Defeat in key case led to `doomsday' Government projections of £2bn for deafness compensation

The Statute of Limitations (Amendment) Act, 1991, removed a three-year limit for bringing personal injury compensation claims…

The Statute of Limitations (Amendment) Act, 1991, removed a three-year limit for bringing personal injury compensation claims, and two consequences have flowed from it. The 1,000 women whose lives were ruined by being infected with hepatitis C in blood transfusions were able to sue for damages.It also opened the way for tens of thousands of former service personnel to sue for hearing damage caused by proximity to gunfire.Some 11,600 serving and former military personnel have already lodged claims or had their cases settled. After a brief lull at the end of last year when a plethora of bad publicity about the claims seemed to slow down the flow of writs, January has brought a renewed flow of up to 150 new claims a week into the Department of Defence.There is now a feeling that the flow of Army hearing claims may be about to accelerate.About 30 per cent of serving personnel are suing or have already sued. An estimated 97 per cent of claims are from the noncommissioned ranks, but claims have been lodged by officers up to the rank of major general (rtd).The former FCA member and Louth Labour TD, Mr Michael Bell, joined the list of claimants last November.An extrapolation of the potential numbers involved in claims covering everyone alive who has served in the regular or reserve Defence Forces would suggest that about 150,000 people might have grounds for initiating action. There is also an expectation of a parallel series of claims for hearing loss as a result of firearms use by gardai.IBEC, the employers' representative association, has also expressed alarm at the developments in the Defence Forces claims. It said industry was already paying £400 million a year in compensation claims and could only expect this to grow rapidly as the lessons of the military claims sank in.From the Department of Defence's perspective, there are three key judgments in respect of hearing claims, those of Kavanagh, Bastick and Naughton.The judgment in the case of Mr Bernard Kavanagh of Kildare was delivered by Judge Johnston on October 17th, 1996. Medical experts called by the Department argued that he suffered only marginal hearing damage, and their tests should suggest he did not have impaired hearing in the normal sense. The expert called by the plaintiff's solicitors disagreed, saying there was impaired hearing.Judge Johnston noted there was "quite clearly a complete contradiction in the medical reports" regarding the evaluation of hearing damage. Yet he was struck by the "absolute honesty" of the plaintiff and his wife.They said his hearing was so reduced they could no longer soci alise together because he was unable to follow conversations; he could not follow his children's conversations; and he had to turn the television up to the point where "your ears were blasted off".Mr Kavanagh also said he suffered from tinnitus, which causes ringing in the ears and for which there is no test to detect it.Judge Johnston awarded Mr Kavanagh £80,250 for the "great and continuing inconvenience and disability to him in his domestic scene".The second key case from the State's point of view was that of Mr James Bastick, a sergeant who left the Army in 1993 at the age of 40 because of ill-health unrelated to hearing problems.Mr Bastick was found to have fairly normal hearing for his age. He did have a slight loss of hearing at frequencies above the normal tonal range of human conversation, which makes it difficult for him to hear conversation in a crowded situation.Judge Barron accepted it was a cause of embarrassment that Mr Bastick should have to ask people continuously to speak up. He also accepted that Mr Bastick suffered from tinnitus which affected him badly at night and caused him loss of sleep and depression. The case resulted in a payment of £45,000.The judgment which threw the Department's legal strategy into disarray was that of Mr John Naughton, a retired soldier who is still living in quarters in the Curragh camp.The court accepted Mr Naugh ton had no hearing loss and that he had attempted to falsify an audiogram test. Judge Moriarty accepted Mr Naughton had "contrived and inflated" his test results. Another test using electrical impulses from the brain showed his hearing was normal.The judge found there was no evidence of the "high-tone hearing loss" in this case. He noted that while Mr Naughton was giving evidence complaining of the effects of tinnitus, he was not distracted by the sound of a noisy electric fan behind him in the courtroom or the "considerable banging" by workmen in the nextroom in the Aras Ui Dalaigh building while under examination by counsel.The judge also noted that during his service Mr Naughton had made four previous compensation claims: two for falling into potholes, one from being required to lift a side of bacon and one against a third-party driver arising from a collision while he was being carried in an Army ambulance.He had received £22,000 in combined damages for the ambulance accident and the second of the pot-hole injuries.However, Judge Moriarty found that, while Mr Naughton had not minimised his complaints, he was not "entirely falsifying his evidence knowingly". He awarded him £24,720.This case was one which the Department had confidently expec ted to win. The judgment and award projected a truly appalling vista where it seemed almost impossible to fight any claim.Although payments for similar cases have fallen to below £10,000 in some, it was the Naughton judgement more than any other which caused Government officials to begin talking about the "doomsday" total compensation figure in the region of £2 billion.