An open letter to Deputy Cathal Berry TD asking why he did not respond to requests for assistance seeking medical help for injured Irish Air Corps chemical exposure survivors?

10th January 2021

Dear Deputy Berry,

Exactly six months ago on the 10th of June 2020, I  wrote a registered letter to you asking for your assistance obtaining medical interventions for chronically ill Irish Air Corps personnel in an effort to reduce unnecessary suffering & untimely deaths.

I am disappointed that after six months I have had absolutely no response or follow up to this letter, not even an basic acknowledgement of receipt.

As a former Defence Forces officer and as a medical doctor I hoped that you were best placed to both understand & champion in the Oireachtas the best interests of those suffering a multitude of health effects from decades of unprotected toxic chemical exposure in what HSA inspectors told me was “the worst case of chemical misuse in the history of the state”.

As I have not heard from you I can only assume that I was wrong and that you either simply do not believe there are any health problems suffered by serving & former Air Corps personnel due workplace chemical exposure, or worse still, you acknowledge personnel have been injured but have no interest in helping them.

I would be grateful if you could please reply publicly to this open letter and while doing so could please answer the following.

  1. Do you believe Irish Air Corps survivors when they tell you that the Health & Safety Authority found serious non compliance with the Safety, Health & Welfare At Work Act 2005 in relation to basic chemical health & safety at Casement Aerodrome and that the same HSA threatened prosecution if their “advice” was not complied with?
  2. Do you accept that the Safety, Health and Welfare At Work Acts 1989 & 2005 were enacted by the state to protect workers from injuries and if an organisation failed to implement these same Acts for decades after they were enacted then the likelihood of injury to personnel is increased?
  3. If you do accept that the Irish Air Corps was not in compliance with the Safety, Health and Welfare At Work Acts 1989 & 2005 and if you do accept that health and safety legislation is enacted to protect workers can you please explain why you have done nothing publically to raise awareness of the Irish Air Corps chemical exposure tragedy since you were elected to Dáil Eireann almost 1 year ago and why you have not mentioned it even once in your numerous chamber utterances or press releases.

I look forward to your response, if any.

Yours sincerely,

Gavin Tobin
Spokesperson
Air Corps Chemical Abuse Survivors

Please find linked below a copy of my original letter to you and also a copy of the Health & Safety letter to the Air Corps dated October 2016 outlining urgent steps to be taken  threatening legal action if they are ignored. The HSA letter was obtained under FOI.

Dáil Éireann Written Answers 08/12/20 – How many Whistle-blowers is the Irish Air Corps currently trying to sack using medical boards?

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

QUESTION NO: 313

To ask the Minister for Defence the number of whistle-blowers the Defence Forces is currently attempting to dismiss using medical boarding procedures; and if he will make a statement on the matter.
[41233/20]

Simon Coveney (Cork South Central, Fine Gael)

The term “whistle-blower” is often used to describe a person who discloses relevant information in relation to relevant wrongdoings, as set out in the Protected Disclosures Act 2014. A person whose information satisfies the criteria set out in the Act also has the benefit of the protections set out in the Act such as protection of identity and protection against penalisation.

Subject to exceptions, a person to whom a protected disclosure is made, and any person to whom a protected disclosure is referred in the performance of that person’s duties, shall not disclose to another person any information that might identify the person by whom the protected disclosure was made.

The making of a protected disclosure does not necessarily prevent the conduct of any other statutory procedure. Any member of the Defence Forces who feels that s/he has been penalised or threatened with penalisation for making a protected disclosure has the right to make a complaint to the Ombudsman for the Defence Forces.

*****

The Irish Air Corps routinely use the Medical Boarding process as a HR tool to dismiss those they perceive as “troublemakers”.

It is interesting to note that Minister Simon Coveney does not use this opportunity to deny that whistle-blowers’ are sacked from the Air Corps using the medical boarding process. 

DELAY – DENY – DIE

Dáil Éireann Written Answers 09/12/20 – Why is death in service rate of (smaller) Irish Air Corps higher than (larger) Naval Service

Catherine Murphy (Kildare North, Social Democrats)

QUESTION NO: 94

To ask the Minister for Defence the reason the rate of death in service of Air Corps personnel over the past 20 years is approximately twice the rate of death of that of Naval Service personnel when the figures are adjusted for service strength; if he and or his predecessors have ever commissioned an analysis of Defence Force personnel death rates and causes of death while in a post service; and if he will make a statement on the matter. [42242/20]

Simon Coveney (Cork South Central, Fine Gael)

The total deaths in service for the Army, Air Corps and Naval Service for the past 20 years as of 31 October is 204, 21 and 16 respectively.

The Deputy will be aware that there is ongoing litigation in relation to allegations regarding the use of certain chemicals in the Air Corps. As the matter is subject to litigation, it would be inappropriate to comment on any speculation which may impact on such litigation.

*****

Catherine Murphy (Kildare North, Social Democrats)

QUESTION NO: 95


To ask the Minister for Defence the breakdown of Air Corps personnel deaths by categories of non-accidental death and accidental death while in service for the past 20 years to date. [42243/20]

Simon Coveney (Cork South Central, Fine Gael)

The total deaths in service for the Air Corps since 2000 as of 30 November 2020 is 21.

The Military Authorities have advised that six of those deaths relate to accidents, four of which occurred while the personnel in question were on duty. Fifteen deaths were non-accident related.

*****

DELAY – DENY – DIE

Dáil Éireann Written Answers 24/11/20 – No plans to offer medical cards to retired Defence Forces personnel

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

QUESTION NO: 897

To ask the Minister for Health his plans to carry out a full health audit of former members of all branches of the Defence Forces with a view to extending a full medical card to all retired Defence Forces members. [38583/20]

Stephen Donnelly (Wicklow, Fianna Fail)

Under the provisions of the Health Act 1970 (as amended), eligibility for health services in Ireland is based primarily on residency and means. The Act provides that persons who are unable, without undue hardship, to arrange GP services for themselves and dependents can qualify for full eligibility (a medical card). The HSE awards medical cards in accordance with the Health Act and assesses applicants on the overall financial situation of the applicant and his or her spouse or dependent.

Every effort is made by the HSE, within the framework of the legislation, to support applicants in applying for a medical card and, in particular, to take full account of any difficult circumstances in the case of applicants who may be in excess of the income guidelines. Social and medical issues are also considered when determining whether undue hardship exists for an individual accessing general practitioner or other medical services and to that end, the HSE may exercise discretion and grant a medical card where an applicant exceeds his or her income threshold. Currently, more than 32% of the population hold eligibility for a medical card.

All persons who are ordinarily resident in the state can apply to the HSE to be determined whether eligible for a medical card.

*****

DELAY – DENY – DIE

Dáil Éireann Written Answers 24/11/20 – No plans by Minister Coveney to audit health of Irish Air Corps personnel despite proven Health & Safety failings

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

QUESTION NO: 464

To ask the Minister for Defence his plans to carry out a full health audit of serving members of the Air Corps. [38582/20]

Simon Coveney (Cork South Central, Fine Gael)

A comprehensive range of primary and secondary medical services are provided to all members of the Permanent Defence Force. This is to ensure that personnel are medically fit to undertake the duties assigned to them, and to treat any medical conditions arising which would inhibit their capacity to undertake such duties. This includes an annual medical examination which comprises a review of the individual’s medical history and a full physical examination.

*****

Air Corps personnel have been badly served by the Medical Corps

  • Treated chemically injured personnel as malingerers.
  • Refused to refer injured personnel for specialised consultant care for complex illnesses.
  • Used the medical boarding system as a “HR resolution tool” to dismiss chemically injured personnel.
  • Disallowed the testimony of expert medical consultants at such medical boards used to dismiss even whistleblowers.
  • Admonished chemically injured personnel for using civilian doctors even sending  military ambulances to retrieve sick personnel from their homes.
  • Attempted to access medical records of chemically injured personnel in civilian hospitals without their consent.

It must be said that the negligence of engineering officers within the Formation Safety Office hindered the work of doctors on the ground at Baldonnel and wider afield. 

If the FSO had carried out chemical risk assessments, conducted with “proper vigor” by competent & trained personnel, they would in many instances have required risk specific health surveillance. Risks specific health surveillance would have given medics a “heads up” regarding symptoms of “at risk” illnesses.  This should in turn have lead to annual medical assessments more tailored to these risks than the “standard” annual medical that all members of the Defence Forces undergo. 

DELAY – DENY – DIE

Dáil Éireann – Motion on Confidence in Tánaiste Leo Varadkar – 10th November 2020

Róisín Shorthall (Social Democrats)

The shortened version of the Róisín Shorthall T.D. (Social Democrats) contribution on the Motion on Confidence in Tánaiste & Minister for Enterprise , Trade & Employment, Leo Varadkar, T.D.

Deputy Shorthall raises the hypocrisy of Leo Varadkar who used the cabinet rule-book as an excuse to not assist a former Air Corps member seeking medical help to reduce the *untimely deaths of #IrishAirCorps personnel due to unprotected workplace chemical exposure at Casement Aerodrome, Baldonnel.

A similar chemical exposure tragedy in the Royal Australian Air Force saw exposed personnel suffer cancer rates up to 41% greater than a control group. But due to awareness, vigilance, screening and other coordinated medical interventions they were able to turn a greater risk of death & illness into 27% lower mortality than the average Australian of the same age. A similar chemical exposure tragedy has also occurred in the armed services of the Netherlands and their first act was to help survivors.

In Ireland Fine Gael has spent the past half decade denying any help whatsoever to exposed Air Corps personnel nor even admitting that a problem exists.

This is despite the fact that both the HSA, and the DoD appointed independent investigator, both vindicated the claims of three whistle-blowers on this issue with the HSA going as far as to threaten legal action against the Air Corps unless they complied with specific instructions from health & safety inspectors.

*****

Untimely* deaths of serving & former Irish Air Corps personnel

  • 85 verified deaths have occurred in total since 1980
  • 72 of these deaths have occurred since 2000
  • 48 of these deaths have occurred since 2010

Either the rate of death is accelerating or we are missing many deaths from previous decades or possibly both.

The three leading causes of death

  • 37% of deaths are from cancer
  • 30% deaths are from cardiac
  • At least 18% of deaths are from suicide

*We record untimely as dying at or before age 66 (civilian pension age), average age of death is 51 years. We are counting deaths from medical reasons & suicide, we are not counting accidental deaths nor murder.

Delay – Deny – Die

Dáil Éireann Written Answers 21/07/20 – No internal investigation into Irish Air Corps safety failures

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

QUESTION NO: 353

To ask the Minister for Defence the actions he, his officials, the Chief of Staff Branch, Air Corps headquarters and or the State Claims Agency has taken to investigate the reasons for the non-compliance with the Safety, Health and Welfare at Work Acts 1989 and 2005 at the Air Corps as stated by the Health and Safety Authority investigation which concluded after nearly three years in September 2018; and the steps taken at all levels to ensure the same failings to do not occur again in the Air Corps or the other branches of the Defence Forces. [16654/20]

Simon Coveney (Cork South Central, Fine Gael)

I wish to assure the Deputy that the health and welfare of the men and women of the Defence Forces is a high priority for me, my Department and the military authorities.

The Deputy will be aware that following three inspections at Casement Aerodrome, Baldonnel during 2016, the Health and Safety Authority (HSA) issued a Report of Inspection to the Air Corps on 21 October, 2016. This report listed a number of advisory items for follow up, including the areas of risk assessments, safety statements and the provision and use of personal protective equipment.

The resultant Air Corps improvement plan confirmed the Air Corps’ full commitment to implementing improved safety measures that protect workers and ensure risks are as low as reasonably practicable.

The Air Corps improvement plan was implemented over eight phases, which the military authorities have advised are now complete, with phase eight, chemical awareness training and respiratory equipment training, being a continuous process.

The HSA has formally noted the high level of cooperation received and the considerable progress made to date by the Air Corps in this regard and their investigation is now closed.

A wide range of other measures are in place to ensure the health and safety of those serving in the Air Corps including monitoring exposure levels, conducting annual occupational medical screening, audits and training.

As the health and wellbeing of the men and women working in the Air Corps is a priority, the former Minister ensured that allegations relating to exposure to chemical and toxic substances whilst working in the Air Corps in Baldonnel were independently reviewed. The independent report considered the Defence Forces health and safety regime, its current policy and its application and made a number of observations including in relation to documentation, health surveillance, and exposure to monitoring. The report was published on the Department’s website following its circulation to those who made disclosures.

The Air Corps and the wider Defence organisation is committed to complying with health and safety legislation. The organisation is proactive in ensuring that the best standards are adhered to in order to ensure that the risk to human health is as low as reasonably practicable.

The Deputy will appreciate that as litigation is ongoing, it would be inappropriate for me to comment further.

*****

It would have offered some small comfort to survivors of the Irish Air Corps chemical exposure tragedy if the recently re-appointed Minister Coveney had stated that the health & welfare of former personnel who served at Casement Aerodrome was also high priority for him, his Department and the military authorities but alas he chose not to do so at this time.

In terms of the “high level of cooperation” and the “full commitment to implementing improved safety measures” we must be very clear, the Health & Safety Authority threatened legal action if the Irish Air Corps did not comply with their instructions to improve conditions at Baldonnel.

To say there was a high level of cooperation is nonsense because the Air Corps had no choice but to comply. It is akin to a drunk driver crashing into a cafe & injuring scores of people then having a judge praise their cooperation once caught. 

Calling the orders of the HSA “advisory” is also a subtle attempt to downplay the seriousness of the problems discovered. But yes issuing PPE such as gloves, respirators, eye protection and also providing chemical safety training 28 years after they became mandatory is indeed “great progress”. 

But why was no disciplinary process started within the Defence Forces to hold to account those in management who presided over the decades long health & safety shambles?

Current Irish Air Corps compliance with workplace Health & Safety legislation is merely a veneer. There has been no change to safety culture and the Formation Safety Office is severely under resourced and with no dedicated H&S enforcement personnel.

Surprisingly, Vice Admiral Mellett told an Air Corps campaigner recently that it is difficult to change the safety culture of an organisation like the Air Corps. If only the Chief of Staff ahad powerful enforcement tool at his disposal such as military law to force such a culture change through quickly?

When there is a will there is a way, unfortunately decades on from the Army deafness scandal, the insular Defence Forces still don’t understand true Health & Safety from the bottom to the very top of the organisation and without proper understanding there is no will to change. 

In terms of the independent third party investigation it was neither independent nor third party. While there may have been initial attempts to find an independent third party specialist with toxicological or chemical experience, the last government eventually decided to appoint a recently retired barrister from the office of the Attorney General. This is an office of the state that is being sued by former Air Corps personnel so by no stretch of the imagination was this investigator independent nor third party, he was a retired civil servant still on the payroll of the state.

The so called “O’Toole report” is striking because the investigator states at the very start of the report that he was not qualified to undertake the investigation he was tasked to carry out.

My expertise is in the area of law and in carrying out this review it was my intention to examine compliance by the Air Corps with the relevant law and regulation. I was not in a position to consider the substances in use or any implications for human health arising from such use as these issues are outside my competence. The allegations concern both the current health and safety regime and compliance with that regime in a period stretching back over 20 years.

That Minister Coveney can point to this investigation as something worthwhile is stretching credibility. Essentially, the reason for appointing O’Toole was to slow down the  need for a political response to the problem and to ultimately justify doing zero to help save lives & reduce suffering of exposed Air Corps personnel. 

The “O’Toole Report” officially known as the “Report of the Independent Reviewer – Protected Disclosures – Air Corps” can be read in full via the link below.

https://www.gov.ie/en/publication/2250a7-report-of-the-independent-reviewer-protected-disclosures-air-corps/

The Risk Management Section of the State Claims Agency audited Irish Air Corps compliance with Health & Safety for a decade before the Health & Safety Authority were forced to intervene to stop the ongoing unprotected exposure of the workforce to carcinogens, mutagens, reproductive toxicants & toxic chemicals at Casement Aerodrome.

The HSA file was opened in January 2016 and was only closed in September 2018 but the “superb” health & safety performance of the Air Corps for the decade prior to HSA intervention allowed the State Claims Agency & NTMA to justify discretionary performance-related payments for their own personnel & senior management. 

The State Claims agency earned bonus pay for improvements in Air Corps health & safety risk profile while the very same same Air Corps continued to seriously harm serving personnel through lack of even the most basic health & safety measures.

DELAY – DENY – DIE

Seanad Éireann – 17th July 2020 – Irish Air Corps Toxic Chemical Exposure Scandal

Senator Gerard P. Craughwell (Independent)

Watch Senator Gerard Craughwell request that the speaker of the Irish Senate invite the head of the State Claims Agency before senators in the Upper House to explain why NAMA / NTMA / SCA have ignored an order of the Irish Supreme Court to provide critical toxic chemical exposure data to a former Irish Air Corps technician.

The technician is one of a number of seriously injured Irish Air Corps personnel who are taking legal action against the state alleging non existent chemical health & safety at the Irish Air Corps at Casement Aerodrome.

The data was originally requested in 2013 and has delayed legal cases for 7 years. 32 personnel have died young since the data was requested bringing the untimely death body count to 78 personnel with an average age 50 years.

A third of the deaths are cancer, a third are cardiovascular and a fifth (15) suicide. #DelayDenyDie 

Dáil Éireann – 4th July 2019 – Public Accounts Committee – Irish Air Corps Toxic Chemical Exposure (Transcript)

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

With regard to the list of actions where there are groups of people affected in the same way – mass action as opposed to class actions – how many would be grouped if it was to be described as a mass action? How many claims would there be if they were to be put into a category like that?

Mr. Ciarán Breen – State Claims Agency

It will depend. In other words, what normally happens is that we will either get one claim or maybe a dozen will come in together.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

If there was a dozen—–

Mr. Ciarán Breen – State Claims Agency

We would say that is a mass action.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

What about the list the agency has given us

Mr. Ciarán Breen – State Claims Agency

That is a good indication of the numbers pleading similar things.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

Are there many more like that?

Mr. Ciarán Breen – State Claims Agency

We have set out in the report exactly what they are.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

Are the ones in the report the only ones Mr. Breen would describe in that way?

Mr. Ciarán Breen – State Claims Agency

Some new ones have come along in the meantime.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

What would the new ones be?

Mr. Ciarán Breen – State Claims Agency

For example, there are 26 cases in regard to transvaginal implants. There is sodium valproate, which is a potential mass action. Where there is another abuser, there may be a set of claims which attach to him. We have Gardasil, which is the HPV vaccine, and we have Aulin, which is another medicinal product.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

In regard to the Air Corps, the agency has 21 active claims. Mr. Breen has not mentioned that.

Mr. Ciarán Breen – State Claims Agency

I am sorry, I did not mean to leave them out. The Deputy is right that we have a number of cases from the Air Corps in regard to alleged exposure to chemicals.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

The State Claims Agency would have had an involvement in risk management. I received a reply to a parliamentary question from the Minister the State, which stated:

I am advised by the State Claims Agency that it has a statutory remit under the National Treasury Management Agency (Amendment) Act 2000 to provide risk management advices to Delegated State Authorities. … [The] State Claims Agency conducted a number of Health & Safety Management System Defence Forces audits within the Air Corps between the years 2006 – 2015. The Reports are authored by the State Claims Agency and are confidential between the Agency and their Client [which is the Department of Defence].

What would the agency have looked at when it went out to do those assessments? Would it have looked at the paperwork, and would it have gone down to the level of looking at what equipment people are wearing to protect them or the environment they are working in?

Mr. Ciarán Breen – State Claims Agency

The Defence Forces has put a safety management system in place, and this applies to all branches of the Defence Forces. We have worked very closely with them in that regard. On risk, our people on the ground, when they carry out audits, go onsite and they meet with the person who would have responsibility for safety and health in the particular barracks, battalion or otherwise. They carry out audits of things like, for example, what is being done about lifting and the safety standards in respect of that.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

Would it have looked at chemicals, for example, where chemicals are sited or how they are handled? Would it have looked at the kind of things that would expose people to risk?

Mr. Ciarán Breen – State Claims Agency

I want to explain the position in regard to the Air Corps because I believe it might be helpful in answering specifically what happened. We started our audits there in 2006. The particular exposure we are looking at in respect of the chemicals in the Air Corps is from 1972 to 2007. In 2007, the particular workshop which is associated with the alleged exposure was changed to a state-of-the-art facility. At no time—–

INTERRUPTION by PAC Chair Seán Fleming

Mr. Ciarán Breen – State Claims Agency

At no time during those audits and reviews was anything specifically brought to our attention about the historical exposure, if there was one, that might have been there and how that was handled. We were very assured by the fact it was now a state-of-the-art facility.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

The agency would not have looked at—–

Mr. Ciarán Breen – State Claims Agency

The exposure long predated even our establishment.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

I have been given a document, which I might have mentioned before, on the extraordinary age profile of people who have died in the Air Corps. The Air Corps is not a big employer and there have been 72 deaths at pre-retirement age, some of them very young. Of the 72, 14 or 15 are by suicide but others are in particular categories, such as cancers and cardiac issues. It seems a very dangerous place to work – I am sorry, I do not really mean that, but it seems to be a place where an abnormal number of people die prematurely. That would have jumped out to me as something that would make me question the risk. As Mr. Breen said, it goes back to a time prior to when the agency was doing its assessment. I understand there were no registers of this particular chemical available.

Mr. Ciarán Breen – State Claims Agency

I am not sure. Is Mr. Kirwan is in a position to comment on that?

Mr. Pat Kirwan – State Claims Agency

Not specifically. The chemicals that are discussed in the statement of claim are a wide range of chemicals, basically organic lubricants and degreasers. I do not have that information or the Deputy would need to be more specific about the particular chemical she is talking about.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

I have the names of the—–

Mr. Pat Kirwan – State Claims Agency

I know that when we audited there, we were satisfied that, for the chemicals that were in the workshops – I am talking in a general sense – there where material safety data sheets available for any chemical that we sampled. That would suggest they were registered in some way.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

I am trying to find out how to mitigate risk and I am using this as an example. What I am hearing is that there still is not, or there was not in recent years, use of protective clothing and availability of a particular type of protective clothing when handling these materials. Would the State Claims Agency have looked at that, given it would have known the profile? Is the agency satisfied the risk assessment is mitigating this risk?

Mr. Pat Kirwan – State Claims Agency

I head up the enterprise risk unit that would have carried out the audits.

When we go out, we look at the systems that are in place. We are back to that word, “systems”, again. We sample as we go out. They are snapshots. One is only there for a particular day. We talked to the staff and the members of the Defence Forces who were available in the workshop. They are highly-trained, technical people. We came across no evidence of procedures or practices being carried out to anything other than the appropriate standards at that time.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

I understand that the Air Corps does not carry out mandatory risk assessments. Does the SCA not instruct particular organisations to carry out mandatory risk assessments? Is that not essential?

Mr. Pat Kirwan – State Claims Agency

Absolutely. It is not only essential from the point of view of the agency’s expectations, but it is also a legal requirement under the Safety, Health and Welfare at Work Act 2005. Again, that was not our experience. Ultimately the Defence Forces are responsible for the risks. When we originally worked with the Defence Forces they had risk assessments in place. In organisations as complex as the Defence Forces, the Naval Service, the Air Corps, and the Army, we are talking about thousands of different types of risk assessments. I cannot vouch for any particular risk assessment but, in general, the Defence Forces do have risk assessments in place.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

Are they mandatory?

Mr. Pat Kirwan – State Claims Agency

It is mandatory under Irish legislation for appropriate risk assessments to be in place. It is also absolutely mandatory as part of the occupational health and safety management system the Defence Forces have had in place for some time.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

What the does the SCA do? Does it visit, carry out the assessment, and give the Defence Forces a certificate? Is there a certificate for each year? Were there years in which they were not given a clean bill of health?

Mr. Pat Kirwan – State Claims Agency

There are approximately 56 units in the Defence Forces. We cannot possibly audit every single one every year. We carried out approximately 100 audits between 2006 and 2015. An audit might be themed, that is, we might be looking at particular themes. For example, we may be worried about appropriate training documentation because that is something we have learned about from dealing with claims. We may have seen a number of incidents of a given type. For example, we may have seen particular injuries arising from vehicle crashes. For that reason we might look at that aspect of the system in particular. In general we look at roles and responsibilities, the structures that are in place, and the types of risk assessments and documentation that are in place.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

Does the SCA work with the Health and Safety Authority on any of this?

Mr. Pat Kirwan – State Claims Agency

No. We have worked collaboratively with the Health and Safety Authority to produce guidelines in respect of, for example, schools, critical incidents and stress management. We have a different role in this area however. It is a policing authority and enforces legislation. On the specific issue of chemicals in the Air Corps, we were involved with the Healthy and Safety Authority in the sense that, after going in and carrying out one of its inspections, it made some recommendations and advised the Defence Forces to consult with us in addressing those recommendations.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

Did the Health and Safety Authority not threaten legal action over shortcomings in the use of chemicals?

Mr. Pat Kirwan – State Claims Agency

I am not—–

Catherine Murphy T.D. (Kildare North)Public Accounts Committee

It is my understanding that it did.

Mr. Pat Kirwan – State Claims Agency

I am not exactly sure and I would not like to speak on the Health and Safety Authority’s behalf. I do know that it audited the Air Corps and raised issues. I am not sure of the level at which they were raised. We were active in helping the Defence Forces to address those issues to the satisfaction of the Health and Safety Authority.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

It is my understanding that the authority did threaten legal action. It seems extraordinary that one arm of the State may be doing so while another is giving the Air Corps a clean bill of health with regard to risk. That does not stack up in terms of mitigating risk into the future.

Mr. Pat Kirwan – State Claims Agency

Again, I would have to know the specific details to comment but statutory legislation underpins the health and safety of our employees across the State sector and, indeed, all employees within the State. With regard to chemical safety in particular, there is a complex suite of legislation in place. There is legislation from 2001, 2007, 2010 and, most recently, 2018. In addition, there is guidance in that area. It moves. In other words—–

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

The SCA is not expert in all of this, so does it have to bring in people who are experts in a given area?

Mr. Pat Kirwan – State Claims Agency

We are experts in this area. Members of our enterprise risk management team have backgrounds in engineering, science, public health, and nursing. Most have, at a minimum, a degree level qualification. Many have masters and some have doctorates. They are experts in various areas. We have expertise right across the main areas one would expect to encounter in dealing with employee and public safety. We are a very expert unit. We publish national and international guidelines. We are recognised as such.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

How many people work in Mr. Kirwan’s unit?

Mr. Pat Kirwan – State Claims Agency

We have 20 members of staff.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

Most of these people have professional qualifications. Are there administrative staff included in that 20?

Mr. Pat Kirwan – State Claims Agency

There may be two administrative staff members included in that 20. The others have worked at very senior levels in the Defence Forces, the Health and Safety Authority, and other semi-State and private organisations nationwide, usually in some area of environmental or public health and safety.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

Is there a bonus system or anything of that nature in the agency for mitigating risks?

Mr Ciarán Breen – State Claims Agency

Is the Deputy asking whether we operate such a scheme for State authorities?

Catherine Murphy T.D. (Kildare North)Public Accounts Committee

Yes.

Mr Ciarán Breen – State Claims Agency

No, we do not. There is no kind of risk-pooling approach in the public service. That does not happen. Every year, however, we ourselves recognise individual State authorities in a ceremony we hold at one point in the year. We give certificates to authorities that have done something very particular to mitigate their risk, and which produce documentation to prove it, at an annual event.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

We saw some evidence of that the last time the SCA was before the committee. We could see serious progress with regard to slips and falls. That is to be commended. I am still not entirely clear what the SCA looks at when it goes out to such organisations to look at issues such as the handling of serious chemicals. Does it look at whether adequate equipment, such as gloves or clothing, is provided to reduce the risks? Does it evaluate risk at that level?

Mr Pat Kirwan – State Claims Agency

I fully understand that it is quite difficult to understand. There are thousands of risks in, for example, a large facility such as that of the Air Corps in Baldonnel. We have to be guided by what we see, for example, reported on the national incident management system. At no time did we see any significant level of reported incidents relating to chemicals. In other words, it was not flagged to us as a hotspot to investigate. Nonetheless, because, as I said, chemical safety is important in workshops, it is something we test. I use the word “test”. In other words, we sample. On the day, we talk to people, we look at how the chemicals are stored, and we ensure the appropriate documentation is in place.

Perhaps I should give an alternative example. We did a very large job with the Defence Forces with regard to the guarding of machinery. We did so because there had been incidents of people being seriously injured because guards were not in place. We looked at a series of workshops. In that case, some workshops were closed down and some machines had to be retrofitted. That investigation proceeded machine by machine. We looked at it in detail because we, as a claims agency, saw it as a definite source of litigation risk.

The Deputy talked about the Health and Safety Authority. It will be guided by the statutory legislation. We obviously consider what we are particularly concerned about that could lead to claims. One of the indicators is whether incidents are being reported.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

On those cases, are they ongoing, settled or in dispute?

Mr Ciarán Breen – State Claims Agency

They are ongoing. One is in the Court of Appeal. A date has been given for the year after next because there is a glut of appeals in that court. Others are awaiting an important decision by the Supreme Court on a discovery issue.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

When mediation is possible for a group, but not necessarily the group in question, how does it happen? If there are a dozen cases coming in on something or other, does the agency wait for one case to be proven in the court? What approach does the agency take?

Mr Ciarán Breen – State Claims Agency

We do not have what in the United States and certain other jurisdictions is called class action, whereby a whole series of cases is taken at the one time, or for the group. Here a lead case will be chosen by a plaintiff’s solicitor, and it will be agreed with us that it will be the lead case. We engage on that case in terms of our separate investigations. One can imagine that we are preoccupied with the question of whether the State has a liability. Where it does, we obviously want to settle at the earliest possible opportunity. One of the vehicles we might use for that is mediation, if it comes to that. Having settled one, we would be of the view that unless the other cases could be differentiated in some way, we should seek to settle them through incurring the best possible cost and as quickly as we could.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

On Cervical Check, a couple of years ago we saw Vicky Phelan going public. If she had not done so, would others have realised they could have been affected in the same way? Is that used as a means of mitigating against damage done to individuals? I am referring to settling with what is known as a gagging order.

Mr Ciarán Breen – State Claims Agency

As the Deputy knows, we were not party to any of that. That case was settled by the particular laboratory.

Catherine Murphy T.D. (Kildare North) Public Accounts Committee

Yes

Mr Ciarán Breen – State Claims Agency

We were only involved peripherally in relation to the non-disclosure part of the case. I understand the point the Deputy is making, however. We talked on the last occasion I was here about how the other women found out. That is a different issue.

*****

The State Claims Agency Risk Management Section commenced annual Health & Safety Management System audits in 2006.

Unprotected toxic chemical exposures continued in the Irish Air Corps until they were threatened with legal action by Health & Safety Authority in 2016 for serious and basic Health & Safety failings that were an immediate threat to personnel after 2 x technicians were injured by solvent exposure in late 2015.

Luxuries such as gloves, eye protection & respirators were finally issued to all relevant personnel in 2017, a full two decades after another state agency Forbairt recommenced same in 1997.

Despite several legal actions, despite a decade of risk audits by the State Claims Agency, despite legal threats from the Health & Safety Authority the Irish Air Corps still thought it was OK to publish the below photographs on their official Facebook page showing ongoing chemical health & safety breaches in 2018…the Air Corps blamed this on “personal failings”.

 

 

Delay – Deny – Die

 

Dáil Éireann – 4th July 2019 – Public Accounts Committee – Irish Air Corps Toxic Chemical Exposure

Catherine Murphy T.D. (Kildare North)Public Accounts Committee

Watch Deputy Catherine Murphy question Mr. Ciaran Breen, Director of the State Claims Agency and Mr. Pat Kirwan,  Head of Enterprise Risk, also at the State Claims Agency, about the failure of a decade of Risk Management Section, Heath & Safety Management System audits at Casement Aerodrome, Baldonnel.

The State Claims Agency audits at Baldonnel commenced in 2006 and continued as the Irish Air Corps were investigated by the Health & Safety Authority in 2016 for serious breaches of the Safety, Health & Welfare at Work Act 2005. Breaches that including the very basic failure to provide PPE or chemical training.

It took the threat of legal action by the Health & Safety Authority as well as 2 years & 9 months of intervention to finally close the HSA file on what their own inspectors described as the most serious case of chemical misuse in the history of the state.

It should be noted that the State Claims Agency were not only aware from 2013 that the unprotected chemical exposures at Baldonnel were an ONGOING LIVE ISSUE, but bizarrely failed to intervene to prevent further exposure once this knowledge was in their possession.

It took the actions of three whistle-blowers in 2015 to bring the ongoing toxic chemical Health & Safety failures at the Irish Air Corps to the attention of the Minister for Defence and also to the attention of the Health & Safety Authority.

Why did the State Claims Agency fail to notice the high rate of untimely mortality, the high rate of suicide, the high rate of sick leave, the lack of PPE records and the lack of any chemical training records in 10 years of supposed audits.

Why did the State Claims Agency fail to act in 2013 when they did become aware that personnel were still being needlessly exposed to dangerous chemicals without PPE and without any chemical safety training?