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The '''army deafness'''{{#tag:ref|The affair was commonly described as "army deafness",<ref name="lrc1s39"/><ref name="ReidIreland2013">{{cite book|last=Reid|first=Colette|title=Civil Litigation|url=http://books.google.com/books?id=jhg6t3A2HkIC&pg=PA11|accessdate=2 September 2015|edition=3rd|date=2013-02-28|publisher=OUP Oxford|isbn=9780199603435|pages=11–12 sec 1.10.1}}</ref> although some claimants were from the ] or ] rather than the ],<ref name="dail19971217"/> and most had partial rather than total hearing loss.|group="nb"}} claims were a series of ] claims taken from 1992 to 2002 against the ] by members of the ] for ] resulting from exposure to loud noise during military operations and training. The claims stated that the government had failed to provide adequate ]s 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. The '''army deafness'''{{#tag:ref|The affair was commonly described as "army deafness",<ref name="lrc1s39"/><ref name="ReidIreland2013">{{cite book|last=Reid|first=Colette|title=Civil Litigation|url=https://books.google.com/books?id=jhg6t3A2HkIC&pg=PA11|access-date=2 September 2015|edition=3rd|date=2013-02-28|publisher=OUP Oxford|isbn=9780199603435|pages=11–12 sec 1.10.1}}</ref> although some claimants were from the ] or ] rather than the ],<ref name="dail19971217"/> and most had partial rather than total hearing loss.|group="nb"}} claims were a series of ] claims taken from 1992 to 2002 against the Irish ] by members of the ] for ] resulting from exposure to loud noise during military operations and training. The claims stated that the government had failed to provide adequate ] 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.


==Background== ==Background==
From 1952, army regulations required the use of ear protection on ]s and in ] drill.<ref name="smith1998">{{cite web|url=http://debates.oireachtas.ie/dail/1998/05/06/00018.asp|title=Civil Liability (Assessment of Hearing Injury) Bill, 1998: Second Stage|last=Smith|first=Michael|date=6 May 1998|work=Dáil Éireann debates|pages=cc.859–870|accessdate=2 September 2015}}</ref> Some plaintiffs alleged they had used cotton wool or cigarette butts as ear protection.<ref>{{cite news|url=http://www.irishtimes.com/news/retired-brigadier-general-settles-army-deafness-claim-1.212111|title=Retired brigadier general settles Army deafness claim|date=31 July 1999|work=]|accessdate=2 September 2015}}</ref><ref name="Clonan2013">{{cite book|last=Clonan|first=Tom|title=Whistleblower, Soldier, Spy: A Journey into the Dark Heart of the Global War on Terror|url=http://books.google.com/books?id=AKx8AwAAQBAJ&pg=PT69|accessdate=2 September 2015|date=2013-11-15|publisher=Liberties Press Limited|isbn=9781909718333|page=69}}</ref> The government in 1998 alleged that all soldiers had been issued with ]s from 1952 until 1987 in conformity to best practice of the time, although the level of protection they provided was later recognised as inadequate;<ref name="smith1998"/> that the decision on whether to avail of earplugs was left to the discretion of the soldier rather than being commanded by a superior;<ref name="smith1998"/> 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.<ref name="smith1998"/> From 1952, army regulations required the use of ear protection on ]s and in ] drill.<ref name="smith1998">{{cite web|url=https://www.oireachtas.ie/en/debates/debate/dail/1998-05-06/17/|title=Civil Liability (Assessment of Hearing Injury) Bill 1998: Second Stage|last=Smith|first=Michael|date=6 May 1998|work=Dáil Éireann debates|pages=cc.859–870|access-date=2 September 2015}}</ref><ref name="Mckittrick1997">{{cite news|url=https://www.independent.co.uk/news/nation-shell-shocked-by-soldiers-deafness-claims-1290212.html|title=Nation shell-shocked by soldiers' deafness claims|last=Mckittrick|first=David|date=22 December 1997|work=]|access-date=1 October 2015|location=London}}</ref> Initially, ] was recommended; in 1961, cotton wool moistened with ]; and from 1972 plastic Sonex ] were provided.<ref name="smith1998"/><ref name="Mckittrick1997"/> In 1987 a comprehensive regime of protection was introduced with modern protection and safety protocols.<ref name="smith1998"/><ref name="Mckittrick1997"/> Some plaintiffs alleged they had used cigarette butts as ear protection.<ref>{{cite news|url=http://www.irishtimes.com/news/retired-brigadier-general-settles-army-deafness-claim-1.212111|title=Retired brigadier general settles Army deafness claim|date=31 July 1999|newspaper=]|access-date=2 September 2015}}</ref><ref name="Clonan2013">{{cite book|last=Clonan|first=Tom|title=Whistleblower, Soldier, Spy: A Journey into the Dark Heart of the Global War on Terror|url=https://books.google.com/books?id=AKx8AwAAQBAJ&pg=PT69|access-date=2 September 2015|date=2013-11-15|publisher=Liberties Press Limited|isbn=9781909718333|page=69}}</ref> 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;<ref name="smith1998"/> that the decision on whether to avail of earplugs was left to the discretion of the soldier rather than being commanded by a superior;<ref name="smith1998"/> 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.<ref name="smith1998"/>


==Legal proceedings== ==Legal proceedings==
Several ]s were brought between 1992 and 1996 by litigants represented by ]s on a ] basis.<ref name="lrc1s38">LRC 76-2005 §1.38</ref> ], the ] in 1998, said:<ref name="smith1998"/> Several ] were brought between 1992 and 1996 by litigants represented by ]s on a ] basis.<ref name="lrc1s38">LRC 76-2005 §1.38</ref> ], the ] in 1998, said:<ref name="smith1998"/>
: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 ]. 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. :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 ]. 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. :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 ] showed over 1,000 cases settled across many units of the Defence Forces.<ref name="dail19971217">{{cite web|url=http://debates.oireachtas.ie/dail/1997/12/17/00014.asp|title=Priority Questions. - Hearing Impairment Claims.|date=17 December 1997|work=Dáil Éireann debates|accessdate=2 September 2015}}</ref> The government adopted a strategy of contesting every claim until a 1997 ] decision. After this, the ] facilitated negotiations between the ] and the Department of Defence on the one hand, and the main solicitors' firms representing claimants on the other,<ref>{{cite journal|date=July 2000|title=Army deafness litigation update|journal=Law Society Gazette|publisher=Law Society of Ireland|location=Dublin|volume=94|issue=6|page=7|url=http://www.lawsociety.ie/Documents/Gazette/Gazette%202000/july2000.pdf#page=7}}</ref> which led to a suspension of court proceedings while a ] expert group developed a standardised metric for assessing hearing loss.<ref name="lrc1s39">LRC 76-2005 §1.39</ref> This group's 1998 "Green Book" report informed the Civil Liability (Assessment of Hearing Injury) Act, 1998.<ref name="lrc1s39"/> Subsequently, the Supreme Court advised the government to assign standardised rates of compensation for the various levels of hearing loss.<ref name="lrc1s40">LRC 76-2005 §1.40</ref> The resulting proposal was modified by the the Supreme Court in December 1999, setting a formula of ]750 per degree of deafness attained at age 60.<ref name="lrc1s40"/><ref>{{cite news|url=http://www.rte.ie/news/1999/1207/4590-deafness/|title=New army deafness guidelines will save State millions|date=7 December 1999|work=]|accessdate=2 September 2015}}</ref> This was the basis for the Early Settlement Scheme used for most claims.<ref name="prd2003n054">{{cite web|url=http://www.defence.ie/website.nsf/Release+ID/6307B7702948988D80256D8000327FFA?OpenDocument|title=Significant progress in tackling hearing loss compensation claims|year=2003|work=Press Releases|publisher=Department of Defence|accessdate=2 September 2015}}</ref> A December 1997 written answer to a ] showed over 1,000 cases settled across many units of the Defence Forces.<ref name="dail19971217">{{cite web|url=https://www.oireachtas.ie/en/debates/debate/dail/1997-12-17/13/|title=Priority Questions. - Hearing Impairment Claims.|date=17 December 1997|work=Dáil Éireann debates|access-date=2 September 2015}}</ref> The government adopted a strategy of contesting every claim until a 1997 ] decision. After this, the ] facilitated negotiations between the ] and the Department of Defence on the one hand, and the main solicitors' firms representing claimants on the other,<ref>{{cite journal|date=July 2000|title=Army deafness litigation update|journal=Law Society Gazette|publisher=Law Society of Ireland|location=Dublin|volume=94|issue=6|page=7|url=http://www.lawsociety.ie/Documents/Gazette/Gazette%202000/july2000.pdf#page=7}}</ref> which led to a suspension of court proceedings while a ] expert group developed a standardised metric for assessing hearing loss.<ref name="lrc1s39">LRC 76-2005 §1.39</ref> This group's 1998 "Green Book" report informed the Civil Liability (Assessment of Hearing Injury) Act 1998.<ref name="lrc1s39"/> Subsequently, the Supreme Court advised the government to assign standardised rates of compensation for the various levels of hearing loss.<ref name="lrc1s40">LRC 76-2005 §1.40</ref> It also awarded compensation based on predicted future loss of hearing additional to normal ]; opponents criticised this as impossible to quantify.<ref>{{cite news|url=http://www.irishtimes.com/news/army-deafness-claims-may-cost-1bn-after-new-ruling-1.175525|title=Army deafness claims may cost £1bn after new ruling|last=Kennedy|first=Geraldine|date=22 July 1998|newspaper=]|access-date=11 September 2015}}</ref> In December 1999, the Supreme Court accepted the government's formula of ]750 per degree of deafness attained at age 60.<ref name="lrc1s40"/><ref>{{cite news|url=http://www.rte.ie/news/1999/1207/4590-deafness/|title=New army deafness guidelines will save State millions|date=7 December 1999|work=]|access-date=2 September 2015}}</ref> This was the basis for the Early Settlement Scheme used for most claims.<ref name="prd2003n054">{{cite web|url=http://www.defence.ie/website.nsf/Release+ID/6307B7702948988D80256D8000327FFA?OpenDocument|title=Significant progress in tackling hearing loss compensation claims|year=2003|work=Press Releases|publisher=Department of Defence|access-date=2 September 2015}}</ref> 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.<ref>{{cite news|url=http://www.breakingnews.ie/ireland/figures-show-huge-fall-in-value-of-army-deafness-payouts-109377.html|title=Figures show huge fall in value of army deafness payouts|date=12 August 2003|work=BreakingNews.ie|access-date=11 September 2015}}</ref><ref>{{cite web|url=http://www.irishhealth.com/article.html?id=6211|title=Army deafness claims continue|last=Condon|first=Deborah|date=20 August 2004|access-date=11 September 2015}}</ref>


When ] revealed he had brought a suit for hearing loss relating to his ] service, there were calls for him to stand down from the Dáil ] because of a perception of ].<ref>{{cite news|url=http://www.irishtimes.com/news/bell-should-pull-out-of-deafness-hearings-tds-1.129554|title=Bell should pull out of deafness hearings - TDs|last=Haughey|first=Nuala|date=29 January 1998|work=]|accessdate=2 September 2015}}</ref> He remained on the committee until losing his seat in the ].<ref>{{cite web|url=http://oireachtasdebates.oireachtas.ie/Debates%20Authoring/DebatesWebPack.nsf/committeetakes/ACC2002040400002?opendocument|title=2000 Annual Report of the Comptroller and Auditor General and Appropriation Accounts: Prelude|date=4 April 2002|work=Committee of Public Accounts proceedings|publisher=Oireachtas|quote=Members Present: ... Deputy M. Bell,|accessdate=2 September 2015}}</ref> When ] revealed he had brought a suit for hearing loss relating to his ] service, there were calls for him to stand down from the Dáil ] because of a perception of ].<ref>{{cite news|url=http://www.irishtimes.com/news/bell-should-pull-out-of-deafness-hearings-tds-1.129554|title=Bell should pull out of deafness hearings - TDs|last=Haughey|first=Nuala|date=29 January 1998|newspaper=]|access-date=2 September 2015}}</ref> He remained on the committee until losing his seat in the ].<ref>{{cite web|url=http://oireachtasdebates.oireachtas.ie/Debates%20Authoring/DebatesWebPack.nsf/committeetakes/ACC2002040400002?opendocument|title=2000 Annual Report of the Comptroller and Auditor General and Appropriation Accounts: Prelude|date=4 April 2002|work=Committee of Public Accounts proceedings|publisher=Oireachtas|quote=Members Present: ... Deputy M. Bell,|access-date=2 September 2015}}</ref>


In 2000, the ] was empowered to act as the State Claims Agency for ]s 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.<ref name="lrc1s40"/><ref>{{cite web|url=http://debates.oireachtas.ie/dail/2000/10/10/00021.asp#N12|title=National Treasury Management Agency (Amendment) Bill, 2000: Second Stage.|last=McCreevy|first=Charlie |authorlink=Charlie McCreevy |date=10 October 2000|work=Dáil Eireann debates|pages=Vol.524 No.3 p.21|quote=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.|accessdate=2 September 2015}}</ref> In 2002, the minister stated the Early Settlement Scheme would no longer be open to new claimants, as under the ] the issue had been in the public domain for ten years.<ref name="prd2003n054"/> By 2004, 328 claims had been settled in court, with 14,681 claims being settled out of court.<ref>{{cite news |url=http://www.rte.ie/news/2004/0205/deafness.html |title=€273m paid out in army deafness cases |work=RTÉ news |date=5 February 2004}}</ref> It was in 2005 that all outstanding army deafness claims were transferred to the State Claims Agency.<ref name="dail20091119"/> This resulted in a reduction of 80% in the ratio of ].<ref name="ind2029321"/> In 2000, the ] was empowered to act as the State Claims Agency for ] 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.<ref name="lrc1s40"/><ref>{{cite web|url=https://www.oireachtas.ie/en/debates/debate/dail/2000-10-10/20/#N12|title=National Treasury Management Agency (Amendment) Bill 2000: Second Stage.|last=McCreevy|first=Charlie |author-link=Charlie McCreevy |date=10 October 2000|work=Dáil Éireann debates|pages=Vol.524 No.3 p.21|quote=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.|access-date=2 September 2015}}</ref> In 2002, the minister stated the Early Settlement Scheme would no longer be open to new claimants, as under the ] the issue had been in the public domain for ten years.<ref name="prd2003n054"/> By 2004, 328 claims had been settled in court, with 14,681 claims being settled out of court.<ref>{{cite news |url=http://www.rte.ie/news/2004/0205/deafness.html |title=€273m paid out in army deafness cases |work=RTÉ news |date=5 February 2004}}</ref> It was in 2005 that all outstanding army deafness claims were transferred to the State Claims Agency.<ref name="dail20091119"/> This resulted in a reduction of 80% in the ratio of ].<ref name="ind2029321"/>


==Consequences== ==Consequences==

===Cost=== ===Cost===
Defence minister ] 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.<ref name="dail20091119">{{cite web|url=http://debates.oireachtas.ie/dail/2009/11/19/00046.asp|title=Written Answers - Hearing Impairment Claims.|date=19 November 2009|work=Dáil Eireann debates|publisher=Oireachtas|accessdate=2 September 2015}}</ref><ref name="ind2029321">{{cite news|url=http://www.independent.ie/national-news/army-deafness-saga-finally-nears-an-end-2029321.html|title=Army deafness saga finally nears an end|last=Drennan|first=John|date=24 January 2010|work=]|accessdate=2 September 2015}}</ref> There were then 417 "active cases" with an estimated future cost of about €8m.<ref name="dail20091119"/> Before the 1998 act was passed, the Committee of Public Accounts had estimated a worst-case total cost of £5.5bn,<ref name="ind26192369"/> while the Department of Defence had estimated €1bn.<ref name="prd2003n054"/> Defence minister ] 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.<ref name="dail20091119">{{cite web|url=https://www.oireachtas.ie/en/debates/debate/dail/2009-11-19/45/|title=Written Answers - Hearing Impairment Claims.|date=19 November 2009|work=Dáil Éireann debates|publisher=Oireachtas|access-date=2 September 2015}}</ref><ref name="ind2029321">{{cite news|url=http://www.independent.ie/national-news/army-deafness-saga-finally-nears-an-end-2029321.html|title=Army deafness saga finally nears an end|last=Drennan|first=John|date=24 January 2010|work=]|access-date=2 September 2015}}</ref> There were then 417 "active cases" with an estimated future cost of about €8m.<ref name="dail20091119"/> Before the 1998 act was passed, the Public Accounts Committee had estimated a worst-case total cost of £5.5bn,<ref name="ind26192369"/> while the Department of Defence had estimated €1bn.<ref name="prd2003n054"/>


In 2006 it was alleged that solicitors had double-charged fees in some 152 claims, although no charges were brought.<ref>{{cite news |url=http://www.independent.ie/national-news/solicitors-unable-to-give-army-deafness-bill-copies-88145.html |title=Solicitors 'unable' to give Army deafness bill copies |first=Anne-Marie |last=Walsh |date=15 July 2006 |newspaper=Irish Independent |accessdate=2 September 2015 }}</ref> In 2006 it was alleged that solicitors had double-charged fees in some 152 claims, although no charges were brought.<ref>{{cite news |url=http://www.independent.ie/national-news/solicitors-unable-to-give-army-deafness-bill-copies-88145.html |title=Solicitors 'unable' to give Army deafness bill copies |first=Anne-Marie |last=Walsh |date=15 July 2006 |newspaper=Irish Independent |access-date=2 September 2015 }}</ref>


===Other effects=== ===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.<ref name="ind26192369">{{cite news|url=http://www.independent.ie/irish-news/5bn-and-rising-bill-for-army-deafness-26192369.html|title=£5bn and rising: bill for Army `deafness'|date=6 March 1998|work=]|accessdate=2 September 2015}}</ref> The large number of claims contributed to a fall in public respect for the Defence Forces and a drop in morale of serving members.<ref name="ind26192369">{{cite news|url=http://www.independent.ie/irish-news/5bn-and-rising-bill-for-army-deafness-26192369.html|title=£5bn and rising: bill for Army 'deafness'|date=6 March 1998|work=]|access-date=2 September 2015}}</ref> ], 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."<ref name="Mckittrick1997"/>

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:<ref name="Hosier2014">{{cite book|last=Hosier|first=Maeve|title=The Regulation of the Legal Profession in Ireland|url=https://books.google.com/books?id=YOlLBAAAQBAJ&pg=PT80|access-date=11 September 2015|date=2014-08-17|publisher=Quid Pro Books|isbn=9781610272599|pages=79–80}}</ref><ref>{{cite web|url=http://www.irishstatutebook.ie/eli/2002/act/19/section/4/enacted/en/html|title=Solicitors (Amendment) Act 2002, Section 4|work=]|access-date=11 September 2015}}</ref>
: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== ==Footnotes==
Line 28: Line 37:


==References== ==References==

===Sources=== ===Sources===
* {{cite web|url=http://health.gov.ie/wp-content/uploads/2014/03/Hearing-Disability-Assessment-Report-of-the-Expert-Hearing-Group.pdf|title=Hearing Disability Assessment|author=Expert Hearing Group|year=1998|publisher=]|accessdate=2 September 2015|format=PDF}} * {{cite web|url=http://health.gov.ie/wp-content/uploads/2014/03/Hearing-Disability-Assessment-Report-of-the-Expert-Hearing-Group.pdf|title=Hearing Disability Assessment|author=Expert Hearing Group|year=1998|publisher=]|access-date=2 September 2015}}
* {{cite book |author=Dáil Éireann Committee of Public Accounts |title=First Interim Report on the Appropriation Accounts 1996 |series=Government publications |volume=Pn.5079 |date=3 March 1998 |publisher=Stationery Office |isbn=0707650119 |location=Dublin |url=http://opac.oireachtas.ie/AWData/Library3/Library2/DL031178.pdf |access-date=23 November 2015}}
* {{cite web|url=http://debates.oireachtas.ie/bills/1998/|title=Bills Yearly Index - 1998|work=Oireachtas debates|publisher=Oireachtas|pages=Civil Liability (Assessment of Hearing Injury) Bill, 1998|accessdate=2 September 2015|nopp=Y}}
* {{cite web|url=http://www.irishstatutebook.ie/eli/1998/act/12/enacted/en/html|title=Civil Liability (Assessment of Hearing Injury) Act, 1998|work=]|accessdate=2 September 2015}} * {{cite web|archive-url=https://web.archive.org/web/20110110195457/http://debates.oireachtas.ie/bills/1998/ |archive-date=10 January 2011 |url=http://debates.oireachtas.ie/bills/1998/|title=Bills Yearly Index - 1998|work=Oireachtas debates|publisher=Oireachtas|pages=Civil Liability (Assessment of Hearing Injury) Bill 1998|access-date=2 September 2015|no-pp=y}}
* {{cite web|url=http://debates.oireachtas.ie/bills/2000/|title=Bills Yearly Index - 2000|work=Oireachtas debates|publisher=Oireachtas|pages=National Treasury Management Agency (Amendment) Bill, 2000|accessdate=2 September 2015|nopp=Y}} * {{cite web|url=http://www.irishstatutebook.ie/eli/1998/act/12/enacted/en/html|title=Civil Liability (Assessment of Hearing Injury) Act 1998|work=]|access-date=2 September 2015}}
* {{cite web|url=http://www.irishstatutebook.ie/eli/2000/act/39/enacted/en/print#part2|title=National Treasury Management Agency (Amendment) Act, 2000|work=]|pages=Part 2: State Claims Agency|accessdate=2 September 2015|nopp=Y}} * {{cite web|archive-url=https://web.archive.org/web/20130615052252/http://debates.oireachtas.ie/bills/2000/ |archive-date=15 June 2013 |url=http://debates.oireachtas.ie/bills/2000/|title=Bills Yearly Index - 2000|work=Oireachtas debates|publisher=Oireachtas|pages=National Treasury Management Agency (Amendment) Bill 2000|access-date=2 September 2015|no-pp=y}}
* {{cite web|url=http://www.irishstatutebook.ie/eli/2000/act/39/enacted/en/print#part2|title=National Treasury Management Agency (Amendment) Act 2000|work=]|pages=Part 2: State Claims Agency|access-date=2 September 2015|no-pp=y}}
* {{cite journal|year=2005|title=Multi-Party Litigation|journal=Law Reform Commission Reports|publisher=]|location=Dublin|volume=LRC 76-2005|pages=15–16|issn=1393-3132|url=http://www.lawreform.ie/_fileupload/Reports/Report%20Multi-party%20litigation.pdf#page=25|format=PDF}} * {{cite journal|year=2005|title=Multi-Party Litigation|journal=Law Reform Commission Reports|publisher=]|location=Dublin|volume=LRC 76-2005|pages=15–16|issn=1393-3132|url=http://www.lawreform.ie/_fileupload/Reports/Report%20Multi-party%20litigation.pdf#page=25|format=PDF}}

===Court cases===
*{{cite BAILII |litigants=Whitely v. Minister for Defence |year=1997 |court=IEHC |num=92 |parallelcite= 4 IR 442; 2 ILRM 416 |date=10 June 1997 |courtname=auto}}
*{{cite BAILII |litigants=Gardiner v. Minister for Defence |year=1998 |court=IEHC |num=200 |date=13 March 1998 |courtname=auto}}
*{{cite BAILII |litigants=Hanley v. Minister for Defence |year=1998 |court=IEHC |num=118 |parallelcite= 4 IR 496 |date=21 July 1998 |courtname=auto}}
*{{cite BAILII |litigants=Smith v. Minister for Defence |year=1998 |court=IESC |num=36 |date=4 November 1998 |courtname=auto}}
*{{cite BAILII |litigants=Flood v. Minister for Defence |year=1998 |court=IEHC |num=163 |date=16 November 1998 |courtname=auto}}
*{{cite BAILII |litigants=Simcox v. Minister for Defence |year=1999 |court=IEHC |num=95 |date=4 February 1999 |courtname=auto}}
*{{cite BAILII |litigants=Kerwick v. Minister for Defence |year=1999 |court=IEHC |num=133 |date=19 March 1999 |courtname=auto}}
*{{cite BAILII |litigants=Farrell v. Minister For Defence |year=1999 |court=IEHC |num=16 |date=16 July 1999 |courtname=auto}}
*{{cite BAILII |litigants=Hanley v. Minister for Defence |year=1999 |court=IESC |num=86 |parallelcite= 4 IR 393; 2 ILRM 276 |date=7 December 1999 |courtname=auto}}
*{{cite BAILII |litigants=Byrne v. Minister for Defence & Ors |year=2005 |court=IEHC |num=147 |parallelcite= 1 IR 577 |date=26 April 2005 |courtname=auto}}


===Citations=== ===Citations===
{{reflist}} {{reflist}}


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Latest revision as of 20:27, 20 June 2023

The army deafness 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.

Background

From 1952, army regulations required the use of ear protection on shooting ranges and in artillery drill. Initially, cotton wool was recommended; in 1961, cotton wool moistened with Vaseline; and from 1972 plastic Sonex earplugs were provided. In 1987 a comprehensive regime of protection was introduced with modern protection and safety protocols. Some plaintiffs alleged they had used cigarette butts as ear protection. 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; that the decision on whether to avail of earplugs was left to the discretion of the soldier rather than being commanded by a superior; 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.

Legal proceedings

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

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. 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, which led to a suspension of court proceedings while a Department of Health expert group developed a standardised metric for assessing hearing loss. This group's 1998 "Green Book" report informed the Civil Liability (Assessment of Hearing Injury) Act 1998. Subsequently, the Supreme Court advised the government to assign standardised rates of compensation for the various levels of hearing loss. 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. In December 1999, the Supreme Court accepted the government's formula of IR£750 per degree of deafness attained at age 60. This was the basis for the Early Settlement Scheme used for most claims. 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.

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. He remained on the committee until losing his seat in the 2002 general election.

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. 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. By 2004, 328 claims had been settled in court, with 14,681 claims being settled out of court. It was in 2005 that all outstanding army deafness claims were transferred to the State Claims Agency. This resulted in a reduction of 80% in the ratio of legal costs.

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. There were then 417 "active cases" with an estimated future cost of about €8m. Before the 1998 act was passed, the Public Accounts Committee had estimated a worst-case total cost of £5.5bn, while the Department of Defence had estimated €1bn.

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

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. 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."

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:

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", although some claimants were from the Air Corps or Naval Service rather than the Army, and most had partial rather than total hearing loss.

References

Sources

Court cases

Citations

  1. ^ 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. ^ "Priority Questions. - Hearing Impairment Claims". Dáil Éireann debates. 17 December 1997. Retrieved 2 September 2015.
  4. ^ 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. ^ 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. 94 (6). Dublin: Law Society of Ireland: 7. July 2000.
  10. ^ 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. ^ "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. ^ "Written Answers - Hearing Impairment Claims". Dáil Éireann debates. Oireachtas. 19 November 2009. Retrieved 2 September 2015.
  21. ^ Drennan, John (24 January 2010). "Army deafness saga finally nears an end". Irish Independent. Retrieved 2 September 2015.
  22. ^ "£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.
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