High Court of Ireland Decisions

1. The Plaintiff is 51 years of age. He is a married man and has six children. All but one of them are now adults.

2. In his direct evidence the Plaintiff told me that he joined the F.C.A. in 1961 when he was 15 years old. He told me that he remained a member of that force for the following seven to eight years. In cross-examination he accepted that he was incorrect as to the date upon which he joined that force. In fact he did not do so until November 1963. In cross-examination he also accepted that he was not a member of the F.C.A. for seven to eight years but rather for a period of five years. He left that force in 1968. The record of his service, which was put in evidence, showed an effective service of 4 years 41 days.

3. Apart from annual camp, his F.C.A. activities were confined to weekends and Wednesday nights. On Wednesday nights he was involved in the dismantling and the assembly of weapons. At weekends he regularly attended at firing-ranges. There he would be on the ranges for up to six hours at a time. Whilst on the firing-ranges he told me that there would be consistent gun-fire with as many as ten persons involved in it.

4. During his years with the F.C.A. he gained experience in firing a variety of weapons. These ranged from the old .303 Lee Enfield rifle to the Bren gun, Gustav machine gun and Vickers gun.

5. When firing the Bren gun he would do so for periods of an hour and this was extended to periods of two hours in the case of the Vickers.

6. He also gained experience of mortars. However, that experience was gleaned exclusively in the Glen of Imaal whilst attending an annual camp of two weeks duration. Mortars would be used on a single day during that camp.

7. As a result of his exposure to the noise generated by the firing of these guns he complains in these proceedings of a noise induced hearing deficit and of tinnitus. He seeks to recover damages in respect of this condition, which he says was brought about as a result of the negligence of the Defendants.

8. The defence delivered by the Defendants on the 10th October, 1996 contends that the Plaintiff's claim is statute barred, denies negligence and breach of duty to the Plaintiff, denies any loss or damage having been suffered by the Plaintiff and alleges contributory negligence against him. The bulk of these defences were abandoned by the Defendants. The question as to the Plaintiff's action being time barred was not pursued; negligence on the Defendants' part was conceded and the allegations of contributory negligence were dropped. My task is to assess any damages to which the Plaintiff may be entitled if he sustained injuries as a result of the admitted negligence of the Defendants..

9. The Plaintiff left the F.C.A. in 1968. He told me in evidence that in the late 1970s or early 1980s he became aware of hearing difficulties. He noticed that his hearing was failing a little and also noticed a buzzing in his ears. This was intermittent. The failure in the hearing was not noticeable all the time. He described his hearing deficit as manifesting itself particularly in crowds. He described having a difficulty in hearing a conversation whilst in a crowd. He also described the necessity to have the volume of both radio and television turned up to an unacceptably high level for others who may be present in the room. He described to me in evidence the effects of this on both his social and domestic life.

10. As to the complaint of tinnitus, he says that he has a regular buzzing in his ears. Sometimes the buzzing is replaced by a rushing sound. He told me that it affects him about once a week but on occasions would occur a few times in the week. It would be present for perhaps a day but would be gone the following morning. He told me that it affects his sleep until he gets asleep. It prevents him from going asleep for perhaps a few hours.

11. Because of these difficulties in hearing, he told me that he tends to want to socialise in quieter places than his friends. He feels somewhat left out and is embarrassed at times by having to ask people to repeat themselves.

12. His F.C.A. involvement was of course a part-time activity. His occupation from the time that he was in his teens was that of a vehicle maintenance man. That is not a job done in quiet surroundings. From 1962 to 1991 he worked for a variety of employers in that capacity. Since 1991 he has been employed in a supervisory capacity by a company called Goode Concrete. As far as his work is concerned, the only drawback created for him by the hearing difficulties arises on occasions if he attempts to diagnose an engine noise.

13. Notwithstanding his awareness of these hearing difficulties from as far back as the late 1970s or early 1980s, it is remarkable that he never at any stage sought medical advice in respect of them. Indeed, since he left the F.C.A. in 1968 until 1996 he only once attended a doctor. That was in 1971 when he noticed bleeding from his left ear. As he was working adjacent to the Mater Hospital in Dublin, he attended there where a procedure was carried out in out-patients which solved the problem.

14. I am satisfied that up until 1996 the Plaintiff regarded such hearing difficulties as he had as a normal part of his daily life. In 1996 he became aware of the fact that there might be a chance of recovering compensation against the Defendants. Once he so realised, his first port of call was to his solicitor's office rather than a doctor's surgery. It was his solicitor rather than a doctor who referred him to the Charlemont Clinic for an audiogram to be conducted. This was the first of a number of audiograms which were carried out.

15. The Plaintiff was examined by two ear, nose and throat surgeons. Mr. Fennell examined him at the request of his own solicitor. Mr. Vivian Kelly examined him on the Defendants' behalf. The evidence given by these two gentlemen was in conflict in a number of important respects.

16. Mr. Fennell is a consultant surgeon with some 45 years experience. He examined the Plaintiff in June 1997. At that time he had before him the result of the first audiogram which was conducted in the Charlemont Clinic. That test was done on the 27th August, 1996 at a time when the Plaintiff was 50 years of age. The results of the test have been put in evidence before me. Mr. Fennell's view was that this audiogram demonstrated a mild hearing loss on the part of the Plaintiff in respect of high-pitched sounds. He expressed the opinion that this hearing deficit was caused by noise. The deficit was particularly manifest in the upper part of the speech range between 4,000 and 6,000 Hz. Mr. Fennell was of the view that the Plaintiff would have difficulty in hearing conversation in company and with consonant sounds in particular. He was of the view that this impairment of hearing was due to exposure to noise. He expressed the opinion that the Plaintiff would not have a loss of this type normally at his age. Such a loss suggests exposure to loud noise. Insofar as the complaint of tinnitus was concerned, he took the view that that matched with the loss demonstrated on the audiogram.

17. In the course of his direct evidence Mr. Fennell was asked to comment upon the results of a further test carried out in Beaumont Hospital in July 1997. The Beaumont Hospital test fell into two parts. The first was a straightforward audiogram of both the right and left ear. The second part of the test was a cortical ERA test. This is a test which measures electrical impulses in the brain which are triggered by sound. It is conducted by the placing of electrodes in four places on the head. One electrode is placed on the forehead, two are placed behind each of the mastoids and the fourth is placed on the top of the head. The test takes an hour to an hour and a half to perform and it has the considerable merit that it does not require any subjective response from the person who is being tested. Mr. Fennell has no great familiarity with these tests and does not appear to put a great deal of store in them. He prefers to rely on the ordinary audiogram, even though it requires a subjective response on the part of the person being tested.

18. At the conclusion of his direct evidence, the results of a third audiogram were put to him. This was carried out on the 9th September, 1997 by the Midland Health Board. At that stage in the case it appeared that this test was solely confined to an ordinary audiogram though later in the case it emerged that there was also a cortical ERA test carried out. Understandably, Mr. Fennell had little familiarity with this test and so was unable to comment on it in detail. However, he did indicate in general terms that it fitted the pattern of the other tests which had been put to him.

19. In cross-examination he acknowledged that the audiogram carried out in the Charlemont Clinic in August 1996 had been done at the behest of the Plaintiff's solicitor who had referred the Plaintiff to that clinic. He acknowledged that the cortical ERA test measures brain stem activity and does not require a subjective response from the patient.

20. Mr. Fennell accepted that the protocol amongst ear, nose and throat surgeons concerning audiograms which demonstrate different results is that the one showing the best reading is the one that ought to be relied on. As the Beaumont testing gave the best results insofar as the Plaintiff is concerned, it is the one that ought to be accepted. On this result he took the view that the Plaintiff's left ear was normal but that this was not so in the right ear where a very slight loss was recorded.

21. Insofar as the Plaintiff's tinnitus was concerned, he said that the Plaintiff told him that he suffered from a rushing noise most of the time, which was fairly constant. He accepted that tinnitus is a subjective condition and he takes his patient's word for it. He said it is a common condition in the case of noise exposure. The Plaintiff never told him of a ringing or buzzing sound preventing him from sleeping. Insofar as tinnitus is concerned, he was of the view that one must accept what the Plaintiff tells the doctor.

22. Mr. Vivian Kelly gave evidence on behalf of the Defence. He also is an ear, nose, and throat surgeon with many years experience. He examined the Plaintiff on the 9th July, 1997 and carried out an audiogram. He was not satisfied with the results which it demonstrated. The result of this audiogram was put in evidence. It is substantially different from any of the other audiograms which were carried out on the Plaintiff. He was not satisfied with the results shown on the audiogram for three reasons. First, one rarely obtains a loss of the type demonstrated in it from noise. Secondly, the result in respect of low tone loss he took to suggest malingering on the part of the Plaintiff. Thirdly, the audiogram he described as flat and such a result is typical of malingering. In fairness to the Plaintiff it must be said that Counsel for the Defendant expressly disavowed any allegation of malingering against the Plaintiff. However, Mr. Kelly, being dissatisfied with the audiogram result which he obtained, referred the Plaintiff for the test in Beaumont Hospital. He described the cortical ERA test as being the "gold standard" of tests. He agreed with Mr. Fennell that this test demonstrated that the Plaintiff's left ear had normal hearing. The slight loss shown in the right ear was, in Mr. Kelly's view, not noise induced. He then carried out the following exercise. He took the Beaumont test results and superimposed them upon a diagrammatic representation of the hearing situation of a typical population derived from ISO 1999 calculations. The population from which this statistical information was drawn was a population not subjected to excessive noise. The diagram demonstrating this exercise was put in evidence. The effect of it is to show that the Plaintiff does not depart from the material derived from the ISO standard. In other words, the Plaintiff's hearing is within the norm of the population of his age who have not been subjected to excessive noise. He expressed the view that the Plaintiff has no more difficulty in hearing than anyone else of his age. Everyone's hearing diminishes as they get older.

23. Insofar as tinnitus was concerned, Mr. Kelly gave evidence that the Plaintiff complained of this occurring twice per month for fifteen minutes or so.

24. In cross-examination he was firmly of the view that the Plaintiff did not demonstrate any noise induced hearing loss. He took the view that the Plaintiff should not have any difficulty in hearing speech in a background of noise. Noise induced hearing loss and age related loss are often not distinguishable. They are when a person is young but not at age 51. He took the view that the Beaumont test demonstrated a typical audiogram for a 51 year old man. He was firmly of the view that the cortical ERA test for the right ear did not demonstrate typical noise induced loss of hearing. He did not accept that it showed a noise induced pattern. Finally, insofar as tinnitus was concerned, he said that that occurs in 35% of the population who have never been subjected to noise.

25. I also had evidence from Mr. Norman, who is the audiological scientist who carried out the test in Beaumont Hospital. He explained the methodology involved and I am satisfied on his evidence that he is both competent and experienced in the carrying out of these tests. No criticism can be made of the Beaumont test and it is accurate.

26. I allowed Mr. Fennell to be recalled. He reiterated the views already expressed by him concerning the Plaintiff. However, in the course of cross-examination he indicated that he was not really familiar with the details of the cortical ERA test and in his view an audiogram was a perfect test, even though such a test contains a subjective element from the point of view of the person being assessed. He indicated that he was not familiar with the ISO database or indeed with what a database was. He therefore was unable to deal with the statistical material relied upon by Mr. Kelly. Mr. Fennell prefers to use his 45 years experience as a clinician to decide what is normal in a patient rather than to refer to published figures derived from statistics. He agreed that the Plaintiff had been exposed to other noise in his work since his days with the F.C.A. but took his word for it that that noise was not significant.

27. As a result of this evidence I make the following findings arising from the expert testimony.

28. In these circumstances I am, therefore, of opinion that, insofar as the Plaintiff does suffer any hearing impairment, he is no different to other persons of his age who have not been subjected to unusual noise.

29. On the question of tinnitus, the Plaintiff has given different descriptions of this on different occasions. I prefer the evidence of Mr. Kelly to Mr. Fennell in this regard also. In my view, the Plaintiff has not made out a case that such tinnitus as he suffers from can be attributed to the noise to which he was subjected whilst in the F.C.A.

30. The findings which I have just made are, in my view, in full accord with the Plaintiff's own behaviour and with common sense. It is now 29 years since the Plaintiff left the F.C.A. Notwithstanding the length of time that he says he has been complaining of hearing impairment and tinnitus, he never once consulted a doctor in respect of it. I find it difficult to believe that if his position is as alleged, at no stage during these many years did he ever seek the advice of a doctor concerning his condition. I think he regarded his hearing condition as being simply part and parcel of his normal life and one of the disadvantages of growing older.

31. I am quite satisfied that this Plaintiff would never have consulted a doctor, and still less a solicitor, concerning this topic had he not been informed of the possibility of seeking compensation against the Defendants. It was that information that caused him to seek advice. The first advice he sought was legal rather than medical. As a result, he found himself participating in medico- legal procedures which have ultimately resulted in him being in this Court in this rather opportunistic action.. Whilst I have some sympathy for him in the position in which he now finds himself, I am satisfied that his case is not made out and therefore it must be dismissed.

32. Even if I had found in favour of the Plaintiff, it is right that I should say that any award of damages which he would have obtained would have fallen well within the jurisdiction of a Court lower than this one. However, the Plaintiff chose to bring his proceedings in this Court and therefore must suffer the consequences. This claim is dismissed.