Irish Army deafness claims

Last updated

The army deafness [nb 1] claims were a series of personal injury claims taken from 1992 to 2002 against the Irish Department of Defence by members of the Irish Defence Forces for noise-induced hearing loss resulting from exposure to loud noise during military operations and training. The claims stated that the government had failed to provide adequate ear protectors during firing exercises, as was required under regulations dating back to the 1950s. About 16,500 claims were made, resulting in payouts totalling about €300m.

Contents

Background

From 1952, army regulations required the use of ear protection on shooting ranges and in artillery drill. [4] [5] Initially, cotton wool was recommended; in 1961, cotton wool moistened with Vaseline; and from 1972 plastic Sonex earplugs were provided. [4] [5] In 1987 a comprehensive regime of protection was introduced with modern protection and safety protocols. [4] [5] Some plaintiffs alleged they had used cigarette butts as ear protection. [6] [7] The government in 1998 claimed that all soldiers had been issued from 1952 with protection in conformity to best practice of the time, although the level of protection provided was later recognised as inadequate; [4] that the decision on whether to avail of earplugs was left to the discretion of the soldier rather than being commanded by a superior; [4] and that claims brought by plaintiffs that they had never been issued with protection could not be disproven as there were no specific records kept for earplugs issued to each soldier. [4]

Several test cases were brought between 1992 and 1996 by litigants represented by solicitors on a no win no fee basis. [8] Michael Smith, the Minister for Defence in 1998, said: [4]

The cases as they had been heard before the courts went as follows: an isolated case was given an award in August 1992; the next case did not arise until February 1994 — in this case the claim was dismissed; arising from the time lag before cases come to hearing, it was not until December 1995 that a landmark case, the B case with little actual impairment, was heard in the High Court and an award of £45,000 was made; it was not until June 1996 that another case, the N case, came to hearing — the claimant received £24,720, notwithstanding the fact that the presiding judge found that the individual had persevered with a claim for loss of hearing that, on relatively clear evidential grounds, was unsustainable. I have nothing to add to the court's stated reservations about the plaintiff's honesty. Without labouring the point, I trust it will be clear to all Members that this case came as a shattering blow to the State's defence as it laid down a precedent that, even where the plaintiff has been found to be untruthful in the matter of hearing loss, he may still receive substantial compensation for tinnitus. Severe tinnitus — a constant ringing in the ears — is normally present in a small minority of hearing loss cases. It cannot be measured objectively. The case I have just mentioned prompted a major increase in the number of claims.
One further case came to hearing before the summer recess in 1996 and was awarded £25,000. However, it was the sixth, the K case, that proved to be a major landmark. An individual was awarded £80,000 for a minor hearing loss. Although this figure was subsequently reduced under negotiation following a Supreme Court appeal by the State, and although similar cases have subsequently received as little as £5,000, the impact of this judgment is best illustrated by the following statistic: in the five years leading up to this case, a little over 4,000 cases had been submitted to the Department of Defence; in the nine months following it, another 4,000 were received. The floodgates were literally burst open by this judgment. A further case was awarded £17,500 in December. In addition, 136 cases were settled by negotiation during 1996.

A December 1997 written answer to a Dáil question showed over 1,000 cases settled across many units of the Defence Forces. [3] The government adopted a strategy of contesting every claim until a 1997 Supreme Court decision. After this, the Law Society of Ireland facilitated negotiations between the Chief State Solicitor's Office and the Department of Defence on the one hand, and the main solicitors' firms representing claimants on the other, [9] which led to a suspension of court proceedings while a Department of Health expert group developed a standardised metric for assessing hearing loss. [1] This group's 1998 "Green Book" report informed the Civil Liability (Assessment of Hearing Injury) Act 1998. [1] Subsequently, the Supreme Court advised the government to assign standardised rates of compensation for the various levels of hearing loss. [10] It also awarded compensation based on predicted future loss of hearing additional to normal age-related hearing loss; opponents criticised this as impossible to quantify. [11] In December 1999, the Supreme Court accepted the government's formula of IR£750 per degree of deafness attained at age 60. [10] [12] This was the basis for the Early Settlement Scheme used for most claims. [13] The average claim payout fell from €30,000 before the adoption of the guidelines to €10,700 in 2002, €8,900 in 2003, and €5,700 in 2004. [14] [15]

When Michael Bell revealed he had brought a suit for hearing loss relating to his Fórsa Cosanta Áitiúil service, there were calls for him to stand down from the Dáil Public Accounts Committee because of a perception of conflict of interest. [16] He remained on the committee until losing his seat in the 2002 general election. [17]

In 2000, the National Treasury Management Agency was empowered to act as the State Claims Agency for personal injury actions and similar claims against the state. Although the army deafness claims issue informed the debate on the State Claims Agency's establishment, initially the Early Settlement Scheme remained outside its remit. [10] [18] In 2002, the minister stated the Early Settlement Scheme would no longer be open to new claimants, as under the statute of limitations the issue had been in the public domain for ten years. [13] By 2004, 328 claims had been settled in court, with 14,681 claims being settled out of court. [19] It was in 2005 that all outstanding army deafness claims were transferred to the State Claims Agency. [20] This resulted in a reduction of 80% in the ratio of legal costs. [21]

Consequences

Cost

Defence minister Willie O'Dea said in November 2009 that 16,139 claims had been disposed of, with €288.7m paid to plaintiffs, including legal costs of €100.2 million. [20] [21] There were then 417 "active cases" with an estimated future cost of about €8m. [20] Before the 1998 act was passed, the Public Accounts Committee had estimated a worst-case total cost of £5.5bn, [22] while the Department of Defence had estimated €1bn. [13]

In 2006 it was alleged that solicitors had double-charged fees in some 152 claims, although no charges were brought. [23]

Other effects

The large number of claims contributed to a fall in public respect for the Defence Forces and a drop in morale of serving members. [22] Jim Mitchell, chair of the Dáil public accounts committee, said in 1997, "Anybody who thinks this is not a scam must be blind. We are a laughing stock among defence forces around the world." [5]

Criticism of solicitors' advertising "no win no fee" services to army veterans resulted in a 2002 amendment to section 71(2) of the Solicitors Act 1954: [24] [25]

A solicitor shall not publish or cause to be published an advertisement which [...]
(h) expressly or impliedly refers to—
(i) claims or possible claims for damages for personal injuries,
(ii) the possible outcome of claims for damages for personal injuries, or
(iii) the provision of legal services by the solicitor in connection with such claims,
(i) expressly or impliedly solicits, encourages or offers any inducement to any person or group or class of persons to make the claims mentioned in paragraph (h) of this subsection or to contact the solicitor with a view to such claims being made

Footnotes

  1. ↑ The affair was commonly described as "army deafness", [1] [2] although some claimants were from the Air Corps or Naval Service rather than the Army, [3] and most had partial rather than total hearing loss.

Related Research Articles

<span class="mw-page-title-main">Irish Republic</span> Revolutionary state that declared its independence from the United Kingdom; 1919-1922

The Irish Republic was an unrecognised revolutionary state that declared its independence from the United Kingdom in January 1919. The Republic claimed jurisdiction over the whole island of Ireland, but by 1920 its functional control was limited to only 21 of Ireland's 32 counties, and British state forces maintained a presence across much of the north-east, as well as Cork, Dublin and other major towns. The republic was strongest in rural areas, and through its military forces was able to influence the population in urban areas that it did not directly control.

The First Dáil was Dáil Éireann as it convened from 1919 to 1921. It was the first meeting of the unicameral parliament of the revolutionary Irish Republic. In the December 1918 election to the Parliament of the United Kingdom, the Irish republican party Sinn Féin won a landslide victory in Ireland. In line with their manifesto, its MPs refused to take their seats, and on 21 January 1919 they founded a separate parliament in Dublin called Dáil Éireann. They declared Irish independence, ratifying the Proclamation of the Irish Republic that had been issued in the 1916 Easter Rising, and adopted a provisional constitution.

<span class="mw-page-title-main">David Andrews (politician)</span> Irish former Fianna Fáil politician (born 1935)

David Andrews is a former Irish Fianna Fáil politician who served as Minister for Foreign Affairs from 1992 to 1993 and 1997 to 2000, Minister for Defence from 1993 to 1994 and June 1997 to October 1997, Minister for the Marine from 1993 to 1994, Minister of State at the Department of Foreign Affairs from 1977 to 1979 and Government Chief Whip and Minister of State at the Department of Defence from 1970 to 1973. He served as a Teachta Dála (TD) from 1965 to 2002.

Michael Smith is an Irish former Fianna Fáil politician who served as Minister for Defence from 1997 to 2004, Minister for Education from November 1994 to December 1994, Minister for the Environment from 1992 to 1994 and a Minister of State in various governments. He served as a Teachta Dála (TD) for the Tipperary North constituency from 1969 to 1973, 1977 to 1981 and 1987 to 2002. He also served as a Senator for the Cultural and Educational Panel from 1983 to 1987 and for the Agricultural Panel from May 1982 to December 1982.

<span class="mw-page-title-main">Government of Ireland</span> Ministerial cabinet exercising executive authority in the country of the Republic of Ireland

The Government of Ireland is the cabinet that exercises executive authority in Ireland.

<span class="mw-page-title-main">Defence Forces (Ireland)</span> Combined military forces of Ireland

The Defence Forces are the armed forces of Ireland. They encompass the Army, Air Corps, Naval Service, and Reserve Defence Forces.

Ireland has a longstanding policy of military neutrality: it does not join military alliances or defense pacts, take part in international conflicts, nor host foreign armies. The nature of Irish neutrality has varied over time. Ireland declared itself a neutral state during the Second World War, and during the Cold War it did not join NATO nor the Non-Aligned Movement. Since the 1970s, some have defined it more broadly to include a commitment to "United Nations peacekeeping, human rights and disarmament". Recent Irish governments have defined it narrowly as non-membership of military defensive alliances. The compatibility of neutrality with Ireland's membership of the European Union has been a point of debate in EU treaty referendum campaigns since the 1990s. The Seville Declarations on the Treaty of Nice acknowledge Ireland's "traditional policy of military neutrality". The Irish Defence Forces have been involved in many UN peacekeeping missions.

Mervyn Taylor was an Irish Labour Party politician who served as Minister for Equality and Law Reform from 1993 to 1994 and from 1994 to 1997. He served as a Teachta Dála (TD) for the Dublin South-West constituency from 1981 to 1997. He was the first ever Jewish cabinet minister in Ireland.

<span class="mw-page-title-main">Minister for the Co-ordination of Defensive Measures</span> Former Irish government cabinet minister

The Minister for the Co-ordination of Defensive Measures was the title of Frank Aiken as a member of the Government of Ireland from 8 September 1939 to 18 June 1945 during The Emergency — the state of emergency in operation in Ireland during World War II. The Minister was intended to handle Civil Defence and related measures, allowing the Minister for Defence to concentrate on matters relating to the regular Army. The office was also responsible for handling wartime censorship.

<span class="mw-page-title-main">Ministers and Secretaries Acts</span>

The Ministers and Secretaries Acts 1924 to 2020 is the legislation which governs the appointment of ministers to the Government of Ireland and the allocation of functions between departments of state. It is subject in particular to the provisions of Article 28 of the Constitution of Ireland. The Acts allow for the appointment of between 7 and 15 Ministers of Government across 17 Departments, and for the appointment of up to 20 junior ministers, titled Ministers of State, to assist the Ministers of Government in their powers and duties.

George Martin Birmingham is an Irish judge who has served as President of the Court of Appeal since April 2018 and a Judge of the Court of Appeal since October 2014. He previously served as a judge of the High Court from 2007 to 2014. He served as a Teachta Dála (TD) for the Dublin North-Central constituency from 1981 to 1989 and as a Minister of State from 1982 to 1987.

<span class="mw-page-title-main">Electoral (Amendment) Act 2005</span> Constituencies in use at Dáil elections from 2007 to 2011

The Electoral (Amendment) Act 2005 is a law of Ireland which revised Dáil constituencies in light of the 2002 census. The new constituencies took effect on the dissolution of the 29th Dáil on 29 April 2007 and a general election for the 30th Dáil on the revised constituencies took place on 24 May 2007.

The European Convention of Human Rights Act 2003 is an act of the Irish parliament, the Oireachtas, which gave further effect to the European Convention on Human Rights in Irish law. It is substantially similar to the UK's Human Rights Act 1998.

<span class="mw-page-title-main">Capital punishment in Ireland</span> Overview of the capital punishment in Ireland

Capital punishment in the Republic of Ireland was abolished in statute law in 1990, having been abolished in 1964 for most offences including ordinary murder. The last person to be executed by the British state in Ireland was Robert McGladdery, who was hanged on 20 December 1961 in Crumlin Road Gaol in Belfast, Northern Ireland. The last person to be executed by the state in the Republic of Ireland was Michael Manning, hanged for murder on 20 April 1954. All subsequent death sentences in the Republic of Ireland, the last handed down in 1985, were commuted by the President, on the advice of the Government, to terms of imprisonment of up to 40 years. The Twenty-first Amendment of the constitution, passed by referendum in 2001, prohibits the reintroduction of the death penalty, even during a state of emergency or war. Capital punishment is also forbidden by several human rights treaties to which the state is a party.

<span class="mw-page-title-main">Emergency Powers Act 1939</span> Irish legislation

The Emergency Powers Act 1939 (EPA) was an Act of the Oireachtas enacted on 3 September 1939, after an official state of emergency had been declared on 2 September 1939 in response to the outbreak of the Second World War. The Act empowered the government to:

make provisions for securing the public safety and the preservation of the state in time of war and, in particular, to make provision for the maintenance of public order and for the provision and control of supplies and services essential to the life of the community, and to provide for divers and other matters connected with the matters aforesaid.

<span class="mw-page-title-main">Seán Barrett (politician)</span> Irish Fine Gael politician (born 1944)

Seán Barrett is a former Irish Fine Gael politician who served as Ceann Comhairle of Dáil Éireann from 2011 to 2016, Minister for Defence and Minister for the Marine from 1995 to 1997, Government Chief Whip from 1982 to 1986 and 1994 to 1995. He served as a Teachta Dála (TD) for the Dún Laoghaire constituency from 1981 to 2002 and 2007 to 2020.

The Thirty-first Amendment of the Constitution (Children) Act 2012 amended the Constitution of Ireland by inserting clauses relating to children's rights and the right and duty of the state to take child protection measures. It was passed by both Houses of the Oireachtas (parliament) on 10 October 2012, and approved at a referendum on 10 November 2012, by 58% of voters on a turnout of 33.5%. Its enactment was delayed by a High Court case challenging the conduct of the referendum. The High Court's rejection of the challenge was confirmed by the Supreme Court on 24 April 2015. It was signed into law by the President on 28 April 2015.

<i>Sinn Féin Funds case</i> Irish court case

The Sinn Féin Funds case was a 1942–1948 Irish court case in which the Sinn Féin party claimed ownership of funds deposited with the High Court in 1924 which had belonged to the Sinn Féin party before 1923. The Sinn Féin Funds Act 1947, which attempted to halt the court case and assign the funds to Bord Cistí Sinn Féin, was ruled unconstitutional by the Supreme Court in an important judgement on separation of powers and private property rights. The original action was subsequently decided against Sinn Féin, on the basis that the pre-1923 party was separate from the 1940s party. Most of the disputed funds were consumed by legal costs.

Carmel Stewart is an Irish lawyer who has been a Judge of the High Court since 2014. She was previously a barrister and a Judge of the Circuit Court between 2012 and 2014.

References

Sources

Court cases

Citations

  1. 1 2 3 LRC 76-2005 §1.39
  2. ↑ Reid, Colette (2013-02-28). Civil Litigation (3rd ed.). OUP Oxford. pp. 11–12 sec 1.10.1. ISBN   9780199603435 . Retrieved 2 September 2015.
  3. 1 2 "Priority Questions. - Hearing Impairment Claims". Dáil Éireann debates. 17 December 1997. Retrieved 2 September 2015.
  4. 1 2 3 4 5 6 7 Smith, Michael (6 May 1998). "Civil Liability (Assessment of Hearing Injury) Bill 1998: Second Stage". Dáil Éireann debates. pp. cc.859–870. Retrieved 2 September 2015.
  5. 1 2 3 4 Mckittrick, David (22 December 1997). "Nation shell-shocked by soldiers' deafness claims". The Independent . London. Retrieved 1 October 2015.
  6. ↑ "Retired brigadier general settles Army deafness claim". The Irish Times . 31 July 1999. Retrieved 2 September 2015.
  7. ↑ Clonan, Tom (2013-11-15). Whistleblower, Soldier, Spy: A Journey into the Dark Heart of the Global War on Terror. Liberties Press Limited. p. 69. ISBN   9781909718333 . Retrieved 2 September 2015.
  8. ↑ LRC 76-2005 §1.38
  9. ↑ "Army deafness litigation update" (PDF). Law Society Gazette. Dublin: Law Society of Ireland. 94 (6): 7. July 2000.
  10. 1 2 3 LRC 76-2005 §1.40
  11. ↑ Kennedy, Geraldine (22 July 1998). "Army deafness claims may cost £1bn after new ruling". The Irish Times . Retrieved 11 September 2015.
  12. ↑ "New army deafness guidelines will save State millions". RTÉ.ie . 7 December 1999. Retrieved 2 September 2015.
  13. 1 2 3 "Significant progress in tackling hearing loss compensation claims". Press Releases. Department of Defence. 2003. Retrieved 2 September 2015.
  14. ↑ "Figures show huge fall in value of army deafness payouts". BreakingNews.ie. 12 August 2003. Retrieved 11 September 2015.
  15. ↑ Condon, Deborah (20 August 2004). "Army deafness claims continue" . Retrieved 11 September 2015.
  16. ↑ Haughey, Nuala (29 January 1998). "Bell should pull out of deafness hearings - TDs". The Irish Times . Retrieved 2 September 2015.
  17. ↑ "2000 Annual Report of the Comptroller and Auditor General and Appropriation Accounts: Prelude". Committee of Public Accounts proceedings. Oireachtas. 4 April 2002. Retrieved 2 September 2015. Members Present: ... Deputy M. Bell,
  18. ↑ McCreevy, Charlie (10 October 2000). "National Treasury Management Agency (Amendment) Bill 2000: Second Stage". Dáil Éireann debates. pp. Vol.524 No.3 p.21. Retrieved 2 September 2015. It had been envisaged at an earlier stage that a State claims agency would deal with Army hearing loss cases. However, the strategy adopted by my colleague, the Minister for Defence, has been successful in bringing about a dramatic reduction in the levels of compensation being paid in these cases. The Minister has established a pilot scheme specifically for the Army hearing loss claims and it is hoped most of them can be disposed of under that scheme, with considerable savings to the Exchequer. Accordingly, there may not be a role for the claims agency in handling such cases. However, this matter will be kept under review.
  19. ↑ "€273m paid out in army deafness cases". RTÉ news. 5 February 2004.
  20. 1 2 3 "Written Answers - Hearing Impairment Claims". Dáil Éireann debates. Oireachtas. 19 November 2009. Retrieved 2 September 2015.
  21. 1 2 Drennan, John (24 January 2010). "Army deafness saga finally nears an end". Irish Independent . Retrieved 2 September 2015.
  22. 1 2 "£5bn and rising: bill for Army 'deafness'". Irish Independent . 6 March 1998. Retrieved 2 September 2015.
  23. ↑ Walsh, Anne-Marie (15 July 2006). "Solicitors 'unable' to give Army deafness bill copies". Irish Independent. Retrieved 2 September 2015.
  24. ↑ Hosier, Maeve (2014-08-17). The Regulation of the Legal Profession in Ireland. Quid Pro Books. pp. 79–80. ISBN   9781610272599 . Retrieved 11 September 2015.
  25. ↑ "Solicitors (Amendment) Act 2002, Section 4". Irish Statute Book . Retrieved 11 September 2015.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.