Court rules against State ahead of ex-Air Corps mechanic’s case alleging exposure to dangerous chemicals

The State must disclose a range of documents to a former aircraft mechanic in the Air Corps who is suing it over his alleged exposure on dates during the 1990s to dangerous chemicals, the Supreme Court has ruled.

He is among several former mechanics suing over alleged exposure to dangerous chemicals and solvents during their employment.

Today, a five-judge Supreme Court gave a unanimous judgment overturning a Court of Appeal (COA) decision that Mr Tobin’s discovery application was premature.

The State denies he suffered the alleged injuries, requires him to fully prove his claims about exposure to dangerous chemicals and solvents and has also pleaded contributory negligence on his part.

In this case, no concessions of fact were made by the State defendants with the effect Mr Tobin must establish all matters relevant to his claim, he said. Had a “more nuanced” approach being taken by the defence, the discovery sought would have been reduced.

Context

In October 2016 the High Court granted Mr Tobin an order for discovery of the chemicals he used while working at Casement Aerodrome from 1989 to 1999. He had argued that he would need a full list of the chemicals he was asked to use during his time in the Air Corps in order to make his case against the State.

Mr Justice Paul McDermott granted the discovery order in the High Court and said that “the quantities and dates of purchase and use of chemicals and mixtures and the safety data concerning their handling, application and use form a highly relevant and important part of the case”.

He further ruled that Mr Tobin “will suffer serious disadvantage in the preparation and presentation of his case if the relevant records sought under these categories are not made the subject of a discovery order”.

Today’s Supreme Court judgement was referenced in advance at a recent meeting of the Public Accounts Committee.On July 4 last, Social Democrats TD Catherine Murphy raised the Air Corps cases with SCA director, Ciarán Breen who said the Supreme Court ruling in the Tobin case would have implications for others to follow.

“One is in the court of appeal, and I think has been given a date for the year after next because there’s a glut of appeals in the Court of Appeal, and others are awaiting an important decision by the Supreme Court on a discovery issue,” Mr Breen had said of the status of the eight cases.

Read full article on Irish Examiner website below…

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?

PRESS RELEASE – ACCAS launch de-election campaign for Junior Minister for Defence

Both the Minister for Defence Leo Varadkar and the Minister of State with responsibility for Defence Paul Kehoe have failed to offer medical assistance to save the lives and ease the suffering of Air Corps Chemical Abuse Survivors and apparently believe the best place to obtain medical help is via the High Court. In the meantime the State Claims Agency is doing all in its power to prevent cases of injured Air Corps personnel from reaching court in order to hide their own negligence.

We recognise the Junior Minister Kehoe has a vulnerable Fine Gael seat in the Wexford constituency and we have started our campaign to prevent his re-election.

  • We need non means tested medical cards for personnel who served in Irish Air Corps prior to
  • We need awareness campaigns for exposed Air Corps personnel & former work experience students from the University of Limerick.
  • We need access to state backed medical vigilance & cancer screening programs.
  • We need coordination of GPs, consultants & hospitals nationwide.

Minister Kehoe does not have the courage nor conviction to help. Minister Kehoe appears happy to let men who served in the Irish Air Corps die unnecessarily. 19 men have died since the first Health & Safety protected disclosure was made in 2015. Some of these men could have been saved.

We will ACTIVELY canvass AGAINST Minister Paul Kehoe T.D. in the next general election. This is one seat Fine Gael will NOT be relying upon in the 33rd Dáil.

Delay – Deny – Die

Dáil Éireann – 8th November 2018 – Public Accounts Committee

Catherine Murphy T.D. (Kildare North)

Public Accounts Committee

Deputy Murphy questions Mr. Ciaran Breen the Director of the State Claims Agency, regarding the agency’s stance on claims taken agains the Irish Air Corps regarding unprotected toxic chemicla exposure.

 

Dáil Éireann Written Answers 12/07/18 – Department of Defence – Departmental Legal Costs

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

QUESTION NO: 66

To ask the Taoiseach and Minister for Defence the estimated costs of defending litigation on Lariam and Air Corps toxic chemical exposure in each year over the past ten years, excluding settlements; and if he will make a statement on the matter. [32063/18]

Paul Kehoe (Wexford, Fine Gael)

The State Claims Agency manages and provides legal representation in relation to personal injury claims taken against the Minister including claims in respect of current or former members of the Defence Forces in relation to alleged personal injuries that are referred to in the Deputy’s question.

The Department reimburses the State Claims Agency in respect of any external legal costs. This Department does not hold details of the breakdown of the legal costs incurred in respect of the different categories of personal injuries claims managed by the State Claims Agency on behalf of my Department.

*****

  • The state claims agency were aware from 2013/2014 that the Irish Air Corps toxic chemical exposure problem was still a LIVE issue and not just a LEGACY issue. They had an opportunity at this time to inform the HSA and to start to have the ongoing exposure problems rectified but they chose not to do so.
  • The state claims agency are therefore directly responsible for personnel enduring a further 2 years (approx) of unprotected exposure.
  • The State Claims Agency are in charge of their own cover up and have unlimited taxpayer funds to carry out this task.

DELAY – DENY – DIE

Dáil Éireann – Oral Question 38 – 26th June 2018 – Irish Air Corps Protected Disclosure

Mr. Aengus Ó Snodaigh (Dublin South-Central )

Question No. 38

To ask the Taoiseach and Minister for Defence if he has received a protected disclosure from a member of the  Defence Forces (details supplied); if he has responded to the disclosure; and the action that has been taken on foot of the disclosure. — Aengus Ó Snodaigh. [27762/18]

*****

To be clear Minister Paul Kehoe & Taoiseach Leo Varadkar received this Protected Disclosure in December 2017, issued a receipt and have ignored since. 

Dáil Éireann – Oral Question 7 – 10th May 2018 – Irish Air Corps Survivors

Mr. Aengus Ó Snodaigh (Dublin South-Central )

Question No. 7

Deputy Aengus Ó Snodaigh asked the Taoiseach and Minister for Defence if the Chemical Exposure Report 1994-2005 will be released in order to provide former members of the Air Corps who are now chronically ill with information relating to the level of exposure they suffered in view of his recent call for candour and transparency in cases regarding the health of persons; and if he will make a statement on the matter

This relates to a matter that has been ongoing for a while. Given the current controversy around the checks for cervical cancer, there is a need for transparency in publishing reports that will help people suffering health consequences so they can manage future health needs.

Dáil Éireann Written Answers 10/05/18 – State Claims Agency – Irish Air Corps

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

QUESTION NO: 7

Deputy Aengus Ó Snodaigh asked the Taoiseach and Minister for Defence if the Chemical Exposure Report 1994-2005 will be released in order to provide former members of the Air Corps who are now chronically ill with information relating to the level of exposure they suffered in view of his recent call for candour and transparency in cases regarding the health of persons; and if he will make a statement on the

This relates to a matter that has been ongoing for a while. Given the current controversy around the checks for cervical cancer, there is a need for transparency in publishing reports that will help people suffering health consequences so they can manage future health needs.

Paul Kehoe (Wexford, Fine Gael)

The Deputy will be aware that the State Claims Agency is currently managing seven claims taken against the Minister for Defence for personal injuries alleging exposure to chemical and toxic substance while working in the Air Corps in the period 1991 to 2006. The management of such claims lodged against the Minister for Defence is delegated to the State Claims Agency. As I outlined to the Deputy in my replies to his parliamentary questions on 26 September 2017 and 12 December 2017, the report referenced was undertaken in the context of legal proceedings. As the report was requested by and provided to the State Claims Agency in the context of a claim, it is legally and professionally privileged. Therefore, it would not be appropriate to release it.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

The Minister of State has previously stated, and he has done so now again, that it is not appropriate to publish the report. This is even when an independent reviewer was looking at the whistleblower’s claims. The Minister of State did not even supply him with the report in question, the Chemical Exposure Report 1994-2005. This is potentially catastrophic for some of those making claims and also for some who are not making claims. Not everybody exposed to chemicals in that period is making a claim against the State but they are seeking information on what they were exposed to and what damage it could do to their health.

The State Claims Agency, which is involved with the current scandal in the media, has fought these men tooth and nail. It has fought to the level of the High Court the production of a list of chemicals used in Baldonnel in that period. That list alone could save lives. Given the current debacle with cervical smear tests, I ask the Minister of State to think again about the withholding of information that can affect people’s lives and future health. This is wrong and it should be stopped.

Paul Kehoe (Wexford, Fine Gael)

The Deputy is trying to link two very distinct matters. The allegations referred to by the Deputy are historic and this is further complicated as causation has not been established as of yet. I have been very proactive in this matter. When the protected disclosures were submitted to the Department of Defence – there were two in 2015 and one in 2016 – I was briefed on the matter in June 2016. I set up an independent inquiry and met some of the people who made the disclosures. I received the report and I got the views of the people who made the protected disclosures. I sent the report for legal advice and I received that in the past number of days. Before making any further decision on the course of action, a number of legal issues must be finalised. I expect that following the report I will act as soon as possible.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

We visited the Baldonnel aerodrome recently and I can see the huge progress in comparison with photographs I have seen of workshops in the past. Why is the default position of the State always to close ranks and withhold information? The longer one withholds information, the worse some of the health complications could get. Whether they are related to exposure is up to medics, but they cannot find this out if the information is not there and they cannot do the required checks for the chemicals to which I have been told that people have been exposed. Major dangers and cancers can result from those and I appeal to the Minister of State to ask the State Claims Agency to look properly and more openly at this and not to fight it tooth and nail. There is an urgency involved given that we are talking about the lives of men and women being at risk.

Paul Kehoe (Wexford, Fine Gael)

The health and well-being of any member of the Defence Forces is a priority of mine and of military management. I am glad the Deputy recognises the progress in the Air Corps at Baldonnel. It is one of the reasons I instructed the General Officer Commanding, Sean Clancy, to host a visit for Members of the Oireachtas committee so they could see for themselves the progress out there.

I am also reassured current practices have been subject to Health and Safety Authority oversight. There has been considerable progress and subject to completion of an improved plan, it will close its investigation. I am considering the findings of the investigation report that I got and I will make a decision on this. I understand where the Deputy is coming from but I have a duty as well. The Deputy is trying to link two very distinct and different matters in cervical cancer and the issue we are discussing now.

*****

  • The Taoiseach, the Minister for Defence, the Irish Air Corps and the State Claims Agency are all in possession of lists of chemicals that personnel were exposed transdermally & via inhalation without protection (PPE) and via ingestion due to a lack of PPE, adequate washing facilities or chemical handling training.
  • In many cases personnel were exposed via inhalation without their knowledge because their working environment was contaminated.
  • Knowing the exposure information can help save lives as it can help doctors provide correct diagnosis and appropriate targeted healthcare.
  • The Taoiseach Leo Varadkar, Minister Paul Kehoe, the State Claims Agency and the Irish Air Corps would sooner let serving & former personnel die without correct treatment rather than tell them exactly what the were exposed to.

DELAY – DENY – DIE

Dáil Éireann Written Answers 05/12/17 – State Claims Agency

Seán Sherlock (Cork East, Labour)

QUESTION NO: 141

Deputy Sean Sherlock asked the Minister for Finance if personnel employed by the State Claims Agency branch of the National Treasury Management Agency are eligible for bonus payments; and if so, the way in which these bonuses are structured and attained. [51615/17]

Paschal Donohoe (Dublin Central, Fine Gael)

The National Treasury Management Agency (NTMA) has informed me that it operates a discretionary performance-related payments scheme for eligible employees, which includes staff assigned to the State Claims Agency.

The scheme rewards exceptional performance having regard to the employee’s own performance, the performance of the employee’s area of responsibility and the overall performance of the NTMA. Performance-related payments are made in accordance with parameters approved by the Agency’s non-executive Remuneration Committee.

The overall amount of performance related payments made in respect of any year is also subject to the approval of the Remuneration Committee.

*****

Did “improvements” to Air Corps Health & Safety Risk Management Profile influence  bonus payments to State Claims Agency staff

DELAY – DENY – DIE

Dáil Éireann Written Answers 13/02/17 – Department of Defence – Irish Air Corps Chemical Safety Compliance

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

QUESTION NO: 102

To ask the Taoiseach and Minister for Defence if all the recommendations of the 2016 health and safety inspection report at Baldonnel have been implemented; the timeframe for the completion of outstanding recommendations; if a further inspection is scheduled by the Health and Safety Authority to examine compliance; and if he will make a statement on the matter. [6933/18]

Paul Kehoe (Wexford, Fine Gael)

On 21 October 2016, the HSA issued its Report of Inspection to the Air Corps. This Report listed a number of matters requiring attention which included the areas of risk assessment.

The Air Corps as a consequence of this HSA report have implemented an improvement plan, which was conducted over eight phases and completed in December 2017.

I have been informed by military authorities that the HSA has formally noted the high level of cooperation from the Air Corps. Any further inspection is a matter for the HSA alone.

It must be noted that in the Air Corps health and safety is a matter of ongoing monitoring, supervision and adjustment.

*****

The HSA noted high levels of cooperation from the Irish Army Air Corps after threatening legal action against them for non compliance with safety legislation.

Scores dead but at least they cooperated in the end. 

DELAY – DENY – DIE