Ireland's Child Care Institutions during the 20th. Century. Fo'T: The most vivid and passionate stories - banished babies, cruel orphanages, old abuses of power - have concerned things that went unnoticed, or at least unarticulated, at the time. News has often had to be redefined, not as the latest sensation but as that which everybody knew all along yet could not say.

Wednesday, June 16, 1999

Compassion comes with uncertain cost

Sunday Independent May 16th 1999

Joseph O'Malley, political correspondent, on the implications of the Government's apology to abuse victims

WHEN Bertie Ahern, on behalf of the State and its citizens, delivered the Government's ``sincere and long overdue apology'' to the victims of childhood abuse in industrial schools and orphanages, he was showing compassion, and pleading guilty.

By agreeing to amend the statute of limitations, the Government was also opening the way for a spate of compensation claims. The legal change will allow the victims of childhood sexual abuse time to sue the Catholic Church and the State on an issue the State is badly placed to defend, given its own admission of liability.

All parties in the Dáil fully approved of the Government decision. The only unresolved question is how much it will cost the taxpayers. They must pay up for the State's past negligence, a negligence that society at large tolerated, if not condoned.

The Government response marked a radical change in approach from that previously adopted on negligence issues. On army deafness, it has contested the claims made. On Hepatitis C, resulting from contaminated blood products, the State denied liability, and refused to apologise. The result was some bitterly contested legal battles, like the McCole case.

Its tough stance also reflected the Government's dilemma, given its dual role. The Government has to protect the taxpayers' interest by fighting to keep compensation payments down. But equally, it has a responsibility to the victims of State negligence. And, balancing compassion with concern for the taxpayers' welfare is never easy to achieve, as former Minister for Health, Michael Noonan discovered two years ago over the issue of Hepatitis C.

On Tuesday, the Government, given the weight of evidence, had little choice but to apologise, and remove the legal impediment to claims for compensation. However, it confined the proposed change in the statute of limitations provision to cases of sexual abuse. In doing so, it has left the Law Reform Commission to examine the question of physical childhood abuse, and make recommendations on how this might best be handled.

When the Commission on Child Abuse set up by the Government reports in three months' time, the dimensions of the problem should be much clearer. At present there are some 174 compensation cases seeking damages for abuse, listed for hearing before the courts. But after the Dail amends the law to facilitate easier access to the court for abuse victims, the number of claims is expected to soar.

For the Government, it revives the question of how best to handle the spate of legal actions that both the State and the Catholic Church will have to defend. Over a 40 year period, some 42,000 children went through industrial schools, and one of the first decisions of Government may well be to try and ensure that compensation claims are handled by a tribunal, rather than through the courts, in a bid to keep both awards and legal fees down from the outset. However, this cannot be legally enforced.

The parallels with the army deafness claims are ominous, not least the difficulty in assessing the likely cost. Fear of a repetition of that debacle has haunted the Government as it prepared to tackle this issue in recent months. Ministers fully appreciate the grip of the compensation culture on Irish society.

The army deafness claims illustrate the point. Few can yet agree on the likely cost of compensation payments. Estimates have ranged at various times from £5.5bn the Committee of Public Accounts; £4.5bn Department of Finance; £350m Department of Defence; and some £100m the Law Society, a figure which was later withdrawn.

In the Dáil in February, Defence Minister Michael Smith said some 13,880 deafness claims had been received from current and former members. Almost 4,000 of these had come from serving members of the Defence Forces, more than one third of its current strength.

At that date, some £51m had been paid out in awards, with a further £14m in legal costs, or some 27 per cent of the sum awarded. If the Minister's proposals for a compensation tribunal are agreed, then almost certainly the costs to the taxpayer are likely to be much lower than the worst case scenario outlined.

Under the court system it would take up to 17 years to process the outstanding claims, as compared with the three years under the compensation tribunal now proposed by the Minister. If the settlements including legal costs were in line with those already agreed, and assuming no further claims, then the total cost of compensation might come to some £365m for army deafness. Or so the Government hopes.

The difference in the estimates made at various times for settling the claims is a measure of the uncertainty surrounding the cost of compensation, both in this and other areas. A year ago the cost of compensation payments before the Hepatitis C tribunal was projected to reach some £335m.

This figure is set to increase further, following a judgement in the High Court last month. This increased an award of £165,000 for ``general damages'' from the tribunal by a further £100,000, and is set to have major implications for pending appeals.

The Government last week had little choice but to accept its responsibility in relation to the damning evidence of ill treatment and abuse of those in industrial schools over many years, documented in RTE's States of Fear. But having done so by way of apology, and established a Commission as a ``healing forum'' for the victims of the State's own neglect, the uncertain financial consequences still remain to be counted.

© Irish Independent &