High Court of Ireland Decisions

1. The Plaintiff is a fifty-five year old man who served in the Army from 1958 until 1996. His entire career was with the Army Band following his training at Cathal Brugha Barracks. He was a member of the No. 2 Army Band at Collins Barracks in Cork from 1960 onwards and in 1982 he was promoted to the rank of Sergeant.

2. The Plaintiff's claim is for damages for hearing loss and impairment which he alleges was caused by the negligence of the Defendants their servants or agents.

3. I have already ruled that the Plaintiff's claim is not a statute barred. See judgment dated the 25th day of February 1998. .

4. Towards the end of 1989, following a medical examination, the Plaintiff was forbidden to practice indoors pending a specialist medical testing of his hearing on behalf of the Army authorities. He was referred to Mr O'Meara, an Ear, Nose and Throat Specialist and in March 1990 an audiogram was conducted. In this case Mr. O'Meara was called for the Plaintiff. The Specialist's opinion was that the typical v-shaped pattern in the audiogram at 4000 frequencies was "absolutely a typical example of noise deafness" . Mr. Maurice O'Connor, who was called for the Defendants, tested the Plaintiff on two occasions, in 1993 and again in 1996. A loss at 4000 Hz. was shown in both his audiograms. He said "I think without doubt the loss at 4000 frequencies is due to over exposure to loud sounds ". It seems clear to me, therefore, that the Plaintiff suffers from noise induced hearing loss.

5. Mr. O'Meara gave evidence that:

6. Mr. Maurice O'Connor for the Defendants thought it reasonable to infer that one would expect that the Plaintiff's years of service as a bandsman had an adverse effect on his hearing and that in this particular man the damage was less that might have been expected.

7. As long ago as the 9th January, 1982 Commandant Murphy wrote to the Command Engineer a letter which contained the following extract:-

8. It is clear, therefore, that in 1981 the Army doctor felt as of 1981 that there was a medical problem due to the poor acoustics in the bandhall. Unfortunately, his report is not available to the Court. In my view, these matters constitute prima facie evidence of noise induced deafness, being caused by the acoustics in the bandhall. However, this matter has been challenged and it is necessary to deal with the scientific evidence.

9. At the request of Commandant Gahon, Mr. Patterson, Senior Scientific Officer from Eolas carried out an inspection of the bandhall on the 6th December, 1989 and prepared the first Eolas report dated the 19th January, 1990.

10. The prime object of the report was to take measurements of typical sound levels in the bandroom and to make an assessment of the hearing risk to members of the band. The occupational noise assessment was carried out in accordance with International Standards Organisation Standard 199 (I.S.O. 199) . Cognisance was taken of the E.E.C. Directive No. 86-1880 which became part of our domestic law in 1990. [The hearing impairment referred to in I.S.O 1990 is a permanent threshold shift of 25 decibels at the frequencies of 500, 1000, 2000, Hzs. In the present case no such deficit is contended for at those frequencies. However, the evidence of Mr. Patterson and Mr. Foy which was uncontradicted, was that damage at higher frequencies was more likely to occur. Mr. Foy said that if damage were to occur at the lower frequencies, one would expect greater damage which would take place earlier at higher frequencies]. Mr. Patterson took different measures at different positions in the bandhall as set out in the discussion part of his report. The levels varied at different places but averaged 98 decibels (A) leq where a conductor was positioned. That measurement, however, is for "El Cumbranchero", a particularly loud piece of music. Moreover that measurement was for a very short period. Other measurements for a duration of fifteen minutes which was used for a selection of music are more satisfactory. Those measurements averaged 97 decibels. An increase of 3 decibels is equivalent to a doubling of noise, and therefore halving the time of exposure to constitute the same amount of noise. Thus 80 decibels for eight hours is the equivalent of 83 decibels for four hours, 86 decibels for two hours, 89 decibels for one hour etc. The E.U. Directive is primarily suited for industrial situations rather than for measuring in a bandhall. Having regard to the noise levels which he found and by reference to the risk table contained in I.S.O. 199, Mr. Patterson felt that there was a significant risk to members of the band.

11. According to the risk table:

12. Exposure to 90 decibels (A) for thirty years gives 18% risk.

13. EXPOSure to 95 decibels (A) for fifteen years gives 20% risk.

14. Mr. Patterson calculated the amount of practice time from information which was given to him by the conductor of the band. Assuming a typical day to be made up of four hours band practice and two hours solo practice, the reverberant level in the room for an eight hour day would be 95 decibels (A) leq. For three hours band practice and two hours solo practice the level would be 94 decibels (A) leq. For two hours band practice and two hours solo practice the level would be 93 decibels (A) leq.

15. A further report was commissioned from Eolas as to what measures might be taken to improve the bandhall and work was carried out in 1994 which considerably improved the conditions in the bandhall.

16. Mr. Martin Foy, an occupational Hygienist, visited the bandhall in 1992 and took some photographs. There were acoustic blankets in the Hall at that stage. The floor was covered with carpet tiles and there was some pin board on part of the walls. He took no measurements at that time.

17. He visited again in April 1995, and took measurements, and also on the

18. It was agreed between the parties that the full working year was 220 days. In 1986 there were 173 outside engagements leaving 47 days for practice, in 1987 there were 152 outside engagements leaving 68 days for practice, in 1988 there were 127 outside engagements leaving 93 days for practice and in 1989 there were 173 outside engagements leaving 47 days for practice. Mr Foy agreed that if the average of his measurement was 90 decibels (as was accepted), 6 decibels should be added on to take account of the fact that he was measuring after the improvements to the bandhall. The adjusted figure is, therefore, 96 decibels (A) to represent the condition during the time when the Plaintiff was using the bandhall. From that figure the witness agreed that it would be proper to make a deduction of 3 decibels to adjust for the fact that 96 decibels for 8 hours is the equivalent of 93 decibels for 4 hours, which was the length of practise time. To get the appropriate figure for the specific year when only 47 practice days out of the 220 days (or 21% of the time) was used one should subtract another 7 decibels. Even that figure, based on the shortest time of exposure is slightly over the 85 decibel level mentioned in the EU Directive, 90+6=96; 96-3=93; 93-7=86.

19. Mr. John Mervyn Hustwick was called as an Expert Witness by the Defendants. In February 1993 he first visited the bandhall and took a series of measurements. The measurements he took were over quite short periods about

20. In 1995 after the improvements in the bandhall Mr. Hustwick took further measurements the shortest of which was about 19 minutes and the longest something in the order of 48 minutes. The longer sample would have captured a more realistic operation in the band in terms of their practising. The levels varied between 82 and 95. It is noteworthy, and highly significant that the readings of Mr Hustwick, in 1995, do not significantly vary from the readings of Mr Patterson or Mr Foy, if one adds on 6 decibels to represent the improved position of the bandhall when Mr Hustwick measured. The average for the 14 hand-held measurements was 89.32 (+6 = 95.32) and for the 9 distinctive measurements was

21. While those measurements are high Mr. Hustwick concluded the band was not exposed to high noise levels for sufficiently long periods of time to cause hearing damage of the levels that have been mentioned by the Plaintiff. He felt that while the level of noise was quite loud when the band was playing, it appeared that the band did not play continuously during a practice session. The whole crux of the matter is that it is not only noise levels, but the duration of exposure which was important in assessing risk. The witness contended that the Eolas report took noise measurements while the band were actually playing and translated this to an overall exposure for a day and without any due regard for the fact that the band does not play continuously. Mr Hustwick considered that this approach is totally wrong. It was quite obvious to him that the band did not physically play the instruments for

22. The number of potential practice days is agreed at present to be 240. However, there was evidence that in earlier times in which the Plaintiff played there was sometimes practice on Saturdays. From the figure of 240 there have to be subtracted the number of engagements days in which there was no practice. The evidence shows the following:

23. However, some of these engagements would involve only a small number of band members being absent and the other members would have to practice. moreover sometimes the practice would be outdoors and would involve marching.

24. The Plaintiff's evidence was that the practice was approximately 3½ hours per day and initially Saturday was a practice day as well. Colonel O'Brien's evidence was that there was no such thing as a typical week but that they would be in the bandroom for approximately 16 hours maximum per week for practice.

25. Colonel O'Brien estimated the amount of playing to be about one half to two-thirds of any practice session. However Mr. Michael Marshall who had played in the band under four conductors said things varied. He agreed that the evidence of Colonel O'Brien describes his regime accurately enough but said that before Col. O'Brien's time, he served under Lieutenant Colonel Kealy for a period. The practice regime was much different then. Practise sessions were extremely intense, with virtually no stops between parts. One of his nicknames was "Buckets of Blood" During that time it was not unusual to have a rehearsal on a Saturday morning).

26. According to the Plaintiff, this varied from 23 to 38 and on occasion perhaps up to 42. Colonel O'Brien put it that it was usual to have a few people missing always one or two but maybe three, four or five depending. The variation in number of players would have some effect on the noise level in the hall but would not be as important as the factors such as duration of the exposure. Mr. Foy gave evidence that the difference between 29 and 37 players would be in the order of 1 decibels.

27. The position of the player in the band would effect the amount of exposure as is shown by the different readings at different positions. However, that factor cannot be divorced, from the particular piece of music that is being played and furthermore Colonel O'Brien gave evidence that the acoustics in the various parts of the bandhall did not vary much.

28. There has been no scientific evidence as to the effect of the acoustic carpet tiles which were put down in 1980. However they must be of some significance, and have had effect on the reverberant sound. Colonel O'Brien said they acted as an absorber of sound. They were heavy rubber backed carpet tiles and that they made "a huge difference" . However, he may have been talking primarily about the musical qualities rather than the sound, because he said that prior to the tiles being put down he was constantly trying to tell the band to keep quiet so that he could hear the different sections of the band. the carpet tiles helped enormously in that regard.

29. The selection of music would have varied from conductor to conductor. However the particular selections used at No. 17 by Mr. Patterson and the selection by Mr. Foy and the selection by Mr. Hustwick have not been criticised as being unrepresentative.

30. The factors set out above at 1-7 show the great difficulty in assessing the scientific evidence or in placing too much reliance on it. However, taking into account that on the most extreme case referred to by the Defendants, that is when there were only 47 days practice, the average is still 86 decibels (A) on the adjustment to the measurement over

31. Having established that there is a noise induced deafness in the Plaintiff and that it was caused by exposure to noise in the bandhall over a long period of years two further matters arise:

32. Mr. Foy gave evidence that in a publication he had seen in the mid 1960's

33. On the 9th January 1982 Commandant Murphy wrote to the commanding engineer as follows:

34. It is, therefore, clear that in 1981 the Army authorities were aware (or should have been aware) of the dangers to the Plaintiff posed by the state of the Band Hall.

35. In my view the damage caused to the Plaintiff was foreseeable.

36. Mr. O'Higgins has argued forcefully that the fact that the Plaintiff played in a dance band during the 1960's, was a contributory factor to his hearing loss. However we have no sufficient details of:

37. While it is possible that the extra curricular activities of the Plaintiff contributed to the his hearing loss, it has not been shown on the balance of probabilities that it has done so. Furthermore, the fact that the Plaintiff did not experience difficulties in tuning his instrument until recent times would seem to suggest that the problem is of relatively recent origin. I am unable from the evidence to conclude that the outside activities of the Plaintiff contributed to his injuries.

38. Toward the end of 1989 following a medical examination the Plaintiff was forbidden to practice indoors pending a medical examination by Mr. O'Meara on behalf of the State, and subsequently that audiogram was carried out and there were also two audiograms taken by Mr. Maurice O'Connor on behalf of the Defendants. There were four audiograms taken of the Plaintiff.

39. In addition a small deficit was found in his left ear at 3000 . Mr O' Meara is not happy to rely too much on the 1st audiogram which wasn't taken by him personally.

40. While the Plaintiff gave evidence of a very slight buzz in the ears following loud noise, he did not complain of tinnitus further to Dr O'Meara or to Mr O'Connor and, in my view, the evidence does not disclose that the Plaintiff has tinnitus. The Plaintiff is being an honest and truthful witness and is not exaggerating his problems in the slightest. Since the Plaintiff accepted voluntary redundancy from the Army, I cannot accept the proposition that he is entitled to damages because he was forced out of the Army by virtue of his condition. However, I accept that the exclusion from the band practice was something that caused very considerable upset to the Plaintiff and that he was isolated to some extent from the companionship of his comrades. It was against that background that he opted for voluntary redundancy. Under the provisions of The Civil Liability (Assessment of Hearing Injury) Act, 1998, I am obliged to have regard to the provisions of the Green Book - Section 2 of the Act says " This Act shall apply to all proceedings before a Court, whether commenced before or after the enactment of the Act . However, in view of the fact that the Plaintiff's case was closed prior to the enactment of the legislation, and in view of the fact that none of the examination or cross-examination was directed toward the contents of the Green Book - I agree with the submission of Counsel on both sides that the Green Book is of no real assistance in determining this particular case.

41. In assessing damages I have adopted the approach set down by Johnson J. in the case of Gardiner v. Minister for Defence and Ors (Judgment 13th March 1998) where he said

42. As I have already indicated the Plaintiff in this case impressed me as being a truthful and reliable witness.

43. Having regard to all the circumstances of the present case, I would assess damages as follows:-

44. Pain and suffering to date £ 7,500.00

45. Future pain and suffering £17,500.00

46. Accordingly, the Plaintiff is entitled to a decree in the sum of £25,000.