High Court of Ireland Decisions

1. The Plaintiff in this case is an army private who resides in Limerick and was born on the 24th April, 1963. After some work elsewhere he joined the army in 1980 and continues in his army career up to the present moment. In the course of his career in the army he was exposed to a great deal of gunfire, including acting as a mortar-man, without any form of ear protection, until eventually at the end of the 1980's he was given a hard plastic plug. The Plaintiff has undoubtedly suffered damage and his complaints consist of the usual ones, in cases such as this, of hearing disability in noisy circumstances, and he suffers from tinnitus.

2. It is agreed between the parties that at the present moment he suffers a 7% disability under the formula as provided for in the Green Book. The Green Book which was introduced by legislation earlier this year is a method of calculating impairment in terms of percentage disability.

3. The Green Book was considered by Mr. Justice Lavan in the case of Green -v- The Minister for Defence, Ireland and the Attorney General and decided earlier this year. Mr. Justice Lavan accepted the Green Book as a fair and adequate means of measuring disability and insofar as it goes, I completely accept Mr. Justice Lavan's judgment. I support the Green Book as a measure of disability at any given point in time.

4. This view is supported by Professor Alberti and I do not think there is any great dispute about it. All formulae consist of a compromise of one form or another, and irrespective of what formula is produced there will be complaints about it. However, I have no hesitation in saying that the Green Book appears to me to be a fair and reasonable means of calculating disability.

5. However, I further think that it is correct in stating that the Green Book should be followed by all Courts unless there is a specific reason in any given case for not so doing.

6. However, the basic law of Ireland has not been changed by the Green Book or the legislation thereto attached and that is laid down by Mr. Justice Barron in Bastick -v- The Minister for Defence in November of 1995 and he in dealing with the question of the compensation for impairment resulting in negligence says:-

7. I myself stated in the Gardiner case and I quote:-

8. I am satisfied that the Plaintiff has suffered a deal of discomfort to date, has had to give up his job in the officers mess in Limerick because of his inability to hear in crowded locations. In addition I am satisfied that he has suffered a great deal of anxiety as a result of being down-graded to Grade 5 in the army, and he has deep concerns about his future in the army, in which he hopes to remain until he is 60, in case he is boarded out of the army because of hearing difficulties. The evidence of the army personnel, particularly Commandant Loftus, reduced this eventuality to at very best a possibility.

9. As I understand it from Mr. Nugent's initial submissions, the State accepts that the law as stated by Mr. Justice Barron still applies and that the Green Book is merely a method of measuring the disability as above stated.

10. However, the Green Book is not complete and there are some very serious gaps in it. The Court is obliged to take judicial notice of the Green Book and have regard to it and that is what I am doing. However, as I have stated the formula in the Green Book gives merely a still photograph of the impairment measured in disability terms of an injured party at any given moment, but in the formula there is no provision made for future deterioration caused by the combination of noise induced hearing loss and age related hearing loss. This confusion is added further to by parts of the Green Book which indicate, and I refer particularly to page 59 thereof, dealing with age related hearing correction which does not appear to me now to be accurate, having regard to the evidence which I have heard over the last two days. In addition, the figures published at Appendix 1 at page 68 setting out in detail the figures for the ageing process for otologically normal people and the variations therein contained do not appear now to be relevant.

11. The reason it is very confusing is quite simply, that when it has been attempted to be applied, the parties have been told by experts that it is inappropriate to use it. Mr. Hardiman for the Plaintiff indicates that, that is as it may be, but the Plaintiff is entitled to have it used and that is the way the Green Book was passed. To my mind I do not think this is a logical or indeed realistic proposal. The information contained in Appendix 1 of the Green Book appears to have been taken originally from ISO7029 but that related to a screened population.

12. In my view, having regard to the evidence of Dr. Flynn, Professor Hinchcliff, Professor Lutman and Professor Alberti, I am satisfied that the correct table to take and base of which to work is of an unscreened panel such as the one which appears in Annex 2 of ISO1999 at page 11. Unfortunately, that particular database is limited to the ages of 30 to 60 and dealt with in ten year periods.

13. I have been informed that there is no difficulty in getting a full unscreened database for greater ages and in greater detail, namely, year by year and from 20 until 80 if necessary but that was not provided for me in this case so I think in future cases it will be of great use indeed. In addition to that Professor Lutman pointed out at page 6 of the said ISO1999 that there was a formula for calculating the probable advance on an unscreened population of the noise induced hearing loss and age related hearing loss. This database and this formula, to my mind, are the correct ones which should be adopted and I intend adopting them in this case.

14. To do anything else is merely to speculate. In my view if one has a formula worked out scientifically then it will give one as best one can a reasonably accurate prognostication as to what the situation will be, and what the condition of the Plaintiff will be in the future.

15. Having regard to this formula, the evidence is that the Plaintiff will have a cumulative 20% disability at the age of 60 and that is the figure which I am taking for the purposes of assessing the damages in this case. That is the figure of a combination of age related hearing loss and noise induced hearing loss.

16. Mr. Nugent asked me to deal with at what age, in my view, subtraction for age related hearing loss should be applied. In the Green Book for the otologically normal people it is 69. In my view the evidence which I had indicates, having regard to the database that we are taking, it should commence at 62.

17. That being the time in which the 20 decibel barrier will be breached in normal circumstances by the medium of the unscreened population and in my view that is the appropriate measure to take to work on.

18. What the Plaintiff was when he started off, whether otologically normal or not, we do not know, but what we do know is that he is not now otologically normal for his age due to exposure to noise and therefore it is appropriate to adopt the database of the unscreened population for him to follow.

19. The Plaintiff has suffered a 7% loss to date. Utilising database in the ISO1999 together with the formula contained at paragraph 5.1 of the said ISO, the evidence indicates that at the age of 60 to 61 he will have a hearing loss of 20%. The Plaintiff in addition complains of tinnitus. In my view it is not severe tinnitus. It is moderate tinnitus and I will allow a figure of 2% in addition for the tinnitus which he is suffering.

20. The Plaintiff has therefore suffered to date 7% disability plus 2% for tinnitus being 9% disability and in addition will, when he is aged 60, suffer from a further 13% disability making in all 22% by the age of 60. I will assess damages in the following basis. At the present time the Plaintiff suffers a 9% disability. When assessing what the appropriate damages due in respect of any disability one has to be logical and to my mind to allocate moneys as so much per percent of disability is a logical way to do it. However, this is not without variation as of course the greater the disability there has to be a flexibility to allow for greater damages as one goes up the scale. Professor Alberti indicated there were highs and lows and that at certain percentage percentiles there might be a flattening out and I accept that and what I have done in this case is to divide the scale of disability percentages in scales of 1% to 10% and 10% to 25% and the calculations I make are as follows. Mr. Justice Lavan in his judgment in the Green case indicated that £1,500 was an appropriate figure for 1 degree disability at the age of 60. With that I agree. However, it is then necessary to see what 1 degree of disability would be at the age of 30 and to my mind for that I will allow the figure of £3,000. For the purposes of this case and as an assistance to people understanding the manner in which I have come to my conclusions, I have then allowed a figure of £2,750 per degree of disability to the Plaintiff that is because he is 35. If he were 40 I would have allowed £2,500, 45 £2,250, 50 £2,000, 55 £1,750 and 60 £1,500. That I feel is the appropriate scale for disability ranging from 1% to 10% and from 10% to 25% I feel it is proper that having regard to Professor Alberti's advice that the rate per degree of disability should increase. I have considered that an appropriate level at 60 should be £3,000 and at 30 £6,000. For completeness sake I would then say that the figure should be £5,500 at 35, £5,000 at 40, £4,500 at 45, £4,000 at 50, £3,500 at 55 and £3,000 at 60. Therefore, the Plaintiff would have suffered to date 9 degrees disability, the first 9% I would calculate at the rate of £2,750 making a figure of £24,750.

21. However, the evidence also indicates that at the age of 60 the Plaintiff will have a further 13% disability and therefore there is a further 13% to be calculated.

22. Despite what Mr. Hardiman says, I intend to adopt the following course regarding this disability. I will calculate it in accordance with the formula which I have set out in the scale and plan attached hereto. I will measure the 10th degree of disability at a rate of £1,500 and disability from 10th to 22nd at the rate of £3,000 per percentage. That means a figure of £36,000 plus £1,500 being in all £37,500.

23. This is the figure which will be due to the Plaintiff when he is 60.

24. And I will now require an actuarial calculation to reduce this to the appropriate figure which I shall pay him today and it is £15,825.

25. Other matters which concern me in this case is the question of the Plaintiff's future employment in the army. He has indicated he wants to spend the remainder of his career there and of course if he can then all is well. I have asked the parties if it were possible for me to make an award for damages which would not be implemented unless he lost his position in the army through loss of hearing but it was indicated by the parties that this was not in my power to do.

26. As I have stated above, I have been assisted by Commandant Loftus' evidence that this eventuality is unlikely to occur and that he will not lose his position in the army.

27. However, I am satisfied that on the balance of probabilities his opportunities for serving in the Lebanon will be reduced and indeed for promotion and other additional duties for I intend to allow a sum of £10,000 in respect of this to be added to the damages already given.

28. Therefore the total award is the sum of £50,575 plus costs.