Deaf claims ruling may not be end of battle

A legal source close to the military hearing damages cases has likened the soldiers' claims to the "whiplash" claims arising …

A legal source close to the military hearing damages cases has likened the soldiers' claims to the "whiplash" claims arising from minor car accident injuries. In the early days of "whiplash" injury claims, when the arguments over the effects of alleged spinal injuries were still very unclear, the courts made generous awards based on the potential future medical effects.

The awards eventually settled at around £3,000 for almost every case, regardless of whether there was proof of injury in even the most minor "shunt" accident. The £3,000 is basically a pay-off because insurance companies would have to spend much bigger sums if cases went to court and also because this is roughly the sum that can be reclaimed in the loss of the no-claims discount by their client.

In the first three years when Army hearing claims proliferated, the courts have made awards ranging from £10,000 to £80,000 to soldiers whose hearing is only marginally impaired. In one case, that of James Bastick, a retired soldier in his mid-40s, the court awarded £45,000 even though he was found to have only very marginal hearing impairment.

Wednesday's High Court judgment, in which a 59-year-old former soldier, James Greene of Athlone received £3,000, would seem to mark the end of the big payments for alleged hearing damage.

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Despite a guarded welcome from the Minister of Defence, Mr Smith, neither the Department of Defence nor the soldiers' representatives were prepared to claim outright victory or admit defeat. There are a further 40 cases due before the High Court this week and judgments in these cases will show if the Greene judgment is a watershed.

The soldiers' staff group, the Permanent Defence Forces Other Ranks Representative Association (PDFORRA), has retained senior counsel Mr Adrian Hardiman to examine Wednesday's judgment. It will decide later in the month if it will appeal the judgment to the Supreme Court.

The Department of Defence is also waiting for settlements of next week's claims to see if Wednesday's judgment is being taken as binding by other courts. Although there was no official comment, it is understood the Department is also prepared to go to the Supreme Court in defence of the decision in the Greene case.

The real significance of the Greene case is in its potential benefit to the Exchequer and the economy. If the courts had continued to make awards at the previous rate the State could have been liable to total damages of at least £1.5 billion.

This figure is based on the average settlements and on a projection of claims coming from a third of the 150,000 people who have served in the Defence Forces or the FCA. The biggest, potential total (if they all claimed) arrived at by the Public Accounts Committee was £5.5 billion.

Based on the Greene judgment, the State's current liability from the 10,000 claims already lodged is now being estimated at around £300 million.

The relatively small payment to Mr Greene also raises the hope that many soldiers will agree to the Minister's proposal to set up a compensation board which will hear cases and settle sums at or around that made to Mr Greene. They would also avoid the court process.

The Minister is determined that his Department will continue to fight all court cases. This means that any new claims will not be due for hearing until 2015 at the earliest. If the soldiers opt for payment through a compensation board they could receive settlement within two years.

Despite the initial rush of enthusiasm from the official side, one Government source pointed out that the Greene settlement was, in reality, "not a bargain" from the State's point of view. Mr Greene is 59 and might, under any other circumstances, be regarded as being very fortunate to have only a 2 per cent hearing impairment. There is no question in such cases of the claimants being "deaf" in any accepted sense of the word. Yet Mr Greene was still awarded £3,000 from State funds. One source made the point that there is a legitimate comparison between hearing and sight impairment. The equivalent 2 per cent loss of perfect sight at the age of 59, in any person, would be regarded as a sign of excellent health and vision. The source said that in any other country a person claiming damages from the State for only 2 per cent hearing loss at the age of 59 would receive nothing. The main significance of the Greene judgment, according to sources, was that it showed the acceptance of the State's set of criteria on judging hearing impairment over experts retained by litigants.

The State's criteria are in a green-covered booklet which was referred to in the High Court as the "Green Book". The litigants' experts' criteria was in a blue-covered booklet which was referred to as the "Blue Book". Both books were prepared by teams of senior medical figures. On Wednesday the "Green Book", supported in evidence by an international authority, Prof PW Alberti, won the first round. Next week could see a swift reassembling of the "Blue Book" forces, with the possibility of a major counter-attack.