1. This
Plaintiff is a 46 year old married man with three children who resides at
Swords in the County Dublin. He enlisted in the Irish Army in the year 1977
and was a serving soldier until the month of July of this year when he retired
from the Army on the grounds, as he said in evidence and it was not disputed by
the Defence, that, on account of ongoing problems with his hearing, he was not
permitted to shoot or to participate in a range of military duties to the
extent that he no longer felt that he was a soldier. Indeed, he told me and I
accept that, in the months prior to his leaving the Army, he was assigned very
menial work which had nothing to do with being a soldier.
2. It
is common case that, during his period of service in the Army and up to the
time that he was forbidden to participate in range practice in the year 1994,
the Plaintiff had been exposed to the noise of gunfire from a variety of
weaponry and that, although that noise was excessive, he was never provided
with any adequate protection for his hearing. As a result of that exposure,
Mr. Flood complains that he has suffered a noise-induced hearing loss and
tinnitus in respect of which he comes before the Court claiming damages. In
this connection, Mr. Flood said that, from the very beginning of his Army
service, he noticed that, after a period on the rifle range, he would
experience a ringing in his ears which persisted for a few hours and then went
away. However, by the year 1994, that ringing in his ears was and still is a
constant companion and that it is worse during the quiet of night to the extent
that it affects his sleep pattern. In addition, Mr. Flood gave evidence that,
from 1994 onwards, his wife has been roaring at him in order to attract his
attention, that she complains that he plays the television too loud and also
that her friends consider him to be an ignorant man because he appears to
ignore them. He said that, if he ignored his wife's friends, it was because he
could not hear them and he is embarrassed on that account. He also said that
he notices that he keeps saying
"what"
when people speak to him and that he had particular problems conversing with
passengers in a hackney car, which he took up driving after he left the Army.
In this regard, he said that he was unable to converse with passengers, if
there was a radio on in his car, and that he also had problems conversing in
crowded situations, such as a public house, and that he had problems at home
hearing the doorbell and the telephone. He said that his hearing problems has
got progressively worse over the years and that his wife and children were
complaining more and more with the passage of time. As he put it,
"we
do not talk to each other at home, we all roar in our house"
.
Under cross-examination, it was suggested to Mr. Flood that, in the light of
the results of several audiogram tests which he had undergone in recent years,
it was clear that he was exaggerating his hearing problems and, in particular,
Counsel for the Defence, Mr. Ryan, pointed out to him that even though he (Mr.
Ryan) was speaking in a very low voice, the Plaintiff did not appear to have
any difficulty in hearing him. Mr. Flood countered by saying that he was able
to lip read. In this regard, however, the Plaintiff did not appear to have any
difficulty in hearing what I said to him, even though I spoke in a low voice
and was not facing him so that he could not have been reading my lips.
Accordingly, I am inclined to think that he was, indeed, exaggerating his
hearing problems. That as it may be, however, I do not for a minute doubt but
that he does suffer from tinnitus and that he does experience hearing problems
of the type described by him although not, perhaps, to the extent which he
suggests. Nevertheless, I am satisfied that he did leave the Army because of
loss of job satisfaction due to his no longer being able to shoot or engage in
military duties. I am also satisfied he has problems conversing with
passengers when he drives a hackney car. On the other hand, Mr. Flood told me
that he had been tested with a hearing aid by a Ms. Nugent who, apparently, is
an audiologist and that he found the use of that aid to be very beneficial to
his hearing and that, if and when he could afford one, he would undoubtedly
purchase it. In this regard, I had evidence from a Mr. Dermot Doogan, who is a
audiologist, that a sophisticated hearing aid could well improve the
Plaintiff's hearing.
3. Mr.
George Fennell, an E.N.T. consultant, gave evidence that he examined the
Plaintiff on the 23rd March, 1995 and did an audiogram on him as a result of
which he was satisfied that Mr. Flood suffered from a high tone noise-induced
deafness; worse in the left ear than in the right. Mr. Fennell also gave
evidence that he had seen an audiogram carried out on the Plaintiff by Ms.
Nugent on the 2nd December, 1997 which confirmed his findings. He said that,
as a result, Mr. Flood had significant hearing problems; particularly in his
left ear. He agreed that the problems of which the Plaintiff complained in the
witness box were consistent with the results of the audiogram tests. Moreover,
he said that Mr. Flood's hearing problems would get worse with the passage of
time, that he would always have hearing difficulties when there was a
background of noise and that he would have problems conversing with passengers
when driving a hackney car. On the other hand, Mr. Fennell agreed that a
hearing aid of the type with which Ms. Nugent had tested the Plaintiff would be
of considerable benefit to his hearing. On cross-examination, Mr. Fennell was
shown the results of an audiogram test carried out by a Mr. Blayney, an E.N.T.
surgeon, who examined the Plaintiff on behalf of the Defence. Mr. Fennell
agreed that, while the results of that test were very similar to the results of
the audiogram carried out by Ms. Nugent, the results of Ms. Nugent's audiogram
were marginally worse insofar as the Plaintiff is concerned. Mr. Fennell
explained this discrepancy by pointing out that the audiogram test carried out
by Mr. Blayney had been carried out two years prior to that of Ms. Nugent and
that the Plaintiff's hearing would have deteriorated in the meantime, as he
himself said it had. On further cross-examination, Mr. Fennell said he did not
accept the American, A.M.A. method of assessing hearing disability and neither
did he approve of the formula provided for in the Green Book. Indeed, he said
that, insofar as Mr. Flood was concerned, the fact that his hearing loss at the
6000 Hz. and 8000 Hz. level were excluded from the formula for determining
hearing disability provided for in the Green Book gave a misleading impression
of the true extent of his hearing disability. As I have already pointed out, I
also heard evidence from Mr. Dermot Doogan, an audiologist, and he told me
that, applying the Green Book formula to the audiogram of the Plaintiff carried
out by Ms. Nugent on the 2nd December, 1997, the Plaintiff's hearing disability
would be 2.81% and applying the formula for determining the cumulative effect
of the Plaintiff's noise-induced hearing loss and his age-related hearing loss
when he attained 62 years, using the formula in international standard ISO 1999
would be 11.61%. In reply to a specific question in that behalf from me, Mr.
Doogan said that, based on that audiogram of the 2nd December, 1997 and using
the Green Book formula but excluding the Plaintiff's hearing loss at the levels
500 Hz. and 1000 Hz. and including the hearing loss at 6000 Hz. and 8000 Hz.
his current hearing disability would be 35.31% but that the additive effect of
age related hearing loss at age 62 would be minimal. In this regard, Mr.
Doogan agreed under cross-examination that there was only one system in the
world which used a hearing loss at 6000 Hz. for assessing noise-induced
disability and nowhere in the world was a hearing loss at 8000 Hz. used in that
regard. However, he agreed that, notwithstanding that fact, insofar as the
Plaintiff was concerned, his hearing loss at the ranges 6000 Hz. and 8000 Hz.
and, particularly, that at 6000 Hz. could significantly affect his quality of
life. I had no difficulty in accepting Mr. Doogan's evidence in that regard.
Under further cross-examination, Mr. Doogan said that, using the Green Book
formula, the Plaintiff's hearing disability based on the audiogram test of Mr.
Blayney dated the 13th January, 1996 would be approximately 0.63% and, although
Mr. Doogan did not make that calculation, I was advised that the cumulative
effect of that disability with the Plaintiff's natural age-related hearing loss
at age 60 would be 2.07%. In this regard, Mr. Doogan agreed that, while it
would be pure conjecture to suggest, on the basis of the two audiograms to
which reference had been made, that Mr. Flood's hearing had deteriorated over
the years, he thought that, on the evidence of the one which was later in time,
it was more likely that his hearing had got worse; particularly, if I accepted
the Plaintiff's evidence in that regard, and I was inclined to accept that
evidence. Accordingly, for the purpose of assessing the Plaintiff's damages, I
preferred the results of Ms. Nugent's audiogram.
4. In
the course of the foregoing, I have referred to the Green Book which, as
everyone associated with these type of cases knows, is the report referred to
in the Civil Liability (Assessment of Hearing Injury) Act, 1998 in respect of
which judicial notice is required to be taken when assessing damages for a
hearing loss. Since the introduction of that Act, a number of judges, in
particular Mr. Justice Vivian Lavan and Mr. Justice Richard Johnson, in the
course of judgments given in cases involving claims for damages for hearing
loss, have accepted that the formula for assessing hearing loss in the Green
Book is a fair and adequate means of measuring disability for hearing loss and
should be followed by the Courts unless there are good reasons for not so
doing. As I have indicated on previous occasions, I respectfully agree with
that view. However, like Mr. Justice Johnson in the course of a judgment which
he delivered on the 21st July of this year in a case of
Hanley
v. The Minister for Defence, Ireland and the Attorney General
,
I would also endorse the views of Mr. Justice Barron given in November 1995 in
an unreported judgment in a case of
Bastick
v. The Minister for Defence
in which he held that the effect of a hearing loss on a victim's quality of
life must also be considered. I think that that decision is very relevant to
the circumstances of this case because, accepting as I do, that Mr. Flood's
decision to retire from the Army was provoked by the fact that, because of his
hearing problems, he was being assigned menial tasks which were in no way
related to the work of a soldier, his quality of life has undoubtedly been
detrimentally affected and I am satisfied that I must take that fact into
account in assessing his damages.
5. Apart
from the foregoing, as neither party took issue with it, I propose to follow
the approach of Mr. Justice Johnson in the
Hanley
case with regard to the measurement of compensation per degree of established
disability. In those circumstances, I will assess damages as follows:-
6. For
current hearing disability calculated in accordance with the formula in the
Green Book based on the results of the audiogram test carried out by Ms. Nugent
on the 2nd December, 1997, i.e. 2.81% = £6,182.
7. For
the cumulative effect of the Plaintiff's hearing disability arising from
noise-induced hearing loss and age related hearing loss at age 62 using
international standard ISO 1999, i.e. 11.61% = 9% @ £1,500, i.e.
£13,500 and 2.61% @ £3,000, i.e. £7,830; a total of
£21,330. However, I am advised that, calculated actuarially, the current
value of £1 for this Plaintiff at age 62 is 0.57p and, therefore, that
figure of £21,330 falls to be reduced to a sum of £12,158.
8. I
am satisfied by the medical evidence which I have heard that the use of a
hearing aid will be very beneficial to this Plaintiff's hearing and I accept
his own evidence that, if and when he can afford to do so, will purchase such
an aid. In this connection, it would appear from the evidence of Mr. Doogan
that the capital cost of purchasing an appropriate aid is £1,000 per aid
per ear, that the average hearing aid will have a life span of 5 years and that
the annual cost of servicing and purchasing batteries is £125 per annum.
Accordingly, I calculate that the annual cost of purchasing, servicing and
supplying a hearing aid with batteries is £525, or £10 per week. I
have also been advised that the capital value loss of £1 per week for this
Plaintiff for the rest of his life is £1,300 and, therefore, I will allow
him a sum of £13,000 in respect of the cost of purchasing, replacing,
servicing and providing for batteries for his hearing aids for the rest of his
life.
9. It
has been agreed by the parties that the extent of the Plaintiff's tinnitus in
accordance with the provisions in that behalf in the Green Book is 2%,
therefore, I will allow him a sum of £4,400 in respect of tinnitus.
10. Finally,
I come to the question of the Plaintiff's loss of quality of life. In this
connection, I think that it is very sad that a man, who has obviously made the
Army his career, is forced to abandon that career because, due to his hearing
problems, he has been assigned duties which are very different from the type of
duties which a soldier might expect to undertake. I have great sympathy for
Mr. Flood on that account and I propose to allow him a sum of £10,000 in
respect of loss of quality of life.