High Court of Ireland Decisions

1. The Plaintiff enlisted in the Army in 1957 and served until 1978 by which time he had been promoted through the ranks to the position of Quarter Master Sergeant.

2. Whilst in the Army he was based in the Curragh Camp and he served in the First Armoured Squadron and in the Cavalry Corps. In both of those units and indeed throughout the duration of his time within the Army, the Plaintiff was required to participate in

3. During range practice the Plaintiff was required to fire a machine gun which discharged 36 rounds per minute and he estimates that in each year he would have discharged in excess of two hundred rounds of ammunition, whilst at the same time being exposed to the noise of other colleagues firing similar weapons in close proximity and at approximately the same rate. The annual range practice was of two or three days duration.

4. Butt duty was also an annual activity and it lasted for three or four weeks. It involved the shooting of targets and sometimes required different units in the Army to compete against one another in teams. During Butt duty the Plaintiff estimates that he was exposed to the noise of two or three hundred rounds of ammunition every day for three or four weeks, discharged by Browning sub-machine guns and Malzun Canon.

5. The Plaintiff testified to the intent that throughout the entire twenty one years whilst he was a member of the Army (between 1957 and 1978) he was never at any time issued with hearing protection or ear defenders (in the form of ear plugs or ear muffs) or safety equipment directed towards protecting him from exposure to excessive noise. Furthermore he never received any instruction or training directed towards protecting him from the risk of damaged hearing and was not issued with any literature warning him of the potential risk of damage to hearing posed by the noise of the gunfire to which he was exposed during range practice and Butt duty.

6. At the commencement of the case, Counsel on behalf of the Defendants indicated that it would not be necessary for the Plaintiff to prove either

7. The evidence adduced on behalf of the Plaintiff to the intent that every year for twenty one years he was exposed to the noise of several hundred rounds of ammunition for between twenty and thirty days of each year and that he was never provided with hearing protection or instruction, was not challenged by the Defendant at any time throughout the trial of this action. At the conclusion of the evidence, it was expressly conceded on behalf of the Defendants that throughout the duration of the twenty one years whilst the Plaintiff was a member of the Army, the Defendants were negligent and in breach of their duty to the Plaintiff inter alia in failing to provide him with any or any adequate hearing protection and with any or any sufficient training and instruction as how best to protect himself from the risk of damage to his hearing resulting from his exposure to noise from gunfire.

8. The Plaintiff claims that by reason of the negligence and breach of duty of the Defendants he has sustained serious personal injury involving hearing loss and tinnitus and whilst a claim has been advanced on his behalf in respect of other loss and damage, no evidence has been adduced in support of any claim for pecuniary loss. Accordingly on the evidence, the Plaintiff's claim is confined to general damages arising out of his injury.

9. The Plaintiff further claims that

10. In support of his claim the Plaintiff testified to the intent that whilst he was in the Army he noticed that he was encountering a problem with his hearing and a ringing in his ears immediately after the range practice and Butt duty and that these symptoms would continue for "a day or two" . After he was voluntarily discharged from the Army in 1978 he suffered from tinnitus and difficulty with speech discrimination in the presence of background noise and he found it necessary to turn his television to a level higher than was comfortable for the other members of his family. He became particularly conscious of his disability in 1993 and in September, 1995 he was prevailed upon by the other members of his family to visit Dr. O'Shea for the purpose of having his hearing tested.

11. Dr. O'Shea's tests disclosed what the latter described as "mild to moderate noise hearing loss" together with tinnitus and the Plaintiff was then referred to Mr. Savage-Jones who is an Ear, Nose and Throat Consultant Surgeon who arranged a further audiogram for the Plaintiff which more or less confirmed the earlier test relative to the nature and extent of the Plaintiff's hearing impairment. Both Dr. O'Shea and Mr. Savage-Jones indicated in evidence that the Plaintiff's hearing loss occurs in the high tone frequencies and both of these expert medical witnesses were of the opinion that his hearing loss was noise induced and that tinnitus (which is fundamentally a subjective complaint) is a condition which is frequently found in the presence of noise induced hearing impairment.

12. The Plaintiff's testimony to the intent that he was not exposed to excessive levels of noise at any time during the period between his discharge from the Army in 1978 and his presentation for audiogram testing by Dr. O'Shea in 1995 was not challenged on behalf of the Defendants.

13. No Reply has been delivered on behalf of the Plaintiff to the Defence delivered on behalf of the Defendants and in consequence there has been no formal joinder of pleadings in relation to the issue raised in the Defence relative to the Statute of Limitations, 1957 as amended. No application was made by either party to have that issue determined by way of an issue preliminary to the trial of the action but in response to the contentions advanced on behalf of the Defendants in relation to that issue, the Plaintiff relied upon the provisions of Section 2 of the Statute of Limitations (Amendment) Act, 1991, claiming that he brought his action against the Defendants within the period of three years from his "date of knowledge" within the meaning of Section 2 of the 1991 Act. In particular it was argued on behalf of the Plaintiff that he first had knowledge of the fact that his injury was "significant" in 1993 and that a Plenary Summons was issued on his behalf on the 15th September, 1995.

14. It was conceded on behalf of the Plaintiff that he had knowledge of the following facts more than fifteen years prior to the institution of proceedings, that is to say:-

15. At the conclusion of the evidence the Defendants, by their Counsel, conceded that the unchallenged evidence of the Plaintiff constituted proof of negligence and breach of the Defendants' duty to the Plaintiff in failing to provide him with adequate hearing protection and appropriate instruction.

16. They contend however, that the Plaintiff did not sustain any injury or other loss or damage as a result of the Defendants admitted negligence and breach of duty. In support of that contention they point to the evidence adduced on their behalf by Mr. Alexander Blayney who testified to the intent, that when he examined an audiogram which had been commissioned on his behalf he found that the Plaintiff's hearing thresholds fell within the normal range to be expected of a man in his mid-fifties (the Plaintiff's age at the date of the audiogram). He concluded that there was no objective evidence available to him that the Plaintiff had ever sustained noise induced hearing damage.

17. Alternatively the Defendants claim that prima facie the Plaintiff's claim is barred by the provisions of the Statute of Limitations (Amendment) Act, 1991 and in particular Section 3 (1) thereof which provides as follows:-

18. Furthermore the Defendants claim that insofar as the Plaintiff seeks to rely upon the provisions of Section 2 of the 1991 Act (with which I will deal in greater detail later) to prove his "date of knowledge" within the meaning of the Act, the evidence which was adduced at the trial of the action disclosed that well before the appropriate three year period the Plaintiff had knowledge of all of the facts which are relevant in determining the Plaintiff's "date of knowledge" within the meaning of Section 2 of the 1991 Act.

19. In summary then the Defendants contend

20. I have reached the conclusion that the following issues require to be determined in this case:

21. I have no hesitation in determining this issue in favour of the Plaintiff having regard to his unchallenged evidence in that respect and to the concessions made on behalf of the Defendants to which I have referred earlier.

22. I also determine this issue in favour of the Plaintiff and in doing so I have had regard in particular for the following:

23. He felt similarly that the Plaintiff's tinnitus fell within the normal range of frequency and disability for a man of the Plaintiff's age.

24. I was impressed by Mr. Blayney's evidence and have little difficulty in accepting it but I had the impression that Mr. Blayney was concerned to be able to demonstrate the presence or absence of ".... a water tight case of noise induced hearing loss" and felt that he was not in the position to be definite on that issue.

25. Of greater significance there was a difference between the audiogram prepared for Mr. Blayney and those prepared for Dr. O'Shea and Mr. Savage-Jones which showed a greater hearing loss. Mr. Blayney very clearly agreed that the audiograms were prepared by wholly independent technicians and that it was entirely reasonable for Mr. Savage-Jones and Dr. O'Shea to have given the evidence which they gave, having regard to the audiograms which they examined.

26. In the light of the foregoing I am satisfied that on the balance of probabilities the Plaintiff sustained noise induced hearing loss and tinnitus between 1957 and 1978 by reason of the Defendants' negligence.

27. The Plaintiff claims that he commenced proceedings against the Defendants within the period of three years from his "date of knowledge" within the meaning of Section 2 (1) of the Statute of Limitations (Amendment) Act, 1991 which provides as follows:

28. The provisions of sub-section (2) of Section 2 of the 1991 Act is of some relevance to this case. It provides as follows:-

29. It has been expressly admitted by the Plaintiff in evidence and by his Counsel that he had knowledge of the following facts as early as 1979 or 1980 that is to say:-

30. It is contended on behalf of the Plaintiff that whilst he had knowledge as early as 1979 or 1980 that he had been injured, he did not have knowledge that the injury in question was "significant" until some time between 1993 and 1995 and accordingly it has been argued on his behalf that his "date of knowledge" was no earlier than 1993 and that his action is not barred in the manner alleged.

31. It is to be noted that Section 14 (2) of the English Act expressly defines an injury as significant "if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a Defendant who did not dispute liability and was able to satisfy a judgment" . The above definition comprises a re-enactment of an identical provision in the Limitation Act, 1975 which in turn was considered by Geoffrey Lane L.J. in McCafferty v. Metropolitan Police Receiver, (1977) 2 ALL E.R. 756 at p. 775 in the following terms:

32. Similar provisions contained within English Statutes have been considered within the courts in England (see Miller -v- London Electrical Manufacturing Company [1976] 2 Lloyd's Rep. 284 and Knipe -v- British Railways Board [1972] 1 All E.R. 673) but it would appear that there has been no judicial considerations of sub-section 2(1)(b) of the 1991 Act within this jurisdiction and no similar consideration in any other jurisdiction of similar provisions in the absence of an express definition of the word "significant".

33. The Law Reform Commission Report entitled "The Statute of Limitations: Claims In Respect Of Latent Personal Injuries" published in 1987 expressly considered the definition contained in Section 14 of the English Act and pointed out that the provision had been criticised on various grounds (see page 17 thereof). The Commission expressed the view that "the best approach would be for the legislation to require that, for time to begin to run, the plaintiff ought to have been aware that the injury is significant" (see page 44). Furthermore the Report provided a "general scheme of a bill" which made no provision for a definition of the kind contained in Section 14 (2) of the English Act and indeed this "general scheme" appears to have been enacted into legislation more or less without amendment by the Legislature.

34. Accordingly Section 2 of the 1991 Act expressly avoids any attempt to define what is meant by a "significant" injury within the meaning of sub-section 2(1)(b) of the Act and I take the view that by excluding any definition it was the intention of the legislature to avoid confining the sense in which the word "significant" ought to be understood to the terms of the definition contained in Section 14 (2) of the English Act or to any particular terms. If I am correct and if it was intended that a broader test should be applied than was contemplated by the definition contained within Section 14(2) of the English Act, then it would seem to follow that the test to be applied should be primarily subjective and that the Court should take into account the state of mind of the particular Plaintiff at the particular time having regard to his particular circumstances at that time.

35. As I have indicated, I believe the appropriate test to be primarily subjective because it must be qualified to a certain extent by the provisions of sub-section 2(2) of the 1991 Act to which I have already referred. That sub-section introduces a degree of objectivity into the test and potentially requires the additional consideration of whether or not the particular Plaintiff at the particular time ought reasonably to have sought medical or other expert advice having regard to the symptoms from which he was suffering and the other circumstances in which he then found himself.

36. Whilst the definition contained within Section 14(2) of the English Limitation Act of 1980 is clearly not the appropriate means of defining the word "significant" for the purposes of Section 2 of the 1991 Act, it may provide a useful starting point in applying the broader test which is appropriate for the purposes of the 1991 Act. In that regard I have little doubt that if the test appropriate to the English statutory definition were to be applied to this Plaintiff then he would undoubtedly fail that test.

37. Having listened carefully to the somewhat inconsistent testimony of the Plaintiff and his wife I formed the strong impression that as early as 1979 or 1980 the Plaintiff would have considered his hearing loss and his tinnitus sufficiently serious to justify his instituting proceedings for damages against "a Defendant who did not dispute liability and was able to satisfy a judgment" I formed the further impression from the Plaintiff's testimony and his demeanour that his failure to institute proceedings against the Defendants did not result from any belief that his injury was not sufficiently serious to justify instituting proceedings for damages.

38. As I have indicated, however, the test appropriate to the English statutory definition of the word "significant" is not appropriate to the Plaintiff. A broader and more subjective test must be applied.

39. In that regard Counsel on behalf of the Plaintiff has asked me to take a number of matters into consideration and I have taken into account the following:

40. However the evidence disclosed that the Plaintiff required surgery in 1992 which was some fourteen years after his discharge from the army and no evidence was adduced to the intent that he suffered symptoms or required treatment during that fourteen year period.

41. In dealing with his hearing impairment the Plaintiff stated that during "...the year or two that followed" his discharge in 1978 he "....could not very well hear the television" and had difficulty in talking to his colleagues and hearing conversations in the presence of background noise and that this was in 1979.

42. All of the expert medical witnesses were in agreement that noise induced hearing impairment and tinnitus do not worsen when exposure to noise ceases. Accordingly the damage to the Plaintiff's ears would not have been affected by anything other than age-related hearing loss throughout the fifteen years between 1978 and 1993. On the medical testimony the influence of age-related hearing loss throughout that fifteen year period would have been very gradual and there would have been no dramatic increase in the level of symptoms at any particular time. I am afraid that I cannot accept the contention that the combination of the Plaintiff's noise induced hearing loss and tinnitus together with his age related impairment came to a head by a happy coincidence in 1993 but did not result in investigation by way of audiogram until September of 1995 with the resultant institution of proceedings on the precise date when the results of the audiogram were published.

43. It follows from the foregoing conclusions that I have decided that the Plaintiff's "date of knowledge" within the meaning of Section 2(1) of the Statute of Limitations (Amendment) Act, 1991 was substantially before the 15th day of September, 1992 and probably as early as 1979 or 1980. Accordingly the Plaintiff's claim is barred by the provisions of Section 3(1) of the Statute of Limitations (Amendment) Act, 1991.

44. In the light of the above finding the assessment of damages will not be requried and the Plaintiff's claim must be dismissed.