have no problems with their levels of safety? My problem is that you seem to want the levels of safety from other countries but not their levels of compensation.

Mr. Lucey: Levels of safety are inadequate if levels of protection are inadequate, which is the problem here, we are saying that the more safety measures we have the better. You are trying to get me to say--

Chairman: I am not trying to get you to say anything.

Mr. Lucey: -- is that a system that is out of sync with the EU regulations may be acceptable. I am saying no.

Chairman: I beg your pardon. You must not put words in my mouth. I am asking you questions, and I do not want you to divert from those questions. I want to find out how serious your association is about resolving this problem honestly and facing up to the consequences. You accept that there is international interest in this matter, obviously because of the exceptional nature of the matter. You have also referred to the effect this is having on the morale of the Defence Forces. I want to see what is likely to be acceptable. Are international standards acceptable in almost every jurisdiction I know of acceptable to you, or would the Department of Social Welfare’s standard for civilians be acceptable?

Mr. Lucey: No. I am saying that, to us, the EU regulations are the standard. If one deviates from that in any recommended solution without EU law being changed, it will be contested.

Chairman: Of course.

Mr. Lucey: In our view you will lose.

Chairman: There is confusion here about two things. The EU noise law and regulations set out particular safety measures for hearing protection. It does not set out a compensation grid.

Mr. Lucey: You are saying that the Social Welfare level is up to 3,000 hertz.

Chairman: I am not saying that. I am asking if you accept that the same rules that apply to civilians should apply to the military regarding compensation?

Mr. Lucey: The same rules that apply in European law should apply to all civilians, including soldiers.

Chairman: You would accept then that if the British system is consistent with European law that that would be acceptable.

Mr. Lucey: If it is, but it is not.

Chairman: So they have army deafness law and we have social welfare law that is not consistent with European law.

Mr. Lucey: I cannot answer for what the British do, but, in seeking a resolution, if the EU regulations are ignored there will be trouble.

Chairman: We cannot ignore EU law, but you are saying that army deafness regulations in the UK and social welfare regulations here are not in keeping with the law because it does not suit your members.

Mr. Lucey: I am not saying that. If the EU regulations are ignored in the search for a resolution to the problem there will be trouble.

Chairman: It is clear that there is something amiss in our jurisdiction because there are no claims like this anywhere else. Do you accept that?

Mr. Lucey: There are no claims because there was State immunity in most countries against soldiers claiming. This applied before 1987 in Britain.

Chairman: Do you know how many claims there have been in Britain since 1987.

Mr. Lucey: I have no idea.

Chairman: There have been 296, compared to 11,000 in our case. They have 300,000 people in their army.

Mr. Lucey: You are speaking out of context. If they could claim the same way as us, because safety standards introduced by the military were not adhered to and the military was found negligent in law, they would be in a worse situation.

Mr. O’Callaghan: We seem to be having confusion about the EU regulations about hearing testing. The EU regulation for screening purposes, like a cholesterol test, screens up to very high frequencies - up to 8,000 hertz. Mr. Lucey is right. However, there is no European system for measuring hearing handicap. It is a pity Dr. Murphy of the Health and Safety Authority did not get this question. We have adduced evidence in court from him that there is a huge difference between screening audiometry and diagnostic audiometry. There is no EU regulation about measuring hearing handicap, but it happens that there is a regulation for the protection of workers that one measures over a vast variety of frequencies. That is not used for compensation purposes.

Mr. Lucey: Is it not correct that last October the military introduced a system that includes measuring above 3,000 hertz? Their argument related to compliance with EU regulations. They measure at 1,000, 2,000, 3,000 and 4,000 hertz. The system referred to relates to 3,000 hertz.

Chairman: I am asking if that which has worked for everybody else is acceptable to your organisation, with which you appear to have difficulty.

Mr. Lucey: No. We have difficulty with not being included in any meaningful discussion to resolve this. We have difficulty with the media campaign and with the Defence Forces being hammered into the ground nationally and internationally. We are worried that State immunity may be brought in so that soldiers are treated differently from other civilians. We are prepared to talk about almost everything raised here, but do not recommend bringing in a system that is in conflict with EU regulations.

Chairman: There is no question of that.

Deputy Doherty: It is not comparing like with like if one compares the Department of Social Welfare regulation with the EU regulation. The former has set its own standards in law based on what the State can afford to pay to people in particular circumstances. That is statutory-based. In the EU context, one is dealing with health and safety as a measurement, which the Secretary has said. We have had further evidence today outlining that the rehabilitation board deals differently again with this matter. using a medical examination, readily saying that a percentage loss affects one to a certain extent. These three things are different, and this is where the confusion arises. It is important not to make comparisons between things that are different.

Mr. Lucey: There are arguments about whether the level of 3,000 hertz is the factor. Others argue that with noise-induced deafness there is a sharp drop at 4,000 hertz. I suggest that a compensation board should discuss this.

Mr. Grogan: We are only interested in solving the problem and I would not like anybody to think otherwise. We have not been involved in the litigation embarked upon by our members. We only became involved as a result of the media campaign. We are only interested in protecting members’ rights as citizens. We will accept whatever the courts or the Government decide.

Chairman: I thank the members of PDFORRA for coming before the committee.

The witnesses withdrew.

Chairman: We have had a very long session. Are there other points which Deputies wish to ask the Secretary of the Department?

Deputy McCormack: Will the Secretary only be available to answers questions today?

Chairman: The Secretary will be here all the time and at the end of each day we will have an opportunity to have a general discussion with him. This will be especially true of the last day.

Deputy Doherty: Of the number of claims now being made, how many relate to injuries which occurred before 1987?

Mr. O’Callaghan: All claims refer to injuries which occurred before 1987.

Deputy Doherty: For the sake of the public interest, is there any particular reason for this?

Mr. O’Callaghan: It has been accepted that we are vulnerable in the period before 1987 and that we got our act together in 1987.

Deputy Doherty: A colleague raised the issue that 20 per cent of those who applied to become members of the Defence Forces in the recruitment campaign were found to have hearing defects. In the context of the social and leisure activities alluded to earlier, including discos, how many young people who joined the Army before 1987 had prior hearing defects and are now making claims?

Mr. O’Callaghan: We do not know.

Deputy Doherty: The age groups and background of personnel might suggest exposure to circumstances external to the Army but for which the Army would allow a cover for compensation.

Mr. O’Callaghan: Of course. Had the 18.5 per cent of applicants who had noise induced hearing loss when medically examined during the last recruitment campaign in the Eastern Command area been accepted into the army in previous years it is possible they would now have a claim.

Deputy Doherty: That is very interesting. It is a pity we are not more capable of establishing the extent of such hearing loss.

Chairman: We have asked for a comparative study of, say, 100 people from the general population and 100 from the Army. When available, the report of the study might be helpful for comparative purposes.

Deputy Cooper-Flynn: It was mentioned earlier that members of the Defence Forces had their hearing tested in 1994 and 1995. Did everybody have their hearing tested at that time?

Mr. O’Callaghan: As far as I am aware they had. The director of the medical corps will be in attendance on Thursday.

Deputy Cooper-Flynn: Will he have the results? Can we have a breakdown of the results? Tests were carried out up to 8,000 hertz, the EU regulation. I would like to know what categories people fell into in terms of those with perfect hearing, those with slight hearing loss and those who were discharged. This would be helpful in the context of discussion of the EU regulation versus the limit of the Department of Social, Community and Family Affairs. Some people, up to 3,000 hertz, might have very acceptable hearing and may not have a valid claim. However, they may not have perfect hearing.

Mr. O’Callaghan: I will try to get that information.

Deputy Gildea: Is it fair for the army to try to get out from under the wire by maintaining that because of the absence of a proper hearing test soldiers are not entitled to take their case to court as they may not have had proper hearing in the first instance, given that the Army was lax in recruiting people whose hearing was not up to standard?

Mr. O’Callaghan: We would find it impossible to prove that a soldier who joined the Defence Forces ten years ago had, upon entering, a problem with his hearing. We could not prove such a situation and we do not try to prove it.

Deputy Dennehy: The enforcement of the 1988 health and safety legislation was left to the Defence Forces. This was a unique situation. Was it done at the behest of the Defence Forces?

Mr. O’Callaghan: As far as I am aware it was.

Deputy Dennehy: Is there any particular reason why? Was it felt anything else would have been an infringement on the structures, authority or command of the Defence Forces? What was the reason for that situation?

Mr. O’Callaghan: Did the Deputy ask whether the Defence Forces are excluded?

Deputy Dennehy: They had their own regime and are not policed by health and safety officers. Would it be better if the Health and Safety Authority enforced the Act, as it the expertise and a neutral approach?

Mr. O’Callaghan: Post 1987 the Defence Forces are a model in the context of health and safety. They are policing themselves but we have no objection to them being policed by the Health and Safety Authority. The HSA has expressed satisfaction with the military authorities.

Deputy Dennehy: The RACO document is very damming, particularly in relation to the early days. There are three specific items raised in it. Will we be getting a response to the points raised?

Mr. O’Callaghan: RACO raised a number of points. We have not seen its submission as of yet. It raises questions about the quality of ear protection. Some of it, including the statement that we were six or seven years behind the state of the art equipment, was news to me. The general staff made a submission which states that the measures adopted for protecting hearing in the period prior to 1987 compare favourably with those of other armed forces. The committee will have an opportunity on Thursday to examine this issue. I am not shifting the onus of responsibility onto the military authorities. Ultimately, I am the accounting officer.

The RACO submission raises some other issues which I find odd. It speaks of the state of knowledge, but it is clear from the 1952 general routine order that the army knew that modern weapons could cause considerable damage to unprotected ears. It states that commanding officers shall issue instruction to ensure that during the firing of all weapons, other than rifles, personnel engaged shall protect their ears with a piece of clean, dry cotton wool. It may not amount to much but the instructions were there.

Chairman: Under the routine order, officers were obliged to enforce those instructions.

Mr. O’Callaghan: Yes.

Deputy Dennehy: We questioned our own role in this matter and we are all trying to establish a defence. Part of the defence is personal responsibility. I asked earlier whether it was possible to get over this conflict. One of the instructions said that when cotton wool is used by members of a firing crew, officers in charge of firing shall ensure that verbal orders are heard by all concerned. This is from GRO/43/55, paragraph 64. We are trying to come up with the best possible solution for all of us, but this is in direct conflict with some of the other orders.

We will need comment on a number of other issues.

Deputy Dennehy: The RACO document is very damming, particularly in relation to the early days. There are a number of other items we will need comment on. It is important to have the secretary present at these hearings so we can clear up matters. I have a query on legal defence but I will leave that because this hearing will continue tomorrow.

Deputy C. Lenihan: Is there an age profile and length of service statistics available on the claimants?

Mr. O’Callaghan: We can provide that information on the claimants who have received awards. The general age profile is 40 years old.

Deputy Rabbitte: Have you a military background?

Mr. O’Callaghan: I was a member of the FCA for two years. I left at 17 years of age which is the age you are allowed to join it.

Deputy Rabbitte: You have far less experience than Deputy Bell. How did the military command prior to 1987 get us into this mess?

Mr. O’Callaghan: That is the £80,000 question. This is not simply a money matter as ear plugs were very cheap in the 70s. We have bought over 200,000 pairs of ear plugs for the Department of Defence since 1972. These were issued to soldiers who signed for them. There are many anecdotes about soldiers wearing ear plugs being told to remove them. Alternatively, there is a case where an NCO was provided with ear plugs for a shoot. It is my view that there was no culture to ensure everyone wore ear protection in the 60s and 70s.

Deputy Rabbitte: For example, the RACO submission states: “As early as 1975 the Department of Defence should have been aware of the damage caused by noise and of the protection required. Their civilian employees were subjected to the Factories Act noise regulations of 1975”. Is it possible to divide the responsibility of the military authority that they treat their civilian employees differently merely because of the dictates of an Act but say it does not apply to the military personnel and say it is none of our business.

Mr. O’Callaghan: I noted that point which Brian O’Keeffe made. First, in the 1970s we would have had about 2,000 civilian employees in the Department. I doubt if he is suggesting that civilian employees were wearing ear protection in workshops by law and that we would not provide it to their colleagues from the engineering or ordinance corps who worked alongside them in the workshop. We can put this matter to the Quarter Master General on Thursday. The 2,000 civilians did not fire on rifle ranges where high velocity weapons were in use.

Deputy Rabbitte: What is the Department’s opinion? Is the harsh uncaring picture painted by PDFORRA the normal behaviour for all armies? Is it a fair description of the Defence Forces?

Mr. O’Callaghan: Do you mean the authoritarian role of officers?

Deputy Rabbitte: The soldiers clearly stated serious concerns about their health and their exposure to dangerous conditions. There was no one they could make a complaint to and the remedy system was not working.

Mr. O’Callaghan: The Deputy should put the question to my military colleagues. My view is that the officers treated their men fairly well. I know the Defence Forces has long held the record for the best medical care system for any organisation.

Deputy Dennehy: I did not realise the question I referred to was covered in the RACO document. Did the Department of Defence receive legal advice not to contest cases? There were three options. First, to concede the case totally and not to make any defence. Second, to contest the case vigorously as is being done at the moment. Third, to pursue the case and give up at the last moment. This has been referred to today. Many people are concerned about the costs incurred by professionals, experts, lawyers etc. by pursuing the case and conceding at the last moment. Why was this course pursued? Was legal advice given to concede cases?

Chairman: We will take a reply to that question tomorrow.

Deputy C. Lenihan: Deputy Dennehy should have an answer to his question.

Deputy Dennehy: My question arose out of the RACO document but I will wait until the legal group come to this Committee.

Mr. O’Callaghan: I have not seen the RACO submission and I would like a copy of it. The three legal options were not submitted to us but they are strategy options that we have considered. We have kept the issue alive by not conceding liability. Of course this is approved by Government. There are three areas of liability, negligence, causation or statute of limitations. Negligence is the classic case of where the military officers in command of firing parties insisting and ensuring that their men and women were wearing fire protection on the day. We have kept that case open. We bought 206,000 pairs of ear plugs in the past 25 years and someone must have worn them.

Many of the current claimants have left the Army for 20 or 30 years. What have they been doing since? Some of them have been working in agriculture. I have mentioned the statistics from North America. There could be medical problems such as ear infections etc. This all comes under causation. Of course the statute of limitations is still in our favour.

That is why we have not conceded liability. The other reason is that if we had conceded liability two years ago at the quantum given by the courts - £80,000 for the 1.6 per cent I mentioned earlier - the bill now would be billions. This is what is called the floodgates argument. We have a responsibility to try to protect taxpayers’ money, as does the Committee. We have no difficulty with genuine claims. One’s hearing is important and we will pay big money to people whose hearing we have damaged. However, our difficulty is the people who have no handicap and who have aged induced hearing loss or bad hearing because of other occupations. No system is accepted in the Four Courts.

Deputy Dennehy: Was there a stage when the Department did not defend cases or when cases were conceded automatically?

Mr. O’Callaghan: No. We have kept this issue open.

The witnesses withdrew.

The Committee adjourned at 6.42 p.m. until 2 p.m. on Wednesday, 4 February 1998.

COMMITTEE OF PUBLIC ACCOUNTS

Dé Céadaoin, 4 Feabhra 1998.

Wednesday, 4 February 1998.

The Committee met at 2 p.m.

Members Present

Deputy J. Mitchell in the Chair.

Public Session.

Chairman: I welcome back the Secretary General of the Department of Defence, Mr. David O’Callaghan, the Assistant Secretary, Mr. Michael Howard, the financial controller, Mr. Pat Hogan, and Principal Officer, Mr. Paul Kelly. Mr. Stephen O’Neill and Mr. Paddy Howard of the Department of Finance are welcome also. Our primary interest is with the Secretary General of the Department of Health and Children, Mr. O’Dwyer, who is accompanied by Dr. Jim Kiely, the Chief Medical Officer. They are both welcome also.

Mr. Jerry O’Dwyer, Secretary General of the Department of Health and Children, called and examined.

Chairman: The purpose of this part of the hearing is to establish the progress which has been made on, and the likely timetable for the provision of, an Irish hearing standard. Am I correct in saying that this standard is not just in relation to Army deafness claims, that it is a national standard for all purposes?

Mr. O’Dwyer: That is correct. The working group is working on the basis that it is for general application by whoever can make use of it in the course of their professional work.

With regard to the timing, the drafting of the report has now commenced and the target date for the completion of the report for submission to the Minister is the end of February.

Chairman: Do you want to make a preliminary statement at this stage, Mr. O’Dwyer? Have you anything else to say at this stage?

Mr. O’Dwyer: No, Chairman. It might be more useful if I responded to members’ questions.

Deputy Rabbitte: Why and when did Mr. O’Dwyer become involved with this issue?

Mr. O’Dwyer: The question of producing this system for the assessment of hearing handicap was first raised with us at the end of August. There were discussions with various people during September and October, the decision to establish the group was made in November and its first meeting with its secretariat took place on 11 December.

At the time the group was set up, the most optimistic estimate of how long it would take to complete the work was six months, but, because of the intensity with which the group is working and the fact that it has available to it a very well trained and experienced medical person as well as the secretariat, it has now targeted the end of February for the completion of its work.

Deputy Rabbitte: Why is there an emphasis in preparing this assessment of hearing handicap on the generality of its application? Has it not been provoked by the unusual phenomenon which the Committee is examining?

Mr. O’Dwyer: The Deputy is correct in saying that the particular context in which the issue arose is as he has mentioned, but there is obviously a very widespread potential application for the assessment of hearing handicap by ENT people, audiologists and others in the course of their work, and perhaps by the Health and Safety Authority. If it is appropriate, obviously it will be used in disputations in court.

I think the group which is working on this felt it was appropriate, as, indeed, did the Department, that the assessment of hearing handicap would be of general application, and that it would reflect the best available thinking in relation to how this issue can be addressed right across the board.

Deputy Rabbitte: Let me put the question a different way. If, as is clearly the case, it is that significant, why did it take until 1997? What was going on over the last number of years that somebody did not seem similarly inspired?

Mr. O’Dwyer: Perhaps the answer to this, if the Deputy does not object, might be addressed by Dr. Kiely also for the purposes of perspective. It is very unusual for the Department of Health and Children, for example, in the assessment of mental handicap and a whole range of other areas, to have national protocols.

In the normal course, health professionals use their expertise and whatever recommendations are current from their specialist college at the time to deal with the problem. The only other current national guideline to which I can readily point is one which addresses child sexual abuse. An infinite variety of other conditions are not covered by national protocols. We would not in the normal course have taken it upon ourselves to start the process of producing protocols for a range of conditions.

Deputy Rabbitte: When did the Department of Defence first make contact with Mr. O’Dwyer about the role he might have to play in this task?

Mr. O’Dwyer: I think the first contact was on 29 August 1997.

Deputy Rabbitte: In his correspondence, the Chairman seems to be under the impression that the decision to bring this group into existence was made in August - was it later than that?

Mr. O’Dwyer: I have replied to the Chairman in writing and our records show that it was around 29 August. There were discussions and a number of people had to be spoken to, the concept had to be clarified and the group had to be put together. That was seriously underway from November onwards and the first meeting took place on 11 December.

Deputy Rabbitte: In any event, the first meeting did not take place until after the Committee of Public Accounts had commenced its investigation, or is that purely coincidental?

Mr. O’Dwyer: It is absolutely coincidental, I must acknowledge that. Our concentration was on responding to the issue which had been raised and we proceeded with that on the basis that we were going to give it the highest priority. We have sought to involve all the appropriate experts in the work and as I said we have also made unusual arrangements with regard to the strength of the secretariat. A fully trained registrar attached to Beaumont Hospital is acting as co-secretary of the group. Given the intensity of the group’s meetings, this man’s availability has enabled them to get on with this job much more quickly than had been thought possible.

Deputy Rabbitte: Notwithstanding the dimensions of this problem, the other Department was not in touch before 29 August. Can Mr. O’Dwyer inform a committee comprised of lay persons why no work was done on the preparation of such a system before now?

Mr. O’Dwyer: If the Deputy does not mind, Dr. Kiely might more appropriately address that.

Dr. Kiely: As to relating the degree of hearing impairment to handicap, that issue would not have raised itself in the context of the services which delivered by the Department of Health and Children through the health boards and other agencies. Our emphasis would be on the diagnosis and treatment of hearing defects and hearing loss. The purpose or rationale for determining or setting out a hearing loss assessment and relating it to handicap would not have been seen to be an integral part of the service we deliver. People who come to ENT surgeons or audiologists have their hearing tested and, depending on the level of their impairment, they are treated or not depending on the individual decisions of the clinicians involved. There was never a situation integral or central to the way we delivered service which required us to have a system such as this, which will basically be used as a vehicle for litigation. It was never an issue with us previously that we would have to have such a system in place. Before this issue has raised its head, it had never been indicated to us from within the services, hospitals or the ENT fraternity that there was a requirement for this service and the Department would have seen no reason pro-actively to suggest such a requirement existed when it had never been brought to our attention by the people who deliver ENT and audiology services within the health boards and other agencies.

Deputy Rabbitte: Is that not a different way of saying the measurement system may be generally valuable, once it is agreed and judicially approved, etc., but in effect it has been inspired by the phenomenon in the Defence Forces? The Department of Health and Children is now taking the lead role because, presumably, the experts are under its aegis, but it is the circumstances in the Defence Forces which has inspired this.

Dr. Kiely: Yes, this issue was brought to our attention and a request for this initiative came from the Department of Defence. As I said, in the context of the services we provide, this would not have been seen to be a matter of the utmost priority for us in the delivery of effective health services. We are taking the lead in terms of having appointed and servicing the Group by way of secretariat. It is under the aegis of the Department of Health and Children that the work is being done and that the standard will be published at the end of the month and circulated through the health service.

Deputy Rabbitte: Do we know anything about the judicial disposition or will that have to be tested in the normal way once this committee completes its work?

Mr. O’Dwyer: I do not think we re in any position to comment on that. We hope it will have the status of a protocol or measurement system which is acceptable to and supported by the profession at large as being in line with best modern practice. After that, it will be a matter, as in the normal course of a judicial matter, for a judgment to be made on the weight to be afforded to it.

Deputy Rabbitte: It is intended to have that report by the end of February?

Mr. O’Dwyer: That is correct.

Deputy Rabbitte: In Mr. O’Dwyer’s letter to the Chairman, what did he mean in his response to the questions about the approaches from the NRB and the Department of Social, Community and Family Affairs? He said this would have a limited application in the context of a full assessment system.

Mr. O’Dwyer: I was trying to say that the social welfare system is designed for a particular purpose as regards establishing whether a person has reached a particular level of disability such as would entitle them to benefit. My understanding - Dr. Kiely may wish to comment on this - is that what will be produced by the group will be much more extensive and will be capable of underpinning a much more refined and definitive approach to the assessment of any level of handicap. That is why I made that comment but I also said in the letter that we would have to wait to see what the report said.

Deputy Rabbitte: It has been said it is envisaged that the main immediate use of this instrument will be in a litigation context but once it is agreed, and if it is judicially approved and supported by the profession, etc. - could it then be imported into the Department of Social, Community and Family Affairs as a norm which could be applied in place of the one applied heretofore?

Dr. Kiely: When the assessment document comes out, as the Secretary General said, it will be on the basis of extensive discussions and analysis by eminent people in this profession. It is likely that people who are involved in audiology, hearing aids, etc., will look closely at this document.

In view of the fact that the document is the latest up to date analysis on this situation, I imagine that people who up to now may have been using a different system, may adopt this system. People in the health services are always looking for guidance and guidelines on particularly difficult issues and this one has now assumed the proportion of great difficulty. I can imagine the Department of Social, Community and Family Affairs comparing it to the present system it has. I can imagine a number of organisations in the audiology area looking at this and probably applying it - either in its entirety or certainly relevant sections of it - to their own practice. The answer to your question is yes.

Chairman: Deputies should be mindful of the time.

Deputy Ardagh: I attended a Committee meeting morning where they discussed the euro and the pound. There is a similarity between the Department of Social, Community and Family Affairs’ guidelines and the new assessment system that is coming in. There are problems in how one deals with both of them, particularly whether you are suffering from deafness or whether you are actually judging the deafness.

What brief was given to you? What were the parameters, guidelines and criteria given to you, and the reason for setting up this group and asking you to come up with recommendations? On what basis were recommendations requested?

Mr. O’Dwyer: The brief was to produce a system of assessment of hearing handicap, which would be recommended by the Minister and by the profession as a basis on which that assessment would be done. The three main elements they are likely to address are: to draw up standards for diagnostic audiology, to look at the scientific basis behind the various international systems, and to draw on that to design a system for this country. They would probably make recommendations on improvement of current hearing test procedures. I expect that all those issues will be addressed in the report.

Deputy Ardagh: One of the catalysts for this group coming about was the present Army deafness claims. Part of the reasoning is that this system will be examined to see whether it can be taken into account when claims are being discussed. The assistant to the Attorney General, in a further letter, has stated that their acceptability by the courts depends on the intrinsic merits of the assessment system. If they are good and justifiable then the courts are likely to accept. If there are limitations or flaws, the courts will not accept them.

I wonder if it would have been wise to bring in, along with all the eminent medical personnel, people from other areas - such as social workers, teachers and the Department of Social, Community and Family Affairs - to sit in on and become part of this group and to have an input into the recommendations.

Dr. Kiely: On behalf of the Department, I was the convenor of the group’s first meeting and I met with the members. I impressed upon them the desirability, if they saw fit, of bringing on to or before the committee any person, persons or group whom they considered might be of assistance to the committee in discharging its brief. Having set up the core of the committee of experts in hearing, we gave them carte blanche to bring to their deliberations anybody or any group they might consider to be of assistance in bringing this matter to fruition, including experts from abroad, whom they did invite last weekend.

Deputy Ardagh: According to a report in today’s newspapers the potential cost of dealing with Army deafness claims has gone up to £4.5 billion. Have you brought on board people from the courts system, the Bar Council, the Incorporated Law Society or the Judiciary to see whether the way the recommendations are phrased will help and assist the Judiciary in coming to a system of assessment which is generally accepted by the medical profession and people generally?

Dr. Kiely: In setting up this group we are conscious that its recommendations need to be seen to rest on a scientific basis. This is an expert scientific group which is being asked to set up an appropriate system of hearing handicap arising from noise induced hearing loss. That is the brief the group was given. The question of what happens to this document afterwards, the use to which it is put or may be put, whether in terms of delivery of service or litigation, was not an issue for the group. We simply wanted the group to give us a scientific document, based on the latest scientific evidence available both here and abroad, setting out the assessment of hearing handicap due to hearing loss.

I believe we are right in thinking that bringing in people from the Judiciary, the Bar Council and other areas would be seen to distort the purpose of this particular enterprise, which simply had a scientific purpose in relation to hearing loss and hearing handicap. It was on that basis and that rationale that we left it as a scientific, medical, audiological group, without any input from the law, management or any other area of the public or private sectors.

Deputy Ardagh: There are times when I wonder whether it would be better, in a small country like ours, to integrate all the Departments, when necessary, to tackle a problem, particularly one of such magnitude as this. The way it appears to be done at the moment, from what Dr. Kiely said, is that the Department of Health and Children is taking a very focused, insular approach to it. It is a strictly scientific, medical approach. I am not saying the approach you are taking is wrong in any way, but I would like to see a more integrated approach in this whole matter from the Department of Justice, Equality and Law Reform, the Department of Defence, the Attorney General’s Office, the Department of Health and Children, and the Department of Education and Science. Ours is only a small country, yet we have major Departments just looking at single issues without taking into account the influence of other Departments upon them.

Mr. O’Dwyer: We are all conscious of the fact that we must act interdepartmentally in many of the things we do. There are two stages in this. First, we must try to produce a report that can be tested to destruction scientifically and which will stand up to that test. The second objective, which will come once the report is submitted to the Minister, is the question of how the report is presented and the communication exercise that must go on there. We would be positively disposed to taking an inclusive approach in relation to making explanations available to people about what the report says and what its implications are. We can take on board the point you are making.

Deputy Ardagh: Do you believe that the knowledge and expertise of the Department of Health and Children is fully utilised by the State in the defence of these hearing claims? Is there any way you feel you can assist either the Department of Defence or the Attorney General’s Office in the defence of these claims?

Mr. O’Dwyer: The Department of Defence correctly identified by far the most useful contribution we can make. We have responded to them in the way I explained. I am not aware of any other major contribution we can make. Obviously, there may be marginal things in relation to experiences we might have had in the judicial arena.

What we are addressing here is by far the most important contribution. We hope to bring it to fruition not only quickly but competently and expertly.

Deputy Ardagh: The hearing handicap assessment system is referred to generally as the green book. Why is that the case?

Dr. Kiely: Is that the one being done at present?

Deputy Ardagh: Yes. It is referred to as the green book in the letter from the Chairman. It states that the consultants group engaged in compiling the green book system of measuring hearing damage once it was established.

Dr. Kiely: I am not sure why that is the case.

Chairman: The American system was referred to colloquially as the black book so our system became known as the green book.

Dr. Kiely: When well used documents, such as the American or British ones, get into general currency, their full titles are not used. Instead they are called the black book or the red book. The Irish one became known as the green book.

Deputy Gildea: When Mr. O’Dwyer referred to the assessment document or green book, he said they were “designed for a particular purpose”. Could that be interpreted as meaning they are designed to undermine legitimate claims of Army personnel for hearing loss?

Mr. O’Dwyer: I hope I made it clear in my earlier comments that this is about producing a report which is scientifically based and which helps people to measure the extent of hearing handicap. It is essential that it fulfils that purpose. If it is used in a judicial system it is open to the same challenges as any other issue which arises in that context. Our concern is to ensure that, having put in the effort, the group is facilitated to produce a report which will be acceptable and will be seen to represent the state of the art as regards thinking on this matter. That is our purpose in this regard.

Deputy Foley: The first meeting of the expert group was on 11 December. How many meetings have been held since then?

Mr. O’Dwyer: I am not able to answer that but the pattern has been to meet at least every weekend. My information, which I have given to the Committee, is more concerned with when the meetings will finish.

Deputy Foley: Is Mr. O’Dwyer positive he will have a report by the end of February?

Mr. O’Dwyer: Yes.

Deputy Doherty: There are eminent people on that group but I notice that people from outside the State but within the EU are not included in its list of members. In view of the fact that the EU guidelines are more liberal than those being practised by the Department of Social, Community and Family Affairs and that in assessing hearing handicap it is essential to have the widest possible input, why have such people not been included given that there is a dispute among Army personnel about whether national or EU criteria should be used?

Mr. O’Dwyer: I ask Dr. Kiely to respond to the Deputy’s questions.

Dr. Kiely: In terms of the membership of the group, our immediate concern was to get as many Irish experts together as possible, give them this task and then leave it completely open to them to bring to the deliberations of the committee whatever was required in terms of outside expertise. As far as I understand, they have not requested co-options from any other EU or international countries. I know from the secretariat that they have considered hearing handicap assessments used in the UK, United States, South Africa, Finland, Denmark and Canada, among others. No later than last weekend they had one expert from Canada, Professor Peter Alberti, and two experts from the UK to help them in their deliberations. The deliberations of this committee are not circumscribed by the membership of the group but they have brought to the group wide literary and personal experience from other countries.

Deputy Doherty: In the Secretary’s report to the Chairman he anticipated that it would become an acknowledged standard as a basis for best practice by professionals. If it is inconclusive because of the absence of input, having regard to what has been decided in Europe under a EU directive, surely it is vital to have that input at this stage?

Dr. Kiely: I do not have anything further to add to the answer.

Chairman: I presume the expert group will take full cognisance of the noise regulations under the European Union directive.

Mr. O’Dwyer: That is axiomatic. I take on board all the points made.

Chairman: Perhaps you could tell me the members of the expert group.

Mr. O’Dwyer: It is chaired by Dr. Orlaith O’Reilly who is the director of public health in the South Eastern Health Board. Its members are Mr. Vivian Kelly, consultant ENT surgeon in Beaumont Hospital, Mr. Donal McShane, consultant ENT surgeon in the Adelaide Hospital, Mr. Gary Norman, an audiological scientist in Beaumont Hospital, Professor Michael Walsh, a consultant ENT surgeon in Beaumont Hospital, Dr. Dan Murphy, director of the occupational health services in the Health and Safety Authority and Mr. Peter Gormley, consultant ENT surgeon at UCHG. The medical secretary is Mr. Stephen Hone, who is a senior registrar in ENT at Beaumont Hospital. The secretary of the group is Mr. Brian McGovern from the Department of Health and Children.

Chairman: There are eight members of the committee including the secretary.

Dr. Kiely: On or two other eminent people in the area were requested to attend. Although they assented initially, they were unable to do so due to commitments.

Chairman: Was the Department of Health and Children involved in any interdepartmental group which examined the State’s defence of the Army compensation claims?

Mr. O’Dwyer: No.

Chairman: The request to set up this group before the end of August does not seem to have been pursued with any urgency given that it did not meet until 11 December, three and a half months later. Is there an explanation for that delay?

Mr. O’Dwyer: I got a response on this from Dr. Kiely on 3 September. We met the Department of Defence in the second week in September and we looked at the options around 12 September. Then we had discussions with the Health and Safety Authority. We also had consultations with Mr. Vivian Kelly from the ENT department at Beaumont Hospital between 16 and 24 September. A memo was prepared for the Government on a number of issues including the establishment of the group around the end of September. We contributed to that memo which was submitted to the Government by the Department of Defence.

Effectively, the decision in principle to go ahead with the group was agreed in October. The formal Government decision covering this and a number of other issues came in November. We had already addressed the issue and were in the process of getting the membership lined up and finalising the secretarial arrangements. Once it was raised with us it was constantly on the agenda. It was not subject to any delay between that time and the time it went forward.

When we were first confronted with this, we knew it had taken a great deal of time in other countries to come up with a system. We were seeking to do this as quickly as we could. We started on the basis that we would not manage it within six months. We are going to complete the work by the end of February.

Chairman: I thank Mr. O’Dwyer and Dr. Kiely for coming before the committee.

The witnesses withdrew.

Chairman: I welcome Mr. James Hamilton, senior legal assistant in the Office of the Attorney General. Who are you accompanied by?

Mr. James Hamilton, senior legal assistant in the Office of the Attorney General, called and examined.

Mr. Hamilton: Mr. Richard Barrett from my office and Mr. Brendan Counihan from the Office of the Chief State Solicitor.

Chairman: I welcome Mr. Tim Dalton, Secretary General of the Department of Justice, Equality and Law Reform. Would you like to introduce your officials to the committee?

Mr. Tim Dalton, Secretary General of the Department of Justice, Equality and Law Reform, called and examined.

Mr. Dalton: Mr. Bob Brown, Assistant Secretary of the Department and Mr. Tom Lynch, principal officer on the civil law reform side.

Chairman: We have exchanged correspondence with both delegations on this matter.

Deputy Rabbitte: I understand from Mr. Hamilton’s correspondence that he feels that the client-lawyer relationship precludes him from certain areas of inquiry. Does he wish to comment on that?

Mr. Hamilton: I do not wish to be unhelpful to the committee but there are a large number of issues which are policy questions for the Department. From time to time it would consult us in the course of formulating that policy. It would be wrong to draw me into that debate when the Department could answer that question and explain why particular policies are adopted. It is difficult to draw a line between comment, in an effort to be helpful, and indicating what matters have been discussed.

There is a further problem. Where one is considering possible options for dealing with these cases, there are always going to be questions which it could be sensitive to discuss in public as it might be of assistance to plaintiffs, or not wishing to reveal strategies which might be adopted in advance.

Chairman: Questions will not be allowed on individual cases or which might impinge on the client-lawyer relationship. We are concerned about the general administration, efficiency, effectiveness and the appropriateness of the arrangements in the Offices of the Attorney General and the Chief State Solicitor.

Mr. Hamilton: I have no difficulty with that. It is a matter for the committee.

Deputy Rabbitte: Will Mr. Hamilton describe the arrangements in place within the Offices of the Attorney General and the Chief State Solicitor in respect of processing these claims? Will he give the committee an indication of the number of staff and costs involved in a given financial year?

Mr. Hamilton: There is a separate section in the Chief State Solicitor’s office which is handling these claims employing 32 staff. They comprise one principal solicitor who is in charge of the operation and who is a permanent member of the Chief State Solicitor’s staff. In addition, there are 14 solicitors hired on short term contracts. We have sanction for another five on the same basis. There are three temporary law clerks. In addition, there is a staff officer, 12 clerical officers and a services attendant who are full time public servants.

Chairman: Would you repeat that slowly so we can get the numbers of staff involved?

Mr. Hamilton: The total number is 32.

Chairman: Hired specifically for this purpose?

Mr. Hamilton: No. Seventeen of them - 14 assistant solicitors and three law clerks are short term contract workers hired specifically for this purpose. I think they are all on one year contracts. They can be released if the number of cases drops off and there is no longer a need for their services. The other staff are full time civil servants seconded from the office. Essentially, they are the clerical support for the exercise.

Deputy Rabbitte: Is it correct that additional resources have been sought and granted?

Mr. Hamilton: We were recently offered another five solicitors and three clerical assistants. The direct salary costs of the staff last year was, approximately, £530,000.

Deputy Rabbitte: Is there anything remotely similar to this experience in the history of the office?

Mr. Hamilton: Not that I can think of. Certainly not on this scale.

Deputy Rabbitte: There is no point in asking if it is customary. Is it prudent that strategy and processing seems to be handled exclusively from the Chief State Solicitor’s office? What is the input of the Attorney General’s office.

Mr. Hamilton: The input of the Attorney General’s office is in policy advice to the Department and dealing with cases where an unusual issue arises. For example, a novel question relating to the Statute of Limitations or a case involving unusual special damage or something of that sort. My understanding is that there are very few such cases. In reality, our involvement is on strategy advice, legal options and so on. Traditionally, the office would have had a more direct input into the approving of settlements, reading files and watching the work done by the solicitors. Given that these cases are so much of a pattern, it seemed that there was little added value to be obtained by having the barristers in the Attorney General’s office essentially duplicating work taking place in the Chief State Solicitor’s office. We have taken steps to cut them out of the loop almost entirely. If we had not done so we would have had to take on a number of extra staff in the barristers section - the advisory section of the office. That would have delayed matters and would not have served any useful purpose.

The decision on whether to settle or not in particular cases, as in all cases, is a matter for the Department. We can offer advice as to the likely level of an award if a case goes to a hearing, whether is it tactically useful to make a settlement or whether there are savings in costs. However, the actual decision rests with the Department. In any case in court, there will be advice as to the value of the claim and the liability issue from a barrister hired by the State and the solicitor working on the case. At this stage, because they are all working as part of an army deafness unit, they are all experts on this subject. They do nothing else. Two lawyers and a number of officials from the Department of Defence are in court every day. The officials from the Department make the final decision on whether to settle a case or how much to offer.

Deputy Rabbitte: With regard to the hiring of lawyers, will you explain how retainers are distributed by the Office of the Attorney General?

Mr. Hamilton: Under the Prosecution of Offences Act, 1974, the Attorney General has an obligation to effectively ensure a fair distribution among the Bar taking one year with another and having regard to suitability for specific cases and to the public interest. As a result, it would not be appropriate to have a tiny number of lawyers do all the cases, apart from the fact that it would represent a substantial bonanza for those who would be favoured with that kind of treatment.

The Attorney General has, therefore, established a panel of lawyers. The intention is that they would get 50 cases each. I may have said in my letter that it would be 50 cases at any one time but the intention was a maximum of 50 cases. In fact, there have been so many cases-----

Deputy Rabbitte: Fifty by 71 does not-----

Mr. Hamilton: I know. For some people on the panel the number of cases has exceeded 50. As a result the matter is being reviewed again. I do not know what the outcome will be. Seventy-one may sound like many lawyers, but in terms of the number of cases it is not. There are now three times as many cases.

Deputy Rabbitte: In the context of the unique situation we are dealing with, is that system consistent with the State’s representation being sufficiently briefed and having acquired the necessary expertise to combat the expertise which I understand has been garnered on the other side?

Mr. Hamilton: We believe so. The counsel who have acted for us have all been given extensive written briefing material on the matter. A seminar was organised three or four months ago in which the Attorney General participated along with various ENT specialists and most of the barristers on the panel. That was followed by a question and answer session and a full briefing. If appropriate, that type of exercise may be repeated. In addition, counsel are briefed with whatever necessary information there is in individual cases. Our view is that anybody on the panel and getting work at this stage has a level of expertise. If we were to encounter people in respect of whom we did not feel satisfied they would not be further instructed.

Deputy Rabbitte: What about the setting of fees? Who is involved in that and is the repetitive factor, which you have mentioned, taken into account?

Mr. Hamilton: It is. The Attorney General has negotiated a scale which is a lower rate - I believe it is approximately 20 per cent lower - than what would normally paid in a personal injury claim to allow for the fact that-----

Deputy Rabbitte: What is it approximately in euros or pounds?

Mr. Hamilton: I would have to look at a scale which I do not have before me. If we take the average case - most of them are below £40,000 - and if one senior is briefed he would be paid a fee of £500. A junior acting alone would be paid the same. The scale increase to a much higher amount, but the average level of claim at this stage is approximately £20,000. In the case of the large awards, say £80,000, which would be very unusual, the fee would be £1,000 for a senior and less than £800 for a junior.

Deputy Rabbitte: Have you any kind of yardstick in terms of the total legal costs, including the costs for expert witnesses?

Chairman: With regard to the figures you have indicated for fees, are they for the case or per day?

Mr. Hamilton: That is the fee the State would pay its own barrister.

Chairman: For the case?

Mr. Hamilton: Yes.

Chairman: For the entire case?

Mr. Hamilton: For the hearing on the day. In addition, the junior counsel would be paid fees for various pleadings, for example, settling notices for particulars, drafting defences, motions for discovery and various other things that may happen at the pre-trial phase. There is a scale of fees for those also.

Chairman: The fee of, say, £500 applies just to the hearing. Is that correct?

Mr. Hamilton: Yes. The other fees that may be payable in a case depends on the level of pre-trial activity.

Chairman: What would be the State’s overall legal costs in a typical case, if there is such.

Mr. Hamilton: It usually would not involve much more than the brief fee in respect of a senior counsel. There would probably be a consultation in advance and he would have advised proofs. The fee there would vary between £80 and £100 while a pre-trial consultation is £50, which is much less than the going rate. The junior would probably have more paper work. Basically, the junior will do the settling of a defence, which is £60 and various other things. Much would depend on the number of motions, etc., which might have taken place. The total fee for that kind of pre-trial work may amount to £300 to £400.

Deputy Rabbitte: While there is no such a thing as a typical case what is the kind of duration in court and how many would be dealt with in a day?

Mr. Hamilton: I wish to provide you with other figures before addressing that aspect because I also have figures for the type of costs which we have to pay plaintiffs when they are successful. The average total cost is working out at approximately £9,000. That can depend on the level of award and it would involve the plaintiff’s legal costs in respect of counsel, solicitor and various witnesses.

Chairman: Would that include medical costs?

Mr. Hamilton: It would include medical costs and so on - everything he is entitled to tax. It would also include VAT and would be the total bill from the other side after taxation, or would be agreed with them in the absence of taxation. It is an average for all claims. It would vary. For example, with regard to a small claim in the region of, say, £5,000 the costs would be pro rata somewhat higher, and would be nearly as high as the claim itself. By contrast for much higher claims, the costs would not be as high as 25 per cent.

Chairman: There are fixed costs.

Mr. Hamilton: Yes. It is not a straightforward percentage but it is related to the value of the claim. In addition to paying its counsel, there are various State’s costs that are not so apparent, but the solicitors’ costs are part of the working of the office, as I have already mentioned. Last year, the wages bill was £530,000. In addition, allowances must be made for the cost of maintaining premises.

Chairman: Rent, heat and light, etc.

Mr. Hamilton: That is perhaps a slightly unreal figure in the context of these figures.

Deputy Rabbitte: What about the percentage that goes on costs as distinct from the award to the plaintiff?

Mr. Hamilton: We have estimated that roughly between 25 and 30 per cent of the total figure paid out would be costs to the plaintiff. I understand that we would then have to add in our own costs. The figures provided to me by the Department of Defence indicate that in 1996, for example, there were 136 case, the total awards amounted to just over £4 million and the costs were just over £1,220,000 on 127 cases, so most of them were in at that stage. It worked out at approximately 25 per cent. In the previous year it was 31 per cent. The costs have not yet been dealt with in many of the 1997 cases. It is at 14 per cent at present, but that is because costs have only been paid in about 40 per cent of cases.

Deputy Rabbitte: Without dragging you into the area of policy, do you wish to take the opportunity to say something to the Committee about whether there is any course open to the State that could process this phenomenon at a lesser cost?

Mr. Hamilton: There may be a number of options in this regard. Without effecting any change in the law, there is always the option of trying to settle cases earlier which would reduce legal costs. The drawback there is that one may actually end up increasing the amount paid in awards. There is obviously a logic to fighting more cases until one is certain one has arrived at a tariff one knows to be appropriate. If one can achieve a standard whereby one knows that a particular level of hearing handicap is worth a certain amount, it becomes much easier to settle cases at an earlier stage thereby avoiding payment of legal costs. There are reasons, which I am sure the representatives of the Department of Defence will explain, why, until such time as one knows what level cases will settle at, one might not want to go down that route.

There are obviously problems involved if one wants to legislate in accordance with the Constitution. If there is a problem in that regard, there may finally be an option of constitutional amendment if one finds an obstacle to what one wants to achieve. I do not think I should be any more specific than that as it is really for the Government, the Department and the Legislature to formulate the policy they wish to adopt and then seek legal advice as to whether or, how, it can be achieved.

Deputy Rabbitte: Once the hearing handicap assessment standard is agreed, at least among the professionals, what happens at that stage? Is a submission made to the courts informing them that such a standard has been agreed and will it quickly become apparent if the Judiciary is satisfied on the merits, fairness and objectivity of that standard?

Mr. Hamilton: That is the way one would hope to approach the matter. I was listening to the evidence given by the previous witness and the questions asked of him. There are very good reasons why our office and the Department of Defence are not involved in this sort of exercise. It is very important that an exercise for establishing an assessment system should be as objective as possible. If I, somebody else from my office or some defendants in this case, were sitting on the committee, I do not think an assessment system would have much credibility before the courts. It would simply be seen as an attempt to undermine the legitimate claims being made.

Deputy Rabbitte: Are you saying that, assuming this would be approved by the Judiciary, you could envisage a situation where the legal costs could be diminished?

Mr. Hamilton: That is possible. There is a further matter involved; if an assessment method is arrived at which works out a way of putting a value on the seriousness of different levels of handicap, one must then make a link as to how much money each of those levels are worth. If the courts do not arrive at a level which the State considers appropriate or reasonable, one must start to consider the other available options at that stage. That is premature until such time as one has worked out a system of assessment and seen what value the courts put on it.

The courts must assess people’s claims in a fair manner. We may all think that, in some of the earlier cases, some of the courts did not get it right but we have gained a lot of experience and we must settle down now and see what emerges. In two or three months, we will have a much clearer picture of events when we have an assessment system in place. Then we will attempt to persuade the courts that the standards set are reasonable and attempt to get them to assess damages which we consider to be reasonable. If that does not happen, other options will have to be considered.

Deputy Rabbitte: I have a question for the Accounting Officer of the Department of Justice, Equality and Law Reform. Does the Chairman wish me to ask it at this stage?

Chairman: Yes.

Deputy Rabbitte: Reference is made in Mr. Dalton’s correspondence to the personal injuries tribunal where liability would not be contested yet which would be within the wider remit of the courts system. Could that provide an alternate system in many cases and is that being considered?

Mr. Dalton: I understand it is one of the issues being considered. Although it could provide an alternative system, I do not think one could force people into an alternative to the courts. Such a tribunal would save legal costs and that is where its merits would lie. Unless the awards being made approximated to the awards made in court, I do not think people could be obliged to use such a system. That is my understanding of the position.

Deputy Rabbitte: I understand the initiative was taken in the first place not to achieve a diminution of awards but to save on legal and other expert fees.

Mr. Dalton: In principle, it should have that effect.

Deputy Rabbitte: Do we know how the tribunal stands at the moment?

Mr. Dalton: We understand the Department of Defence is considering proposals in that regard although I do not know exactly how matters stand. A report in which proposals for a tribunal system as an alternative to the courts were being considered in another context, with which Deputy Rabbitte had an involvement, is also available in the Department of Enterprise and Employment. My understanding is that the committee which dealt with that issue is being reconstituted to bring this proposal forward. Beyond that, I do not have any detailed information on the matter. The Department concerned would probably be best placed to say how the tribunal stands.

Deputy Rabbitte: On the issue of advertising, has the Department concluded that the manner in which some solicitors are advertising is fuelling the phenomenon under examination?

Mr. Dalton: I cannot say that this kind of advertising is proving problematic in any specific case. It is a widely held view that the manner in which some solicitors are advertising is objectionable and that the ethics involved are open to query. We are in discussion with the Law Society about that issue but I am not in a position to say what the result of those discussions will be. However, I believe there will be some adjustment in the law which deals with solicitors’ advertising in order to deal with a minority who are believed to be abusing the advertising freedom that solicitors now enjoy.

Deputy Rabbitte: I do want to push the Secretary on this issue but when he says “some adjustment” does he mean the law on this will be changed or not?

Mr. Dalton: I am not in a position to say exactly what will happen at this stage. I believe some amendment to the law is likely but it will be for the Government to decide on the policy involved.

Deputy Rabbitte: On the 1991 Act which dealt with the change in respect of the three year rule on the Statute of Limitations, RACO made the point yesterday that it was an unfortunate conjuncture of events for the State that that decision coincided with developments in the Defence Forces. What was the motivation for changing that particular measure?

Mr. Dalton: The change was based on a belief that considerable injustices existed as things stood in so far as a person could have had an injury for years but not have been aware of it. For example, a badly carried out surgical procedure might not necessarily produce injury for several years but might then produce a very severe injury. The three year limitation period resulted in injustices in that a person in that situation could not take an action against a doctor. The hepatitis C situation would be entirely different if a three year rule applied in that most of the women, who have undoubtedly been very seriously injured, would probably be deprived of any cause of action.

Deputy Rabbitte: A good deal turns on the definition of “significant” in the British Act. Is there a rationale as to why that was excluded in the Irish case?

Mr. Dalton: There is. It has been criticised, as I mentioned in the replies which I sent, on the basis that, if liability were not in dispute and the money were there for the asking, what injury would not be sufficiently serious to make a claim for compensation worthwhile? It turned on what was meant by the word “significant”. In the English Act a significant injury was defined as one which the plaintiff would reasonably have considered sufficiently serious to justify his instructing legal proceedings for damages against the defendant who did not dispute liability and who was able to satisfy a judgment. The criticism is that nobody would fail to take an action if the money was there and liability was not in dispute. The advice of the Law Reform Commission was that we should not provide a definition of “significant”.

Mr. Rabbitte: What is the thinking on it now as a result of the current situation? Is it being reconsidered by the Department? Is there any work taking place in the Law Reform Commission in this area?

Mr. Dalton: No, there is not.

Deputy Ardagh: Due to the shortage of ENT consultants, is there is a possible conflict of interest in that many consultants are acting for claimants as well as for the State? Mr. Hamilton suggested in his reply to the committee that any legal counsel who acts for claimants would not be hired to act for the State in deafness cases. Is there a possible conflict of interest for ENT consultants in these deafness cases?

Mr. Hamilton: I think the consultants will approach the cases on a case by case basis. However, some consultants have a particular view on which types of impairment are significant and which are not. As a result, there are one or two consultants who appear regularly for the State who would be unlikely to be instructed by plaintiffs because their views might not accord with a maximisation of damages. The opposite is also true.

However, if a consultant were to appear in court one day to say the tests carried out at 8,000 hertz were extremely significant and then say the next day that nothing over 2,000 hertz matters he would not have any credibility. Their general view will not vary from case to case but it is true that different consultants will have different views on the significance of impairment. One must trust that as responsible, professional people they will make an honest assessment of any case before them.

Due to the sort of principle we were trying to tease out, we have preferred to brief counsel with whom we could discuss everything openly rather than finding them appearing on the other side the next day and, perhaps, taking advantage of weaknesses in our position which might have been exposed to them in that capacity. The position of the medical consultants is probably somewhat different.

Deputy Ardagh: It would be interesting to hear from Dr. Kiely again because he said at least two consultants had agreed to join the expert group but then found that, due to commitments, they were unable to so do. I know Mr. Hamilton is not in a position to answer this question, but it would be interesting to know whether they have acted for the State or claimants in that regard.

Mr. Hamilton stated the establishment of a State claims manager is a matter for the Department of Finance. Will he outline the functions of a State claims manager?

Mr. Hamilton: That was in the context of a State claims manager to handle all claims brought against the State. The idea is to have a person or persons who would carry out a range of functions analogous to those carried out by an insurance company and would bring a commercial, rather than a legal, approach to bear on decisions on the settling of cases. Obviously, lawyers can look at matters in a way which does not always accord with the commercial decisions made by an insurance company.

The decision was made to hire a claims manager for the Army deafness claims, which has been done. However, it will be some time before he can make a useful input because the Department is still reluctant to settle claims at an early stage until the level of claims settles down. At the moment the person who has been engaged is actively learning about the process and establishing himself.

Deputy Ardagh: Is he in the Attorney General’s Office?

Mr. Hamilton: He is with the Chief State Solicitor’s Office.

Deputy Ardagh: Which is responsible to-----

Mr. Hamilton: Which is part of the Attorney General’s Office. He has only just been engaged. The post was advertised a considerable time ago but the process of filling it through the Civil Service Commission was very slow.

Deputy Ardagh: It comes down again to getting funding from the Department of Finance for staff.

Mr. Hamilton: Yes.

Deputy Ardagh: Has the Department of Finance given full funding at all times to the Department of Justice, Equality and Law Reform, the Department of Defence and the Attorney General’s Office for staff required to deal with the situation?

Mr. P. Howard: Obviously, the sheer volume of these deafness claims must put severe strain on staffing resources. We, in the Department of Finance, must recognise and deal with that and, to the greatest extent possible, provide additional resources as required from time to time.

Deputy Ardagh: Have all the requests in this regard for additional staff from the Departments I mentioned and the Attorney General’s Office been acceded to?

Mr P. Howard: It is very much an ongoing business. There has been a view that these claims must peak and recede but that has not happened so far; it might happen next week or in six months’ time. It may be the case that, although additional resources have been provided to the Department of Defence and the law offices, more might be required later.

Deputy Ardagh: In regard to the question of peaking, when the Secretary General of the Department of Defence appeared before the committee in November he suggested the claims were arriving at the rate of 100 per week. Has the level increased or decreased since then? Is there evidence of any peaking?

Mr. O’Callaghan: They are arriving at the rate of 150 a week now, about 600 every month. There is no evidence they are tapering off or peaking. The line on the graph is still rising.

Deputy Ardagh: Inexorably.

Mr. O’Callaghan: Yes.

Deputy Ardagh: Therefore, it appears there will be a greater requirement for more staff to ensure these claims are handled expeditiously. As Mr. Hamilton said, the faster the claims are acted on the lower the cost to the State under normal circumstances. Is there a reluctance at the moment to fund staff? Is the Department waiting for a peak?

Mr. P. Howard: No. In mid-1997 the number of claims was roughly 7,500 and people said they must peak at some time. What has happened in the intervening six or seven months is that the number has shot up to 12,000, so it has not peaked yet. When it peaks and begins to decrease we hope the demand for extra staffing resources will reflect that.

Deputy Ardagh: True.

Mr. P. Howard: However, we obviously cannot predict when that will happen.

Deputy Ardagh: Can I ask the Secretaries General of the Department of Defence and of the Department of Justice, Equality and Law Reform whether a request has been submitted for funding for more staff.

Mr. O’Callaghan: Yes, we are looking for additional staffing resources of over 20 to deal with this matter and to carry out further research on it as well as preparing for other options and initiatives in future. I believe it is being actively considered at the moment by the Department of Finance and we expect a response shortly.

Deputy Ardagh: When did the Department initially request these people?

Mr. O’Callaghan: We initially sought additional staff around late summer of last year. A memorandum on this went to Government in November. We received a response, considered it and went back to the Department of Finance. We are seeking more than we originally sought in the summer because of the growth in the volume of cases. That is being actively considered and we expect a positive response.

Deputy Ardagh: Does Mr. O’Callaghan believe there will be a significant benefit to the State by hiring these people and having them work rather than not having them work? Is the benefit to come on the basis of claims being dealt with more promptly and expeditiously?

Mr. O’Callaghan: There will be a benefit to the State. At the moment there are 24 staff costing about £400,000. If we get another 20, the additional cost will be something similar. As regards the volumes of cases, if the cases can be prepared and researched better and earlier and can be discussed with the Chief State Solicitor, we believe the additional staff will pay for themselves several times over. There is no question about that.

Chairman: Did Mr. O’Callaghan say that 24 staff are working on claims at the moment and that he is seeking 20 more, which is almost a doubling of the staff?

Mr. O’Callaghan: Yes, it must be taken into account that we are overstretched at the moment. The Circuit Court in Limerick was very busy last week with about 40 cases. We did not have one spare official to send down there to advise the Chief State Solicitor. We did it all on the phone from Dublin. The people I have at the moment are doing an excellent job and they have acquired a wealth of expertise in this specific area. However, we also have to prepare for the next round. If we can get the Irish system - the green book system - accepted and reduce the quantum, we are looking at an early settlement policy. At that stage, we would have to deal with cases much more quickly than they are being dealt with at the moment.

Chairman: How many cases did you have in Limerick Circuit Court?

Mr. O’Callaghan: Forty three.

Chairman: There was no one there to instruct?

Mr. O’Callaghan: It was done on the phone. We had a successful week in Limerick, but we had an excellent solicitor from the Chief State Solicitor’s Office.

Chairman: This tallies with complaints I have heard from barristers and solicitors at the courts that briefing from the State can sometimes be very inadequate and very late.

Mr. O’Callaghan: The reason for that is we are not receiving ENT reports or audiograms in time. It has nothing to do with the lack of officials. The State has booked up all ENT specialists’ time until the end of April this year.

Chairman: How many ENT specialists are involved?

Mr. O’Callaghan: There are about 18 in the country. Any of them willing to take on this work are booked up until the end of April.

Chairman: Does that mean the seeking of adjournment of cases in the court?

Mr. O’Callaghan: No, we have not yet failed to produce a defence.

Chairman: That is a separate question. The staffing issue is rather alarming and I would certainly make a point to the Department of Finance that it ought to be examined quickly. Perhaps we will ask the Secretary General of that Department about it when he is here tomorrow.

I want to return to the issue of the senior legal assistant and the costs. Mr. Hamilton can state that the average plaintiffs’ costs for each case, including medical and other witnesses, was £9,000. Can he give me an aggregate average figure for the costs on the State side?

Mr. Hamilton: Outlay for counsel’s fees are about £1,000 per case. Added to that are doctor’s fees to which I will return in a moment. As regards the Chief Solicitor’s Office, we did a costing of the extra ones, but based on assumptions about which one cannot be entirely certain, we worked it out at the rate of £500 per case. Taking into account various capital costs, it may be higher. I do not pretend it is a scientific exercise.

Chairman: What about medical costs?

Mr. Hamilton: We believe the medical costs are in the region of £500 per case, so we are talking about a total of approximately £2,000. Adding in other costs which are, perhaps, not so visible, it would be not more than about £3,000.

Chairman: This is at odds with what we have been told previously. I would like to cross-check. Would the Secretary General of the Department of Defence tell us what he understands the costs to be?

Mr. O’Callaghan: I agree with Mr. Hamilton’s figure of £9,000 for the plaintiffs’ costs, but we have been working on a figure for the State of £6,000.

Chairman: Of what is that made up?

Mr. O’Callaghan: It is made up of the legal costs Mr. Hamilton has just mentioned, plus the medical and other expert witnesses we must call, plus the staffing and administrative costs of the Chief State Solicitor, the Attorney General’s Office and the Department of Defence, including the military authorities. It is a huge undertaking.

Mr. Hamilton: I did not include those for obvious reasons.

Chairman: I can see there are additional things you did not include.

Mr. Hamilton: I could probably have done something more sophisticated had I had notice of the question. Perhaps if I correspond, I might be able to-----

Chairman: I thought you would have anticipated that question.

In a letter to me from the Secretary General of the Department of Justice, Equality and Law Reform and in further correspondence, we discussed the question of the law relating to solicitors’ practices. Am I correct in saying that the Solicitors (Amendment) Act forbids the Incorporated Law Society from banning advertising?

Mr. Dalton: Yes, they cannot ban advertising, but there are grounds upon which solicitors may be challenged. The Act empowers the Law Society to make regulations relating to professional practice. The society may not prohibit solicitors from charging less for a service than any fee specified for it, and it may not in general prohibit advertising by solicitors except in the case of advertising which is likely to bring the profession into disrepute, is in bad taste or reflects unfavourably on other solicitors. One question is whether some of this advertising brings the profession into disrepute. That is an issue we are examining.

Chairman: Who would judge whether something brings the profession into disrepute or whether practice is in bad taste?

Mr. Dalton: It is regulated by regulations made under the Act. The decision is made by the Society itself.

Chairman: Under the Act, the Incorporated Law Society is empowered to make regulations governing the question of advertising and standards.

Mr. Dalton: Yes. I have the regulations.

Chairman: Do they include ethical considerations? Regulations have been made under the Act.

Mr. Dalton: That is correct.

Chairman: Those regulations have the force of law, so a breach of regulations would be a breach of law.

Mr. Dalton: Yes.

Chairman: What are the main provisions of the regulations?

Mr. Dalton: As I said, an advertisement shall not bring the solicitors’ profession into disrepute, be in bad taste, etc. The form of the advertisement is regulated. It cannot be contrary to public policy, misleading or include unsolicited approaches to any person with a view to obtaining instructions in any legal matter, a point which would be highly relevant to this Committee.

It is the responsibility of the solicitor to ensure that any advertisement issued by him or with his authority complies with the programme’s provisions without prejudice to the generality of section 3. The Regulations provide that any breach of the regulations, upon due inquiry by the tribunal, pursuant to section 7, found to be misconduct within the meaning of section 3 as amended by section 7, will be penalised. The solicitor is required to furnish the Law Society with a copy of an advertisement issued within a twelve month period. Breaches of the regulations may be investigated by the tribunal.

Section 17 gives the tribunal power, where it has found a solicitor guilty of misconduct, to advise, admonish or censure the solicitor and to order him or her to pay a sum not exceeding £5,000 to the compensation fund.

Chairman: Do you know of any cases taken against solicitors?

Mr. Dalton: I would not know off hand, but the Law Society could give details of this.

Chairman: We are speaking of Statutory Instrument 351/1996. Is that correct?

Mr. Dalton: Yes.

Chairman: The advertising regulations were made by the Law Society. You have quoted a part of the regulations referring to a solicitor’s advertisement being in bad taste. Unsolicited approaches to any person with a view to obtaining instructions in any legal matter are also mentioned. Would unsolicited mail shots be embraced by that section?

Mr. Dalton: It would fall to the tribunal to interpret whether an incident was a breach or not. It is difficult to say, though the regulation seems clear. One would probably have to establish if a legal matter was bothering someone who received the advertisements and establish also that they were targeted.

Chairman: Are sending unsolicited mail or canvassing hospital rooms, army barracks or pubs in breach of the regulations?

Mr. Dalton: One would have to take the individual case. It might be covered by other regulations; for example, it might be in bad taste to canvass in hospitals, depending generally on the circumstances. I am not so sure that sending a letter to say that one is available to provide services as a solicitor would be a breach of the regulations. The Attorney General’s office might have an opinion on that.

Chairman: If the advertisement said “Army deafness. Sue before it is too late.” would it be in breach of the regulations?

Mr. Dalton: It would depend on the personal assessment of somebody on the disciplinary tribunal. Many people on the tribunal might think it in breach of the regulations given what we know of army deafness claims.

Chairman: Does your Department have any role in overseeing the solicitors’ profession?

Mr. Dalton: No. It is left to the profession.

Chairman: It is self policing. The Attorney General has a role in relation to the public interest other than its role in advising Government Departments. Is there any separate consideration?

Mr. Hamilton: I do not think so. The Attorney General must have regard to the public interest in how he decides to defend cases, but I do not think there would be conflict in advising Departments. One matter is to minimise the cost to the State, and the other is to ensure people get fair compensation in the courts. Matters such as the independence of the judiciary arise also. Apart from that general consideration, I do not think so.

Chairman: You mentioned earlier that in briefing counsel and staff you arranged for them to get professional advice from E & T consultants on the hearing issue. Is that sort of advice ever sought by or available to the courts or would that be for the courts to decide?

Mr. Hamilton: We would have a specialist E & T doctor to give evidence--

Chairman: For the plaintiff or the defendant.

Mr. Hamilton: Exactly.

Chairman: Is professional advice on a technical issue not normally dealt with available to the courts?

Mr. Hamilton: It would be for the judges to decide whether they want to train or brief their members on something arising in the courts. It is a sensitive issue for the judiciary and we would not see it as our role to suggest to judges how they should train their members.

Deputy Gildea: Do solicitors who are employed by the State have to provide documentary evidence that their tax affairs are in order before being so employed?

Mr. Hamilton: We do not.

Deputy C. Lenihan: We thought that was standard practice in relation to barristers.

Chairman: Does the question relate to barristers or solicitors?

Deputy Gildea: Both.

Chairman: The solicitors are all on your staff?

Mr. Hamilton: Yes. They are PAYE workers.

Chairman: Do you seek tax clearance certificates from barristers serving the State?

Mr. Hamilton: No. That is not the practice.

Chairman: The Committee has raised this matter before.

Deputy C. Lenihan: The Chairman raised this with the Chief State Solicitor’s office. I am surprised that that office and the Attorney General’s office do not require this.

Chairman: We have asked the Department of Finance to make sure this happens.

Deputy C. Lenihan: That was several weeks ago, and nothing seems to have been done since.

Chairman: We should not be diverted, but I would like a note from the senior legal assistant and the Department of Finance within a month on why tax clearance certificates are not sought from barristers representing the State.

Deputy Doherty: Would there be a problem with legal costs?

Chairman: If there are other issues we can raise them.

Deputy Doherty: The garda forces are similar in number to the Army, with both having over 11,000 members. The garda are given small arms and machine gun training. Is that training comparable to the Army’s training?

Mr. Dalton: I do not think it is comparable. I mentioned on my last visit to this Committee that we have had deafness claims from gardaí as well, but there are only 43 such claims.

Deputy Doherty: How do these compare with the claims now being made my members of the Army? What level of decibel loss are they reporting?

Mr. Dalton: I do not know what level of decibel loss they are reporting. Six cases have been settled. One case was not associated with fire arms but rather with injuries sustained when detonating mortars found in a dump. All the claims relating to the Garda are pre 1983. No claim could be validly made subsequent to 1983 because of changes made at that time. Settlements of £16,000, £40,000, £37,500, £40,000, £35,000 and £30,000 have been made so far.

Deputy Doherty: Has the Law Reform Commission any function that could be advisably exercised in examining and reporting in the usual manner in the context of these extraordinary and ever increasing claims?

Mr. Hamilton: I do not think so at present. This is not to say the commission may not do so at some point if some specifically legal question arises. Most of the current problems are of a practical nature relating to the manner in which the multiplicity of claims should be handled. The commission may have a role if one were to examine the possibility of changing the law or the Constitution. The only difficulty is the timescale in which one might want to make any change. The Law Reform Commission carries out indepth examination of issues which of necessity takes time. At present I see no scope for referring any questions to it relating to this matter.

Deputy Doherty: We know the decibel level which has resulted in certain types of compensation. Have these been categorised and has hearing loss been related to specific types of awards? Is there consistency in court awards or settlements in relation to categories of hearing loss, or is there inconsistency in and between court awards and settlements?

Mr. O’Callaghan: There is total inconsistency and this is a problem.

Deputy Doherty: Is it a problem in the context of the courts?

Mr. O’Callaghan: Yes.

Deputy Doherty: It is a matter for the honourable members of the bench who make the awards.

Mr. O’Callaghan: Precisely. They have no system to go by.

Chairman: The Deputy is aware of the separation of powers and about commenting on the judiciary.

Deputy Doherty: Yes, but realising the independence of the judiciary, I take it the inconsistency is a matter of concern.

Chairman: Much store has been placed on having an agreed Irish measure for hearing loss and handicap. Another major omission is that the courts have no personal injury guidelines. Is that correct?

Mr. Hamilton: Does the Chairman mean a type of tariff?

Chairman: Yes.

Mr. Hamilton: No, they do not.

Chairman: There are such guidelines for UK courts - I have seen the relevant booklet. Whose responsibility is it to introduce guidelines in order to ensure a semblance of consistency?

Mr. Hamilton: There are two possibilities regarding guidelines. The judges could adopt guidelines or tariff guidelines could emerge through a process of case by case decisions. Alternatively, judges could agree that a broken leg is worth so much, etc. The alternative is to introduce legislation, which would raise questions of constitutionality as to whether and to what extent this could be done.

Chairman: There is a big gap. Even given the new measuring system of hearing loss and handicap it will still be open to each court to decide the amount of awards as no tariff exists. I do not know which Department should address this issue but it needs to be addressed.

Mr. Hamilton: Currently these cases are being heard by two judges.

Chairman: This is a recent development.

Mr. Hamilton: That is correct and, I imagine, has occurred in response to criticism of the large number of judges hearing cases and the possibilities of a wide variation in awards. We expect this will lead to a greater consistency in awards. However, it is a matter for the President of the High Court to order the business of the court and to decide what judges he assigns to cases.

Chairman: Are court rules and guidelines drawn up by a committee of judges? For example, who draws up superior court rules?

Mr. Hamilton: There is a committee, known as the Superior Court Rules Committee, which consists mainly of members of the judiciary. I am unsure as to whether the Secretary of the Department of Justice, Equality and Law Reform is a member of that committee. The Incorporated Law Society and the Bar Council are represented on it. Essentially the judiciary, with some input from the professions, make the rules of court. Fixing tariffs would not be a matter for the rules of court but for the judges.

Chairman: Because of the separation of powers, this is as far as we can go. It is a matter for judges. Is it possible to legislate?

Mr. Dalton: I think it is possible.

Mr. Hamilton: I am not saying it is not possible, but it concerns an area ---

Chairman: It is an issue which must be considered with great care.

Mr. Hamilton: I am not saying that, if done in a fair manner, it could never be done.

Chairman: How come the UK has a booklet on guidelines but no guidelines whatsoever exist for our courts?

Mr. Dalton: I do not know the origins of the English booklet. The problem with legislation is ensuring its constitutionality. Our best advice is that awards cannot be capped.

Chairman: I understand the point about capping awards, but we are talking about general guidelines. The booklet pertaining to the UK lists, for example, the worth of a broken neck, or a broken neck with aggravated pain, under normal circumstances. The judge must have regard to those guidelines and then take into account special factors pertaining to a case. However, there are no guidelines for our judges. There will be no tariff or indicative guidelines even if a new hearing system is accept by the courts. This is a gap which needs to be addressed.

We will now bring the witness from the Bar Council and the Incorporated Law Society before the committee.

Mr. Hamilton: I wish to correct something I said earlier when asked about the Law Reform Commission by Deputy Doherty. There was a reference in the 1964 Act concerning deductions of awards made to people in relation to insurance, pensions, gratuities and such like. This has been referred to the commission.

Chairman: I welcome Mr. Ken Murphy, Director General of the Law Society. Perhaps you would introduce your colleagues.

Mr. Murphy: On my left is Ms Mary Keane, Director of Policy and Deputy Director General of the Law Society. On my right is Mr. James McCourt, a solicitor and chairman of the Law Society’s litigation committee.

Chairman: I welcome Mr. MacMenamin, Chairman of the Bar Council. Perhaps you will introduce your colleague.

Mr. MacMenamin: I am accompanied by Ms. E. Gormley, Public Relations Manager of the Bar Council.

Chairman: We also have present a senior legal assistant from the Attorney General’s Office and his advisers; the Secretary General of the Department of Justice and some of his advisers; the Secretary General of the Department of Defence and Department of Finance officials.

Mr. Murphy: I thank the Committee for giving the Law Society an opportunity to attend. I will make an opening statement containing three main points. First, we reject and resent efforts to make scapegoats of solicitors to distract attention from where the fault for the current débâcle truly lies. Second, we believe that the State’s strategy in defending these cases has been and continues to be wasteful of taxpayer’s money. However, the society has offered to constructively take part in a joint working group with the State with a view to agreeing how these cases can be processed in a more cost effective manner. Third, we have already indicated we would support any Government measure to ban advertising by solicitors for personal injuries litigation work in relation to allegations of misconduct by solicitors in the pursuit of or processing of Army deafness cases. However, evidence to support these allegations should be provided to the society or else they should cease to be made.

In appearing before this Committee the society represents its entire membership of 5,200 solicitors and not solely those involved in Army deafness litigation. The Department of Defence has provided us with a list 40 solicitor firms who act for substantial numbers of plaintiffs in the Army deafness cases. This represents less than 3 per cent of the 1,700 solicitor firms in the State. The society also represents the solicitors in the Chief State Solicitor’s Office who are engaged on behalf of the State in defending these cases. We do not intend to express any view as to the merits or demerits of these cases in relation to which proceedings have been issued. These are matters for the courts to decide and it would be inappropriate and unhelpful for us to interfere in any manner with the independence of the judiciary.

The Law Society is a statutory body with responsibility for the admission, conduct and discipline of solicitors. Our members play a vital and responsible role in the legal system here and we are gravely concerned about the attacks which have been made on the integrity of our members both directly by the Minister for Defence and by some media commentators. Although in relation to the media it is heartening to see some signs of the tide turning in this respect recently. The society cannot and will not allow its members to be made scapegoats for faults that lie elsewhere. The true scandal here is the failure by the Department of Defence and the Army over a period of decades to protect the hearing of soldiers exposed to gunfire notwithstanding clear knowledge that injury would result.

A number of relevant points need to be made. First, it is not a matter of opinion on the part of the society that the State has been negligent for many years. This has been proved in the courts and has been implicitly accepted by the State when it settled 95 per cent of the 1997 cases. Second, solicitors are not responsible for the laws of the State. Solicitors do not make laws. Laws are made by you the legislators and are interpreted and applied by the Judiciary. The solicitor’s role in providing a knowledge of the law and a means of access to justice for those who require it. It is both unfair and foolish to blame solicitors for the law. Third, where the facts available to the solicitor disclose a breach of the law by the State a solicitor has a professional and ethical obligation to his client to pursue the client’s rights even if the wrongdoer is the State who made the laws in the first place. Fourth, solicitors are not the enemy of the State for providing legal services in these cases. Solicitors are engaged both against and by the State in these actions. This is the system which operates in a democracy and has served this country well over many decades. Finally, it is deeply disturbing that some of the recent comments by the Minister for Defence have, by implication, been critical of the performance by the judiciary of their functions in the context of these cases. The separation of powers between the legislature, the executive and the judiciary is one of the fundamental principles of our system of Government. An independent judiciary is a vital aspect of that principle.

In the light of these important points we wish to suggest that neither we nor you should allow the solicitors’ profession be made a scapegoat for any defendant who happens to be dissatisfied with judicial decisions. We make no apology for the involvement of our members and the vindication of the rights of citizens who have been harmed through the negligence of the State. Nevertheless, the society is anxious to be constructive in its approach to this complex issue as we have sought to be from the outset. There are three areas in relation to which the society or its members have been criticised and they are: costs, advertising and alleged misconduct. I will deal with each issue separately.

Over recent months there have been various references to the level of legal costs arising in respect of the Army deafness cases. In order to have any meaningful discussion on this it is important to understand what is meant by the term ‘legal costs.’ In any litigious proceedings there are a number of matters which fall under the general heading of legal costs. These costs may be incurred by both the defendant and the plaintiff. They include barrister’s fees, expert witness fees, expert witness attendance fees, expert witness standby fees, plaintiff’s expenses, the solicitor’s instruction fee, stamp duty on court documents and value added tax. Once proceedings are initiated a certain amount of costs automatically follow. However, the amount of total costs which will ultimately fall for payment depends largely on the method in which the defendant - in this case the State - chooses to respond to the proceedings. Total legal costs increase substantially where the defendant insists on defending the case to the door of the court or into court before conceding liability. I understand the Minister for Defence has issued instructions in all these cases, regardless of their merits, that they are to be defended in this manner. This strategy has resulted in a substantial increase in the level of costs due for payment in cases which are ultimately settled. While pursuing this extraordinary and expensive strategy in relation to the defence of these cases the Minister has demanded a 50 per cent reduction in legal fees by the solicitor profession. Solicitors involved in these cases are already substantially discounting their instruction fees and are agreeing with the State a substantially lower amount than would normally be granted by the Taxing Master if these were unique cases. In effect the Minister is demanding what he has already received. It is worth pointing out that the Taxing Master is a State appointed official who is an independent arbiter on lawyers fees. In assessing legal fees he is required by law to make adjustments where there is a multiplicity of similar cases. The means of further reducing the total level of costs in these cases remains totally in the hands of the Minister for Defence. The key is effective case management. If the situation had been properly managed at the outset we would not be dealing with the current situation. It is the experience of our members that where a defendant faces thousands of potential claimants the prudent approach is to immediately approach a case manager to formulate a strategy, a key element of which is to discourage opportunistic claims by early settlement where liability is clear and early processing of claims where liability is disputed. This has not happened in this instance with the result it is now very difficult to distinguish between genuine and opportunistic claims.

Even at this late stage there are advantages to be gained by proper case management. In our view the Minister should do four things. First, he should concede liability and reach an early settlement in those cases in which liability is clear. This would immediately reduce costs and also the average amount of settlement. Second, he should identify the cases in which liability is an issue and immediately process these cases through the courts. This would discourage opportunistic claims and would allow the courts to establish guidelines on quantum for settlements and court awards. Third, the Minister should use the court lodgement system where he believes excessive sums are being sought. Where the court awards a lower sum than the amount lodged the plaintiff pays both sets of legal costs from the date of the lodgement. Fourth, the Minister should desist from requiring full proof in all actions where this would involve rearguing defence legal points which have already been consistently rejected by the courts. The defence should learn from experience thereby reducing the time and costs involved in proving accepted facts.

On the RTE programme “Morning Ireland” on 1 December 1997, the Minister agreed that it would be useful for representatives of the society and the State to meet to discuss how the Army deafness cases could be processed in a more cost effective manner. That meeting took place on 9 December 1997 and following a constructive exchange of views it was agreed to establish a joint working group between the society, the Department of Defence and the Office of the Chief State Solicitor to explore the matter further. In spite of repeated requests from the society by telephone and letter, no meeting of this working group has yet taken place. In the view of the society, it is only through this group that all of the relevant issues can be examined and that very substantial reductions in the cost to the taxpayer of this litigation can be achieved. Late yesterday afternoon, the society received a letter from the Minister agreeing to a meeting of the group, although he wishes to limit its areas for discussion.

Turning to the issue of advertising by solicitors, solicitors have been criticised for advertising their services in the context of the Army deafness cases and suggestions have been made that this advertising has encouraged the bringing of claims which might not otherwise have been brought. While there is no means of proving or disproving this assertion, the society accepts that advertising by solicitors in respect of Army deafness cases is undesirable, given the current climate and the ongoing controversy.

On the issue of solicitors advertising generally, the Law Society prohibited all advertising by solicitors until 1988 when, at the insistence of the Government, the prohibition was removed. This reflected the view at the time, and since, that advertising is in the interests of the consumer and encourages competition. Advertising by solicitors was wholeheartedly endorsed by the Fair Trade Commission in its 1990 report, “Study of the Restrictive Practises in the Legal Profession”, and in which the views of the Law Society were quoted. The society expressed the view that:

“...the reputation of the profession would suffer if solicitors were allowed to advertise what could in some cases be unjustifiable claims, and the public would lose their confidence in the standards and integrity of the profession.

In the end, advertising was foisted on a very reluctant solicitor’s profession in the late 1980s by Government pressure and this position was given a statutory basis in the Solicitors (Amendment) Act, 1994. Accordingly, any prohibition on solicitor advertising, in whole or in part, requires legislation.

The current controversy has led to a Government decision to ban advertising on personal injury actions. The Law Society has publicly indicated its support for such a ban, provided it applies to everybody and not just solicitors. We would also support legislation to ban solicitor advertising in sensitive locations, such as hospitals and clinics.

On a number of occasions the Minister has made allegations against solicitors in the initiation and conduct of the Army deafness cases. At its meeting on with him 20 January 1998, by letter on the same date and by letter on 23 January, the society asked the Minister to provide any evidence in his possession to substantiate his claims of misconduct by any of its members so that the society could immediately investigate the position pursuant to its statutory functions and take whatever action may be deemed appropriate. The Minister has furnished no evidence to date.

The cost to the Exchequer of these claims is extremely difficult to predict, but if a proper analysis of the claims is undertaken an accurate prediction can be made. While it does not have the full facts of the claims before it, the society has a reasonable amount of information and it does not share the view of the Minister for Defence in his estimate that they will cost in total up to £1 billion to £2 billion. Some of the society’s members who deal with these claims are of the view that the entire cost may be closer to £100 million spread out over a period of five years. This is not to say that the society finds a figure of £100 million acceptable.

The one good thing that has come out of this is the fact that, in future, no soldier is likely to be seen on any firing range without hearing protection. It is regrettable that so much injury was incurred by soldiers to achieve this. Nevertheless, it has been the experience of the society that employers - be they the State or private - and/or insurers do not pay serious heed to health and safety issues until they have a significant impact on their pockets, examples being the now almost universal use of goggles in industry with a decrease in eye injury, the use of safety belts, increases in car safety, etc. It is a great pity that, at times, an enormous cost must be paid, both in human and economic terms, before these lessons are learned and protection for future generations is put in place.

I thank the Committee for allowing the society put its views here today. We will be happy to answer questions.

Chairman: I know from the facts before me that your estimate of the total costs involved are grossly wrong. Perhaps the Secretary General of Department of Defence would comment on the minimum anticipated costs?

Mr. O’Callaghan: At present, 11,500 claims are to hand. Given current quantum and current costs, that will cost the State £425 million. The cases are coming in at the rate of 600 per month. There is, therefore, a yearly add-on of £259 million to that sum. There is no reason to suppose that the potential claimant population of 150,000 will stop claiming. Given this, the total expected cost by 2000 will be £1.2 billion, of which £480 million could be costs. I do not anticipate that we will pay that amount, but we will certainly pay over £100 million.

Mr. Murphy said he had no view on the merits of the cases. Yet throughout of the rest of his presentation he spoke of decades of negligence by the Army and the Administration. We do not accept that and are willing to let the courts decide. I do not think that the Law Society should prejudge this matter. I presume that the society represents the solicitors who act for the State and who are contesting cases.

Chairman: I was very surprised, Mr. Murphy, that you were so judgmental in your submission. I have also read public statements to that effect. Among your members are solicitors who advise the State. Is that correct?

Mr. Murphy: Yes.

Chairman: In criticising how the State has dealt with the legislation you are criticising your own members. Is that correct?

Mr. Murphy: I have criticised the strategy adopted by the State, which is not necessarily dictated by the solicitors on the State side. If 95 per cent or so of cases disposed of to date have resulted by the courts favouring the plaintiff or settlements in favour of the plaintiff by the State, it seems reasonable to conclude that, in so far as other cases are produced on similar or identical grounds, one would learn from that experience and expect that the courts would decide similarly.

Chairman: What if you are wrong in your assertion regarding 95 per cent of cases? Would you consider that your judgment was questionable?

Mr. Murphy: According to a Dáil reply by the Minister, during 1997 settlements were reached in 1,125 cases and court awards following hearing were made in 29 cases. A further 33 cases were successfully defended or withdrawn. On that analysis of the 1997 figures provide by the Minister we conclude that approximately 95 per cent cases were either decided by settlement in favour-------

Chairman: Would the Secretary clarify that point?

Mr. O’Callaghan: We do not dispute the figures referred to by Mr. Murphy. However, that does not mean that we would be happy about the cases we settled out of court if a new regime were to be applied. Is Mr. Murphy prejudging the Irish assessment system, or the Green Book as it will be called? The whole situation could change when that is introduced and adduced as evidence in the High Court. Is he saying that we have no chance and that we must accept current quantum? If we had accepted the quantum that existed approximately 12 months ago we would be settling claims for much higher amounts. That has saved substantial money.

There are three cost drivers in this problem. The first is the sheer volume of claims. This is an unprecedented situation and I do not know how Mr. Murphy can make statements about it, especially as he has not been briefed by the Department about the scale of problem. We are willing to do that if he so wishes. The second is the quantum being awarded in court for zero or relatively minor handicap and the third is the fees.

We can look at the fees when we get the quantum right and the numbers under control. The focus on the fees is not our strategy at present; we are concentrating on the liability, the quantum, the volume, the handicap assessment system and other initiatives to try and get this assault on the Exchequer under control. How can Mr. Murphy say that we should surrender on liability and that the costs will then be cut?

Chairman: Is it the view of the Law Society that because negligence is claimed by each plaintiff, negligence is an established fact?

Mr. Murphy: No. We are basing all conclusions on the experience to date. The experience of the Department in the courts to date has been very poor unless something changes to completely alter that situation. Normally, one learns from experience and projects forward from previous experiences.

Chairman: I recall from yesterday’s discussion that there are more up to date figures.

Mr. Murphy: This is a parliamentary question on 29 January 1998.

Chairman: I come to negligence and your attitude to it. In your case there have been reports of solicitors “ambulance chasing” and behaving improperly. What steps has the Law Society taken to check if those advertising, in particular, or looking for business were in breach of your regulations? Have you taken any steps to check if these allegations are correct?

Mr. Murphy: The only person, of whom we are aware, who has made these allegations is the Minister for Defence. We asked him repeatedly to provide us with evidence which would allow us to investigate these allegations. We cannot investigate allegations where the names of the solicitors concerned have not been given. We are the statutory body responsible for the discipline and conduct of solicitors. If allegations of misconduct stand up, the solicitors concerned will be treated severely. We cannot examine a vacuum.

Chairman: Would you act on the basis of newspaper reports?

Mr. Murphy: I have not seen any newspaper reports making allegations other than reporting those which the Minister made. We asked the Minister to substantiate those allegations, at a meeting with him and subsequently.

Chairman: I would like to clarify what you consider a breach of your regulations, that is, ethically as well as legally wrong. Would it be ethically wrong for solicitors to mailshot members or retired members of the Defence Forces urging them to sue the State or drawing their attention to the fact they might have a deafness problem?

Mr. Murphy: It is difficult to make a judgment on that without seeing the wording of what is submitted. It is permissible under the advertising regulations, which exist under statute, to mailshot. A mailshot which would comprise or include unsolicited approaches to any person with a view to obtaining instructions on any legal matter would be a breach of the regulations. The Law Society - I checked on this as recently as today - has not received any complaint from a member of the public or any solicitor in relation to advertising or mailshots such as the Chairman describes.

Chairman: If it was true, would it be ethically wrong in principle?

Mr. Murphy: No. However, that would be subject to seeing what was done and the text. On the face of it, it looks objectionable and a breach of the regulations.

Chairman: What about telephoning members of the Defence Forces in the Lebanon?

Mr. Murphy: That would be touting and a breach of the regulations. I asked the Minister to provide us with evidence of that.

Chairman: In The Irish Times of 10 January 1998 an army spokesman said that within 24 hours of the news of the food poisoning, solicitors were already telephoning soldiers in Lebanon and that many present and past members of the Force were extremely disappointed about the negative image of the Defence Forces.

Mr. O’Callaghan: The Chief of Staff made that statement at a press conference. As far as I recall, he said it was his certain knowledge that was what happened.

Mr. McCourt: If we have names or instances, we will investigate. It is impossible for any organisation to investigate broad based allegations when provided with no back up information.

Chairman: I was surprised that your statement was so judgmental of every Army claim and now you are taking a reasonable stand in this case.

Mr. O’Callaghan: Would the Law Society would like to comment on advertisements appearing daily on Army deafness saying: “do not leave it too late”, “contact us”? Names and addresses of solicitors are given and the first consultation is free. What about advertisements advertising seminars in a hotel in Athlone where people will be told how to go about making a claim? They are a matter of record and we can give you the names.

Mr. McCourt: Have they been brought to the registrar’s committee?

Mr. O’Callaghan: Is it in breach of your ethics?

Mr. McCourt: I do not know what specific notice about which you are talking. You will appreciate that we are dealing with complaints against professional people and we cannot make decisions willy-nilly and instruct them to cease forthwith with particular advertising which may well be within the law.

Mr. O’Callaghan: With the greatest respect, decisions have been made on the Department of Defence’s strategy on this matter without being briefed.

Chairman: These advertisements appear daily in The Star and other local newspapers. Are they ethical? Some advertisements read: Army Deafness, all serving and ex-members of the Defence Forces do not leave it too late, contact us and first consultation free. Is that ethical? Are you prepared to equivocate on the ethics of that?

Mr. Murphy: We have approached the placers of some of the advertisements we have seen and asked them to withdraw them voluntarily and they have done so.

Chairman: When did you do that?

Mr. Murphy: Sometime in January, but I cannot say exactly when.

Mr. McCourt: I sat on the last registrar’s committee meeting which took place before the last council meeting which was on 22 January and, in a number of cases, we asked people to voluntarily withdraw them.

Chairman: After months of those advertisements appearing, you acted only in January.

Deputy Rabbitte: I would like to ask the Secretary of the Department to tell us how much has been paid to date.

Mr. O’Callaghan: Some £41.6 million has been paid to date.

Deputy Rabbitte: For how many cases?

Mr. O’Callaghan: Some 1,488 cases. Costs have amounted to £5.9 million. That would not include all the costs for the 1,488 cases.

Deputy Rabbitte: My point, Mr. Murphy, is that if 1,488 cases have yielded £41.6 million, how do you repeat on 4 February or whenever, £100 million as the total estimated liability on the Exchequer.

Mr. Murphy: We do not have all the facts in our possession in relation to the quantum of cases. Certainly, it is the evidence of the Department of the Defence that the average settlement level is falling all the time.

Deputy Rabbitte: We are talking about 1,400 cases and 12,000 cases on hand increasing at a rate of 600 per week. You have made a feisty defence of your profession in terms of credibility. We have reached the stage where we could pass the hat around for £100 million. It is a relatively minor matter compared to the scale, magnitude and dimension of what the State is facing. While leaving out the merits and demerits, the Minister for Finance will have to find that amount of money. From where have you plucked the £100 million?

Mr. Murphy: The figure from the Department is of the order of £400 million, which is considerably less than £2 billion.

Deputy Rabbitte: The figure you have heard from the Department is £1.2 billion, which is based on a certain surmise that may change in terms of that figure being exceeded.

That is based on a premise which might change, in that the figure might be exceeded. The aggregate figure Mr. O’Callaghan gave you was £1.2 billion.

Mr. Murphy: I am not in a position to challenge these estimates. The figures in the Dáil reply showed that the pay out in 1997 was approximately £30 million. That includes the costs and compensation payments. It is the view of the solicitors to whom I have spoken and who are bringing these cases that, as a matter of strategy, the more severe cases are being brought for hearing first. One of the reasons the average settlement amounts are decreasing each month is that it might be a reflection of the fact that severe cases have been heard first. Less severe cases might exist, if they are pursued at all.

Deputy Rabbitte: Is the 25 per cent to 30 per cent range in costs correct?

Mr. Murphy: Can you clarify that?

Deputy Rabbitte: The proportion being paid for legal costs, expert witness costs and so forth.

Mr. Murphy: That is probably about right for total legal costs, including VAT.

Deputy Rabbitte: You said you are prepared to support a ban on the advertising of services for personal injuries litigation. Do you accept that what might be a sensible set of rules to govern a normal situation being applied to a problem whose scale is no longer normal, as is the case here, poses questions for your profession as much as for the Department of Defence or other organs of the State?

Mr. Murphy: We are not in the business of saying this is anything other than an abnormal situation. Clearly, the figures concerned are substantial. However, the Army deafness cases are not, in principle, different from other general personal injury cases. The system works for those cases and why not-----

Deputy Rabbitte: Do you think it right that, as happened at the end of January, you should cajole the small number of your members to withdraw, on a voluntary basis, advertisements which the lay person would see as falling within the category of bad taste at best? Circulating such advertisements in hospital wards, public houses and messes is hardly in keeping with professional conduct.

Mr. McCourt: We want to be constructive and not engage in mudslinging. It must not be forgotten that advertising by lawyers was foisted on the profession by the Government in 1988. The 1994 Act introduced more rules regarding advertising and the 1996 regulations-----

Deputy Rabbitte: I thought the society was divided and that there was a view that not all advertising is necessarily a bad thing.

Mr. McCourt: The 5,200 practising solicitors are governed by the council of the Law Society. At its last meeting the council agreed to support any attempt to introduce a limited ban on advertising by solicitors with particular reference to personal injury claims, provided it was not limited solely to solicitors.

Deputy Rabbitte: Do you have a system of invigilating your membership? It must be apparent that these cases are handled by a small number of firms.

Mr. Murphy: There might be misunderstandings about that. The Department provided a list of 40 firms with substantial numbers of cases. Some firms have great numbers of cases but others have substantial numbers.

Deputy Rabbitte: Do you know anything about the level of fees going to leading members of the society who are concerned with the issues here?

Mr. McCourt: We understand the fees they are receiving are considerably less than they would accept in a once-off, unique situation.

Deputy Rabbitte: Is there any allowance for the repetitive nature of the cases?

Mr. Murphy: Yes, that is the point. That is taken into account.

Deputy Rabbitte: Does the Secretary of the Department have figures for the leading solicitors’ firms involved in terms of payments so far?

Mr. O’Callaghan: No. The Chief State Solicitor might have such figures.

Mr. Hamilton: I cannot break them down according to firms but I can confirm, as was pointed out by the Director General in accordance with the legal obligation, that a deduction is made for the repetitive nature of cases by the taxing master. The deduction is about 15 per cent. In other words, if a solicitor is taking a number of cases he or she receives 15 per cent less from the taxing master than he or she would for a once-off case.

Deputy Rabbitte: Chairman, I thought the Accounting Officer for the Department of Defence gave the Committee a figure for the payments to some solicitors at an earlier meeting.

Mr. Hamilton: I am informed that one firm of solicitors has been paid over £1 million in costs.

Mr. O’Callaghan: I do not have the figures at hand but I remember some of them. The figure for that firm has increased to £2.25 million. That includes the costs for medical witnesses and barristers.

Deputy Rabbitte: At that rate, Mr. Murphy, the firm will use up the entire £100 million. I wish to return to the substance of your submission, which was that the State’s strategy is wasteful of taxpayers’ money. The remit of the Committee is to form conclusions about that strategy. Can you elaborate on your view?

Mr. Murphy: The strategy involves running every case to the door of the court, if not beyond. It is self evident that the costs of litigation increase precipitously as a case approaches the final conclusion. That is particularly true because of the costs of witnesses, witnesses of fact and expert witnesses, and the costs of counsel. We have estimated that if a case were settled a month before hearing, the costs would be between 100 per cent and 120 per cent lower. The difficulty is that the conscious strategy being pursued means that all the costs are incurred. The cases are therefore settled at the maximum level of cost.

We believe that any case which the State believes is weak or improperly brought or involves malingering or exaggeration should be fully defended. However, an insurance company claims manager looking at this situation would identify the cases where, on experience to date, the facts would suggest proof of liability as being such that there was no prospect of succeeding and would seek to settle those cases at the earliest possible stage. Plaintiffs will always settle for a lower amount at an earlier stage, to dispose of the matter and to avoid the trauma involved in the court hearing. If cases were settled at an earlier stage, the amount of compensation and legal costs incurred would be much lower.

Chairman: What are the assumptions underlying that? What if the State concedes cases earlier and in the process elicits many more claims? Is it not the State’s dilemma that if it concedes cases earlier it might face 25,000 cases, or the 150,000 we have been informed might materialise, instead of 11,600?

Mr. Murphy: Would that necessarily follow? I question whether the manner in which the State chooses to fight these cases has an impact on the potential for cases being brought.

Mr. O’Callaghan: The strategy we are employing is working. You referred to £100 million. We have saved the taxpayer over £100 million by using the current strategy. The quantum in awards has fallen from approximately £35,000 to £20,000 in recent times.

Chairman: It is an award.

Mr. O’Callaghan: Yes. If that is multiplied by the 11,000 cases on hand the sum of £425 million is arrived at.

Deputy Rabbitte: Is Mr. Murphy’s point that in a situation of a 97 per cent success rate the £20,000 was there for the asking and perhaps less at an earlier stage?

Mr. O’Callaghan: If the Department had accepted liability at an earlier stage it would have been pegged at the quantum that existed at the time and the State would have been exposed. We have kept the liability question open; we are happy we did and can stand over that strategy. It has given us an opportunity to get the new Irish green book system and that can be adduced in evidence shortly. We believe the tide will turn in our favour on the quantum by a significant margin. When we are happy with the quantum we will consider the costs. Putting the cart before the horse and concentrating only on the costs at the current quantum would have been a very bad move.

Chairman: I want to spend a few minutes on the question of the Department’s regulations, their enforcement, invigilation and whether or not there will be any attempt by the society to establish its own facts in the case.

Mr. Murphy: I cannot see the basis on which it necessarily follows that the strategy applied of fighting the cases to the door of the court is leading to reduced settlements. There are probably other factors leading to the reduction of the settlement levels. Additional costs are unquestionably being incurred by fighting every case to the door of the court.

Deputy Rabbitte: Mr. Murphy said the State had been negligent for years. Will he explain why that is a manifest fact?

Mr. Murphy: It is based on the decisions of numerous judges of the High Court in fully argued cases.

Chairman: Does it follow that the same is true of all future claimants?

Mr. Murphy: Nothing follows except that from experience to date on similar cases and facts one would expect a similar conclusion.

Chairman: The logic of what Mr. Murphy said is that the State should take it that as this is the established fact in 1,000 cases and will be in all future cases they should accept it.

Mr. Murphy: Any solicitor advising a client does so on the basis of his experience of previous similar cases. I suggest the State should draw its conclusions from that.

Chairman: Does Mr. Murphy mean that because certain settlements were agreed in 1,000 cases we can take it the remaining 11,600 cases now before us will be decided according to the same level?

Mr. Murphy: First, on the issue of liability if the facts are similar then one should conclude that either the State will be forced to settle them as they did in 1,187 cases last year or if a new element can be introduced into the equation to change that outcome then let us see what it is.

Chairman: It was clearly implied by your statement that nothing would change that outcome and the State should get its act together and admit liability.

Mr. Murphy: No.

Mr. McCourt: Where the State puts in a full defence the plaintiff is therefore obliged to go to the ends of the earth to prove liability against the State. This requires employing an engineer. Doctors will be in attendance anyway but bringing the engineer to court because liability is an issue incurs a cost whether that engineer is called or not. There are cases which, from history, the State must lose. Would the State please categorise the cases into the must lose cases and settle them at the earliest opportunity thereby achieving a saving in terms of damages and also costs in relation to solicitors, professional witnesses, barristers and costs across the board.

Where the State in its wisdom, as advised by the Chief State Solicitors’ Office and barristers, etc. believe cases can be won, let it put those cases on and fight them. If there were proper case management there would be significant reductions in costs. In relation to one of our local authorities with no case management for many years - and I am not talking about Dublin - there was a culture where people put in claims. They were always defended and ultimately settled on the door of the court. People were putting in spurious claims but as soon as that local authority got its house in order and had proper case management in the same way as an insurance company the spurious cases ceased and the other cases were settled at an early and cost efficient time. There must be differentiation between the cases which will win and those which will not.

Chairman: Mr. Murphy spoke about the State losing 95 per cent of the cases.

Mr. Murphy: Or settling.

Chairman: Mr. Murphy seems to imply that 95 per cent of the rest of the cases must be lost ipso facto. Is he not saying that?

Mr. Murphy: In 1997 settlements were reached in 1,125 cases and court awards following hearing were made in 29 cases. One presumes the only reason the State settled cases was it believed liability would be found against it and an award would be made. I urge that 95 per cent of all future cases should be settled. This experience should be taken into account and if followed in future many more cases will be settled at the door of the court and expenses will be incurred unnecessarily whereas if the likelihood of the loss of the cases was identified at an earlier stage they could be disclosed of at a lower cost.

Deputy Rabbitte: This is similar to a discussion Mr. Murphy and I had at a different time and place about injuries in the industrial environment where part of the cost to industry arises from insurance companies making settlements because the quantum is less than they would otherwise incur and run the risk of winning or losing as the case may be. To apply that approach to something that has the magnitude with which we are dealing here would cause any Accounting Officer to reflect.

Mr. Murphy: I recall that occasion and I believe we were discussing cases which were being disposed of for nuisance value because the amount of the claims was relatively small and the cost of fighting them would outweigh it. Although there seemed to be a good defence on the merits the insurance company would take a commercial approach and dispose of them. That is not what is being recommended here. Clearly these are not nuisance value cases.

Chairman: How did Mr. Murphy come to the basis of £100 million. He made a very categorical statement. Over and above what was spent last year £80 million is provided this year and it is likely that will be exceeded.

Mr. Murphy: In the light of what the Secretary has said and the arguments which have been made against it I am not prepared to stand over the sum of £100 million as a serious assertion. It was an estimate made in good faith and based on the figure that as £30 million was paid last year it possibly might have been one of the worst years.

Chairman: The sum was arrived at taking into account that 50,000 people in the Permanent Defence Force served in the period in question and if every case was conceded at present quantum and costs based on £40 million because 50,000 on £40,000 is £2 billion - and that does not include the FCA Reserve Forces of 150,000 people - one can see why we, as a Public Accounts Committee, would be alarmed at the potential exposure of the State and especially if the State did not defend them. There would be very grave criticisms from this committee if that were the case.

Mr. Murphy: We are not suggesting that the State should throw in the towel in every case, but the State should identify cases that are winnable and concede at an earlier stage those which are not.

Deputy C. Lenihan: I want to contradict what Mr. Murphy has said. I think it is the exact opposite. This Committee should send out a strong message to the media, the public and potential claimants that we are not in a position, as Mr. Murphy seems to be indicating, which is analogous to a private insurance company that can mix and match its claims. We are responsible for State money. I congratulate the Department if, in fact, it is now the policy to vigorously fight all claims. That is the only message the State can give.

Mr. Murphy made very disparaging and unsubstantiated remarks about the legal defence being employed by the State and, in particular, about the Minister for Defence. In that context, I want to ask the Secretary of the Department a question. Was the reason for your litigation strategy, which has been described as wasteful, derived primarily from legal advice or was it done from policy or political motives? What were the primary motives for the State’s strategy which has been described by Mr. Murphy as wasteful?

Mr. O’Callaghan: It was a policy-based departmental strategy which was Government approved.

Deputy C. Lenihan: It was Government approved, but is it primarily derived from legal advice furnished to you, as Secretary of the Department, by the Chief State Solicitor’s Office and the Office of the Attorney General?

Mr. O’Callaghan: That was a major factor, yes.

Deputy C. Lenihan: Would you say it was the majority factor in the whole strategy?

Mr. O’Callaghan: If you wish to put it that way, but I must emphasise that the strategy was to fight the cases to save money, particularly on the Defence Vote, based on our own convictions that we were right.

Deputy C. Lenihan: In relation to the advertising, I agree with Mr. Murphy and I remember when the issue came up at the time. I certainly do not agree at all with the concept of solicitors being allowed to advertise. If anything, this Committee should send a strong signal to Mr. Murphy that we do not approve of it. I certainly do not approve of it and I think the ban on solicitors being able to advertise their services to any degree should be reintroduced.

The Law Society has responsibility for the regulations governing this area. From Mr. Murphy’s evidence to this Committee, it seems he is not aware of these advertisements, which the Chairman showed him earlier on. The Secretary of the Department can probably show you files full of them. Are you aware that these advertisements are being placed?

Mr. Murphy: I certainly have not seen files and files full of advertisements. We have seen some advertisements and have moved in relation to some of them. However, I am of the view - and I know the Law Society is of the view - that the effect of the advertising, in terms of the volume of litigation in these cases, is greatly exaggerated. As far as we can determine there are - maybe the Secretary has more evidence of it - probably not more than a dozen solicitors’ firms engaged in this. The majority of solicitors’ firms engaged in advertising for this type of work are not firms which have large volumes of the cases. Factors other than solicitors’ advertising have led to the volume of cases.

Deputy C. Lenihan: Would you describe the advertising campaign as being aggressive or soft? I am asking the same question of the Secretary of the Department.

Mr. Murphy: Some of those advertisements would bear the term aggressive.

Deputy C. Lenihan: You would term it aggressive advertising on the part of members of your profession? I understand that you are meant to be told of each one of these advertisements within a 12 month period of its date of issue. Is that correct? Within a defined 12 month period of an advertisement of this aggressive nature appearing, it is sent to you. That is one of your regulations.

Mr. Murphy: In fact, the regulation provides that a solicitor who places an advertisement retains a copy of that advertisement for 12 months, not that it is supplied to us.

Deputy C. Lenihan: So it is not supplied to you?

Mr. Murphy: Part of the problem, if I may explain, is that the Law Society does not see an advertisement before it is placed. It is only after the event that the Law Society may see an advertisement.

Deputy C. Lenihan: Do you monitor the advertising? Given that your society was deeply concerned when the potential to advertise was introduced against its will, how do you actually monitor the type of description and wording used in advertisements that are principally designed to attract claimants, as seems to be the case in this case? Will you outline for the Committee how you monitor it?