Criticism falls on deaf ears

Ninety-five per cent of soldiers in one Irish army barracks are claiming compensation for deafness – and Defence Minister Michael Smith maintains that the country's legal profession and the judiciary are mainly to blame.

Smith argues that the flood of claims, which now stands at 11,500 – more than the total strength of the Irish army – has been provoked by the “aggressive advertising” of some solicitors and over-generous awards by some judges. He warns that if this continues, the Irish taxpayer could end up facing a bill of IR£1bn in compensation pay-outs and legal fees.

The minister's latest broadside, in what is becoming an increasingly acrimonious public debate, prompted an unprecedented reaction from the judiciary. Three senior judges of the Irish High Court, which has been dealing with the cases, sought a meeting with Justice Minister John O'Donoghue to express their concern about the criticism of court decisions.

The High Court president Mr Justice Morris, together with colleagues Mr Justice Barr and Mr Justice O'Donovan, is understood to have warned that the repeated questioning of compensation awards by ministers, army chiefs and others, could have the effect of undermining public confidence in the courts.

The compensation claims arise from the fact that for about 30 years, until the late 1980s, the Irish army were not provided with ear protection against excessive noise, or required by regulations to take personal precautions. As a result, some suffered hearing damage on firing ranges and during army exercises.

A three-year legal limit for bringing personal injury claims was removed by government in 1991, and the first significant army deafness case reached the courts five years later. The claimant was awarded IR£80,000, setting off a flood of similar claims from former and serving members of the defence forces.

So far, according to the latest figures from the Department of Defence in Dublin, IR£63m has been paid out in settlement of 2,400 claims. Several other awards are under appeal, with IR£70m set aside for pay-outs this year.

The cost in legal fees so far is IR£13m. One firm of solicitors in Newbridge, County Kildare – next door to the main army camp, the Curragh – has collected IR£5m for handling around 600 compensation claims and has a further 600 cases on its books. Other firms across the country are also processing claims on behalf of soldiers and some sources estimate that the final legal bill could reach IR£50m.

Smith insists that many of the claims are spurious, encouraged by a minority of solicitors who advertise that they are prepared to take cases on a no win-no fee basis. The Irish army has been made an international laughing stock, he adds, citing some staggering statistics: 95 per cent of soldiers in a Wexford barracks have lodged deafness compensation claims, 83 per cent in a barracks in Bandon, County Cork, and 72 per cent in Limerick's Sarsfield Barracks.

The Irish Law Society takes issue with much of the minister's criticism, arguing that the approach to cases taken by the Department of Defence adds to the legal costs. The Department, it says, has been “consistently denying responsibility up to the door of the court and then conceding”. If liability was conceded earlier, costs would significantly be reduced.

However, as a result of the controversy, the society is supporting government legislation which will ban personal injury solicitors from advertising, admitting that the ambulance chasing image has damaged the profession's public standing in recent years.

Not all solicitors agree with the society's decision to support the advertising ban. John Schutte, the Dublin-based co-ordinator of the Association of Personal Injury Lawyers, claims that the ban is unconstitutional and anti-competitive. The army cases are being used as a smokescreen, he adds, and the ban will make it difficult for people taking an action against the state to find personal injury lawyers.

Over the past two years, the level of court awards in army deafness cases has fallen by half, from an average of IR£35,000. Critics claim that the work should be taken out of the courts and given to a special claims tribunal, which would be faster and cheaper. Smith says he would support such a tribunal, provided “a level of fair compensation” was agreed in advance with claimants and their solicitors.

But what is “fair compensation”? In the latest High Court case, a private who gave up his army career because of post traumatic stress disorder, was awarded IR£218,900. The judge involved, Mr Justice Rudd, warned against “misinformed” criticism of the award, saying it lowered public confidence in the courts.

But that did not deter the embattled Irish Defence Minister. With 19 similar cases in the pipeline and a rush of new ones expected, he said he was “greatly worried” by the impact of such large awards and would be appealing the decision to the Irish Supreme Court.