User:Jnestorius/Army deafness

Introduction

1.1 The 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.

1.2 At 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 Another 21 cases were dismissed by the Courts and 30 cases were withdrawn making a total of 1,539 cases having been disposed of.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.

1.3 In 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 :-

Regulations

2.1 Research 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.

2.2 All 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 effec 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.

Testing

3.1 Hearing 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.

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

3.3 A 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.

3.4 Furthermore, the British and the American Medical Association (AMA) both have their own systems of assessing hearing handicap. Under these systems, many of the claims thus leading to awards being made to claimants who, whichever system is used, have zero or very slight handicap.

3.5 An 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.

3.6 A 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.

3.7 Some 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.

3.8 The 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.

Military regulations and testing

4.1 The 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.

4.2 It 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.

4.3 In 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.

4.4 In 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.

4.5 This 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).

4.6 The Director of the Army Medical Corps told the Committee that if the old whisper testwas 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.

Military handling of hearing protection

5.1 The 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.

5.2 Since 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).

5.3 As 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.

5.4 It 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

5.5 The 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.

5.6 The 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.

5.7 The 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.

5.8 The 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.

5.9 The 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.

Administrative handling of claims

6.1 The 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.

6.2 Concern 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.

6.3 The 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.

6.4 The 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.

Legal handling of claims

7.1 The 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.

7.2 There 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.

7.3 With 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.

7.4 As 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.

Legislation apparently impacting on the issue

8.1 In 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.

8.2 In 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.

8.3 In 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.

8.4 In 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.

Conclusions.

9.1 The 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.

9.2 The 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 research [Research into Environmentally Induced Hearing Loss: Internal survey carried out by Frank Cass and Sons, Industrial Audiologists.] (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.

9.3 As 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.

9.4 Turning 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.

9.5 The 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.

9.6 When, 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.

9.7 The 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 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.

9.8 The 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.

9.9 The 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.

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

9.10.2 Likewise 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 the problem.

9.10.3 The reality is that claims are being made because so far, in the overwhelming majority on 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.

9.11 Given the 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.

9.12.1 The 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.

9.12.2 The '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.

9.12.3 The 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.

9.12.4 The 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.