The cost of the Army deafness cases going through the courts could be considerably reduced if the Government conducted them differently, according to lawyers involved in the cases.
In most compensation cases a number of things are agreed between the two sides, and then they debate whether an injury has been received, who was responsible and the amount of compensation, if any, due as a result.
However, according to lawyers representing some of the soldiers, frequently the Government starts its defence by demanding proof that the plaintiff was in the Army at all; that, if so, it was responsible for his safety; the length of his period of service; that he was exposed to noise from weapons; that such noise causes ear damage; and that he did not wear ear protection.
The plaintiff then must go on to prove that he suffered ear damage, and the extent of it. These proofs require either witnesses or documents to be brought to court. If the court has to order the document (such as the soldier's service record) to be produced through a motion for discovery, this takes up court time and costs money.
Each witness has expenses and, including specialists such as acoustic engineers and doctors, these run on average to £1,500 a day. Yet many cases are settled on the morning they are due in court, so the witnesses do not have to give their evidence. But they have to be paid for turning up.
The kind of items which have to be produced include, not only up to 14 Army documents, but up to five different types of ear protector, various EU regulations and directives and Irish safety, health and welfare legislation and regulations.
The plaintiff can also be asked to prove, through calling a specialist witness, that the British, Belgian, Swiss, Danish, French and US armies all issued their members with ear protectors as early as the 1970s.
Lawyers involved in these cases, which risk clogging up the courts, would prefer if, as far as possible, they were dealt with on a "job lot" basis, following an admission of liability. One of the High Courts has been hearing these cases for most of this legal term.
Such an admission, they say, would not mean that every claim was admitted, but that the principle that the Department of Defence had a duty of care to its soldiers and that it knew that weapons could cause ear damage (as is documented in its own regulations) was accepted. The question as to which individuals suffered ear damage, and the extent of that damage, if any, could then be disputed.
The Government has also been disputing the means of measurement of hearing loss being brought into court by the soldiers, which is that based on an EU directive of 1986. The State argues instead in favour of the American or AMA system, which is based on a far higher level of disability.
However, within the Army soldiers' hearing is graded according to a system far more sensitive than the American one advocated by the State in court. Those who fail the tests under the Army system are considered ineligible for certain duties or promotion, and can even be discharged on medical grounds.