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Murphy v. Minister for Defence [1998] IEHC 96 (17th June, 1998)

THE HIGH COURT

1995 No. 674p

BETWEEN

PAUL MURPHY

PLAINTIFF

AND

THE MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Judgment of Mr. Justice Lavan delivered on the 17th day of June, 1998

The Plaintiff's claim for damages in this action arises under four headings:-

(1) For noise induced hearing loss.

(2) For tinnitus.

(3) For loss of overseas service.

(4) A claim for loss into the future based on the belief that the Plaintiff would be discharged from the Permanent Defence Forces in 1999.

1. This latter claim was unfounded due to an unfortunate lack of communications between the Defendants and the Plaintiff. It is my view that this senior N.C.O. of the Defence Forces ought not to have been left in the uncertain position as to his career in the army continuing after 1999.

2. There is an undertaking before the Court, enforceable in law, to the effect that the Plaintiff will not be discharged from the Permanent Defence Forces arising out of any hearing deficit the subject matter of this case. As to the first three issues:-

3. The Plaintiff has an extensive LA 30 detailing his medical history from his induction into the Army up to and including the present time.

4. The first reference to noise induced hearing loss appears therein on the 25th May, 1993 in the course of an Army medical examination. The first reference to tinnitus appears therein on the 8th December, 1993 and was entered by Mrs. Nugent, Audiologist, at the Eye and Ear Hospital Dublin and refers to "occasional tinnitus".

5. Notwithstanding these entries the Plaintiff was in the month of December, 1993 promoted to the rank of Sergeant.

6. The Plaintiff, prior to the 25th May, 1993, never presented for treatment for noise induced hearing loss or tinnitus to any doctor, be they in the Army service or in general practice. Nor did he seek or receive advice or treatment in respect of either such condition.

7. As to the evidence of tinnitus, I have the Plaintiff's evidence which was difficult in its presentation and uncertain as to the date of its commencement and its extent. He was supported by Mr. George Fennell, an ENT Consultant, who had acted on behalf of the Defence Forces for some 27 years. Mr. Fennell has no note of any history of tinnitus taken from the Plaintiff in or about December, 1993. He dismissed the absence of such a note on the basis that, in his view, all soldiers were suffering from tinnitus. Mr. Savage Jones, ENT Consultant, who was retained by the Plaintiff's solicitors for the purpose of giving evidence in the High Court some time late in 1997. He thinks it was approximately six weeks before he saw the Plaintiff on the 29th October, 1997. His report was put in evidence. As to the condition of tinnitus, this witness describes the Plaintiff's history as "tinnitus occurring three times per week for four minutes". In the expert's opinion, such a history was not to be considered of any clinical significance.

8. On the balance of probabilities, on the Plaintiff's case, I infer that, if the Plaintiff suffers from any tinnitus, it is so slight as to be of no clinical significance.

9. Turning to the evidence in relation to the noise induced hearing loss. I accept the Plaintiff's evidence as to his history in the Force. I had evidence from both Consultants as to their view of his condition. Requiring, as I did, the views of the respective parties as to the "green book" formula, as required to be considered by the Court pursuant to the Act of 1998, the evidence was as follows:-

(a) The Plaintiff's formula was that the measurement ought to be 8.25%; and

(b) the Defendants agreed figure was 2.25%.

10. In resolving this difficulty, I have regard to the following matters. Firstly, the taking of five audiograms over a four and a half year period from the Plaintiff and the variation and/or tolerance that can arise in such exercises. Secondly, the fact that the Plaintiff has not had a treating doctor, at any stage up to and including today, advising him and/or prescribing appropriate treatment for either condition. Thirdly, that a form of digital hearing-aid has been available for some three years and may be of benefit to the Plaintiff. The cost of this aid is in the region of £1,000. Fourthly, that any difficulty which the Plaintiff may have in relation to television viewing is readily and cheaply resolved by use of earphones or the appropriate adaptation of stereo equipment, as has been given in evidence before me in other cases. Finally, that a real issue of credibility arises in this case having regard to the variation of evidence as to the content and degree of the Plaintiff's noise induced hearing loss and tinnitus as given by the Plaintiff and his experts.

11. Taking these factors into account, it seems to me that it is open to a court to accept one or other of the figures or indeed, in appropriate cases, to decide to accept an average as between those figures. Further, it seems to me that the court in arriving at such decision will have had regard to the evidence highlighting what are the essentials of a clinical assessment as recommended by the "green book" at pages 36 and 37 thereof.

12. Such an assessment recommends that regard should be had to the following matters, which seem to represent no more than good sound sense, namely, for hearing loss:-

(a) Has the individual noticed any hearing difficulty?

(b) Is the hearing loss present in one or both ears; if so, which ear is worse?

(d) How did the individual become aware of the hearing loss?

(e) Was the onset of hearing loss gradual or sudden?

(f) When is the individual especially affected by the hearing loss, e.g. one to one conversation, in a group, listening to T.V., on the telephone, or otherwise?

(g) How has it affected the individual's performance of their occupation, or access to employment?

13. Turning to the issue of tinnitus, it recommends that the following matters be considered:-

(a) Is tinnitus present?

(b) If present, how does it trouble the individual?

(d) How long has it existed?

(e) Is it unilateral, bilateral or central?

(f) How severe is it, e.g. slight, mild, moderate or severe?

(g) Did tinnitus start at the time of noise exposure?

(h) Is it noticeable in the presence of background noise, or in quiet?

(i) Does it interfere with sleep?

(j) Has the individual sought medical advice?

(k) Has the individual had any treatment?

(l) Does it interfere with normal lifestyle activities?

14. Having regard to my findings on the evidence, especially in relation to the claim for loss in relation to the existence of tinnitus, I consider this case highlights the common sense approach inherent in the recommendations in that scheme.

15. I find, as fact, that there are no substantial or exceptional reasons why I ought not to have regard to and to apply the formula as warranted by the Act.

16. Having regard to the factors aforesaid specific to this case, and with some reluctance, I propose to accept the Plaintiff's figure pursuant to the Act at 8.25% disability. I am primarily motivated in this view in this case by the absence of advice given to the Plaintiff by any doctor in relation to either condition. I find it surprising that from the 8th December, 1993 and without doubt from the institution of the High Court proceedings in this case that the Plaintiff has not had the benefit of advice from the experts called to support his claim.

17. This being the case and accepting as I do that the formula aforesaid incorporates all of the available data necessary to determine the Plaintiff's condition now and into the future. I propose to award the Plaintiff damages in the following categories:-

(1) For noise induced hearing loss for the reasons aforesaid and having regard to accepting on the balance of probabilities that the condition existed from the 25th May, 1993 and into the future but not otherwise that the figure is 8.25%. For this percentage loss, I will award a figure of £12,375.

(2) For the loss of entitlement to sit for courses which may have culminated in promotion to a higher rank. I note that promotion is not a right and this has been held so in a number of decisions before these Courts, nor is there a guarantee that the Plaintiff would have obtained the appointment had he sat the appropriate course. What he has lost is an opportunity to sit for such course and I propose to award him damages for that loss of opportunity. This, I assess, in the sum of £4,000.

(3) In relation to the claim for loss of overseas duties. I preface my comments by pointing out that a plaintiff has to satisfy a court on the balance of probabilities as to each aspect of his case. Under this heading the facts are clear. The Plaintiff served overseas in 1979. From 1980 until 1990, he applied on two occasions to serve overseas. On both occasions, he was accepted for such service. On both occasions he declined the offer of service. Likewise, I place importance on the fact that the Plaintiff, between 1st January, 1990 and 25th May, 1993 did not apply for overseas service. I am satisfied that up to the latter date there was no question of a problem with the Plaintiff's hearing. His stated reason for not serving during the 1980's were based on his family commitments. By 1990, his children were of course much more mature. Taking all of the evidence into consideration, on the balance of probabilities the question I have to ask myself is, can the Court infer that the Plaintiff would thereafter apply for service overseas. On the evidence, I conclude not. Therefore, I propose to compensate the Plaintiff for the loss of opportunity of applying into the future and on this heading I will allow a figure of £2,000.

18. There will be judgment for the Plaintiff in the sum of £18,375 together with costs on the Circuit Court scale and a certificate for Senior Counsel in the circumstances of the case.