The final bill for Army deafness cases could be as high as £1.5 billion and he had never, in his political life, faced anything like the scale of the problem, the Minister for Defence, Mr Smith, told the High Court yesterday.
In a rare personal appearance in court by a Minister, Mr Smith said he "shuddered" at the suggestion that it could take more than 17 years to dispose of the Army deafness claims at the rate at which they were now being dealt with by the courts.
He said he was anxious to attend a Cabinet meeting yesterday afternoon to put options to Government for dealing with the huge number of Army deafness cases before the courts. But as yesterday's hearing continued until almost 4.30 p.m., it was not clear whether he would be in time to do so. The Minister spent some 2 1/2 hours in the witness box.
Following a day-long hearing, Mr Justice Johnson said he would give a decision today on an application by the Minister to adjourn all Army deafness cases until October. He was told that Army deafness cases could cost £1.5 billion.
The High Court is scheduled to resume hearing the cases today following a successful application by the Minister in February for an adjournment until after Easter. A decision as to what will happen to these cases must await today's decision.
Several legal teams representing various solicitors acting for Army personnel opposed yesterday's application by the Minister.
Opening the application on behalf of the Minister, Mr James Nugent SC, said that, in financial terms, the extent of the Army deafness cases created a budgetary crisis.
He appreciated that there were people who were anxious to get their cases on and that justice delayed was justice denied. But the application was made in the public interest.
The importance of the situation was reflected in the fact that the Minister had missed a Government meeting to come to court to give evidence.
Some 1,500 cases had been dealt with, while there were 10,500 cases on hand and others were still coming in. Since January, 1,300 cases had come in. It was vital that the State was in a position to deal with the cases as they should be dealt with. The State's position had to be completely clarified.
Mr Stephen O'Neill, a senior official in the Department of Finance, said the Department had provided £88 million this year for the cases. It had provided £90 million for 1999, and a further £90 million for 2000.
In his evidence, the Minister said, since his appointment in October last, he had been faced with what could be called a "poisoned chalice". There was the potential cost of the claims to the Exchequer and the damage to the morale of the Defence Forces. If one combined the two, there was "a pretty lethal problem".
He would do everything possible to have genuine claims dealt with and get them out of the way. It was with the greatest reluctance that he was in court seeking an adjournment to give the Government time to assess the implications of what was the best way to go forward.
It had become clear that what was needed was an Irish standard in relation to Army deafness. A report from an interdepartmental group of experts had become available to him on April 9th, and he had to recommend a course to Government.
No country in the world had faced proportionately such a huge number of claims. He was now in a position to go to the Government to make proposals which, hopefully, would be agreed.
Mr Smith said he was anxious that a solution be produced which was genuine and affordable. The vast majority of members of the Defence Forces who had contacted him had been in favour of his policy and had indicated there had been no damage to their hearing.
Mr Ronnie Robbins SC, for a number of plaintiffs, referred to Army orders made in 1952, 1955, 1962 and 1973 relating to the provision of ear protection for soldiers.
Mr Smith said he was aware the government in the 1960s had provided £2 million to the Department to purchase ear equipment for the Defence Forces. The Minister said that, following the findings of a board set up in 1986, there was a significant upgrading in ear protection facilities for members of the Army.
Answering Mr Robbins, he said the average hearing loss award in 1995 was £35,000 and legal costs were £15,000, which brought the average claim to £50,000. The current average was £18,000. That had virtually halved the average award made two years previously.
Mr Robbins said the Garda Special Branch had been provided with ear muffs in the early 1980s and he asked why the Army had not done likewise. Mr Smith said he did not have an explanation.
Counsel asked about soldiers who had come back from England and NATO and who had been disciplined for wearing ear protection. The Minister said he had heard of one case.
Mr Robbins asked if there had been a case in which a soldier had put green tape on coloured ear muffs so that the commanding officer would not see them. The Minister said he was not aware of that.
Mr Robbins asked if the Minister was aware evidence had been given in a case that some of the soldiers complaining of ringing in their ears had been told to get sheep's wool from the nearest fence. That was the way these men were ridiculed.
The Minister said he had not ridiculed them and he did not want to stand in the way of anybody pursuing their constitutional rights.
Cross-examined by Mr John Sweetman SC, for other claimants, Mr Smith said the best way to defend the rights of those who had proper claims was to help put in a system which would process them over a short period. He would "shudder to think" that the matter would be delayed for a number of years.
The Minister said he had no argument with the judicial system in terms of the awards given. His problem was that he felt that, in cases of minor hearing loss and the type of compensation given, some of the inconsistencies might have enticed other claims to be made.
In relation to ear protection, his information seemed to indicate the practices in this country were not significantly different from those in other countries.
Mr Padraig McCartan SC, also for a number of plaintiffs, asked if the "budgetary catastrophe" was still a ground for seeking an adjournment. The Minister said it was not but any decision taken now would impact on the future.
Asked where was the budgetary problem between now and October, the Minister said that if they were talking about 24 cases being heard each week, it was clear there was a real budgetary problem. But he must fight around the Cabinet table for those resources and look at the wider problem.
Answering Mr Alan Mahon SC, also for plaintiffs, the Minister said there was an array of different components which the Government needed time to consider.