High Court of Ireland Decisions

1. This Plaintiff is a 45 year old married man who resides with his wife and two teenage children at Kileely in County Limerick. He enlisted in the Irish Army in the year 1973 and has been a serving solider ever since. In the light of the evidence which I heard during the course of the trial of this action,. I am satisfied that, with the exception of his exposure to the noise of gun fire during his Army service, Mr Cremins never engaged in any activity which involved his exposure to excessive noise and neither has he suffered any disease or illness which might have had a detrimental effect on his hearing.

2. It is common case that, during his period of service in the Army, John Cremins was exposed to the noise of gun fire from a variety of weaponry, including heavy artillery, and, although that noise was excessive, he was not provided with adequate protection for his hearing. As the result of such exposure, Mr Cremins claims that he has suffered a noise induced hearing loss and tinnitus in respect of which he comes before the Court claiming damages. For their part, the Defendants claim that the Plaintiff's claim is barred by virtue of the provisions of the Statute of Limitations 1957, as amended by the Statute of Limitations (Amendment) Act 1991. Alternatively, while Counsel for the defence did not specifically articulate the proposition,. Mr Vivion Kelly, a Consultant ENT Surgeon, who was the only witness who gave evidence on behalf of the defence at the trial of this action, gave it as his evidence that, notwithstanding the Plaintiff's unprotected exposure to the noise of gun fire during his Army service, it was his (Mr Kelly's) opinion that he does not suffer from a hearing loss and, certainly , does not suffer from any disability by reason of damage to his hearing. Notwithstanding that evidence, as I interpret the submissions by Counsel for the defence, in the light of the results of several audiogram tests to which the Plaintiff was subjected and to which I will be referring in greater detail during the course of this judgment, it is open to the Court to conclude that the Plaintiff is, indeed, suffering from a hearing loss and that that loss was induced by his unprotected exposure to excessive noise of gun fire during his period of Army service. However, even if the Court were to come to that conclusion, Counsel for the defence submitted that., in assessing the amount of compensation to which the Plaintiff was entitled, regard should only be had to the result of the audiogram test of the Plaintiff which manifested the better hearing.

3. Mr Cremins gave evidence in the course of which he described the extent to which he had been exposed to the noise of gun fire during his career in the Army and he emphasised that it was not until the late 1980's that he was first provided with any protection for his hearing and that, in fact, the protection (yellow plugs) with which he was then provided was of little benefit in that regard. In this connection, as I have already pointed out, it was not disputed by the defence that, during his period of Army service, the Plaintiff had been exposed to excessive noise from gun fire without adequate protection for his hearing and, having heard the Plaintiff's evidence with regard to the level of noise to which he had been exposed, it came as no surprise to me that the defence had not disputed that point.

4. Mr Cremins also gave evidence that, early in the year 1993, he became aware of slight problems with his hearing which he thought might be due to wax in his ears and, accordingly, he consulted an Army doctor who arranged to have his ears syringed. Although the Plaintiff's L.A. 30. (his Army medical book) suggests that his ears were "syringed to good effect", Mr Cremins gave evidence which I accept that he did not consider that it brought about any improvement and that, following the syringing, he still felt that his ears were blocked. He said that, in or about the same time, he was subjected to an audio scope test for his hearing but was not advised of the result of that test and, in particular was not told that there was anything wrong with his hearing. He said that, sometime later; he was not quite sure when, he was referred by the Army Medical Corps for examination by Mr George Fennell, a Consultant E.N.T. Surgeon, who advised him that he should avoid range practice. In this regard, it appears from the Plaintiff's L.A.30. that he saw Mr Fennell on the 23rd August 1994, on which occasion Mr Fennell advised that he should wear double ear protection when exposed to the noise of weapons and it seems to me that that was the occasion on which the Plaintiff first saw Mr Fennell. The Plaintiff's L.A.30 also notes that, when he saw Mr Fennell on the 23rd August 1994, he was also complaining of occasional tinnitus and, when questioned in that regard, Mr Cremins said, that, at that time, he was experiencing tinnitus, or ringing in his ears, once or twice or day; more pronounced at night time. I think that that is probably so. However, Mr Cremins went on to say that, since that time, the incidents of ringing in his earns had progressively increased; so much so that he now experienced it from four to six times daily, mostly during the quiet of night. Indeed, he said that it had become so bad that it prevented him from sleeping and that, on many occasions, during the quiet of night and because he is unable to sleep due to ringing in his ears, he goes down stairs and reads a book until he falls asleep. Alternatively, he said that he delays going to bed for as long as possible in the hope that he will be so tired that the ringing in his ears will not prevent him from sleeping. He said that the episodes of ringing in his ears lasted for twenty or thirty minutes at a time but he conceded that it was not a problem which affected him on every night although it was a very frequent experience. In this regard, Mr Cremins said in direct examination that the ringing in his ears commenced in the year 1993; many years after unprotected exposure to the noise of gun fire and I had evidence from Mr Kelly and from a Mr Dermot Doogan, an Audiologist, who gave evidence on behalf of the Plaintiff , that he had complained to them that the ringing in his ears started in or about the year 1993. However, in reply to a direct question from me, Mr Cremins said that, as far back as when he was a Recruit in the Army, he had experienced ringing in his ears following exposure to the noise of gun fire during range practice but that it then only lasted for a short while and, as I interpreted his evidence, that he had similar experiences following exposure to the noise of gun fire throughout his career in the Army although it did not become a persistent problem until the year 1993. I believe that to be so.

5. Apart from the ringing in his ears. the Plaintiff gave evidence that it was not until the year 1993 that he first realised that he had a problem with his hearing. Initially, he had thought that that problem was due to wax in his ears and it was not until some time later that he appreciated that it was attributable to unprotected exposure to the noise of gun fire. In this regard, in direct examination, the Plaintiff gave evidence that he was never told that the problems with his hearing were attributable to the noise of gun fire until he had an audiogram test at the behest of Mr Fennell in October 1996. I do not think that that is correct. because I had evidence which I accept that, ever before that audiogram test in 1996, the Plaintiff had been referred to a Dr Stephen Flynn, who, apparently, had advised him that the problems with his hearing were attributable to exposure to the noise of gun fire and the proceedings herein were instituted on the 7th March 1995. Accordingly, it is my belief and I so find that the Plaintiff became aware that the problems with his hearing were attributable to exposure to the noise of gun fire sometime between the early part of the 1993 and the month of March 1995. However, it is of no practical relevance when, during that period, the Plaintiff became aware of the cause of his hearing problems because I am quite satisfied that the proceedings herein were instituted well within the time limited for the institution thereof by the provisions of the Statute of Limitations 1957 as amended by he Statute of Limitations (Amendment) Act 1991. Accordingly, I reject the assertion that the Plaintiff's claim herein is statute barred.

6. The Plaintiff gave evidence which I accept that the practical implications of his hearing problems are that he cannot socialise properly. In this regard, he said that, very often, when he is in company, he has to request his companions to repeat themselves because he does not hear what they are saying. Moreover, he said that his wife and his family are ridiculed by others when he manifests difficulty with hearing when in company; it being suggested that, because he is a soldier, he is faking a hearing disability. Mr Cremins also said that he has problems adapting to conversation where there is a background of noise or music, that he has to turn the television up in order to hear it and that his children are constantly complaining on that account, that he has difficulty hearing on the telephone and that people complain that he roars down the telephone. I have no reason to doubt the validity of any of these complaints.

7. As I have already indicated, I heard evidence from Mr Dermot Doogan, an Audiologist, on behalf of the Plaintiff and from Mr Vivian Kelly E.N.T. on behalf of the defence. In the course of their evidence, Messrs Doogan and Kelly referred in detail to the results of seven audiogram tests carried out on the Plaintiff respectively dated:-

8. I was also referred to the results of a cortical E.R.A. (commonly referred to as a CERA) test carried out by Mr Norman on the 10th November 1997 in or about the same time as he carried out the audiogram test of the same date. In addition, in the course of his evidence, Mr Kelly made reference to the results of two other audiogram tests which he believed had been carried out on the Plaintiff; one by Mr Fennell in the month of August 1994 and one by someone in Cork on a date unknown to Mr Kelly. However, as Mr Kelly conceded under cross-examination that he could not be sure that those latter tests had been carried out on the Plaintiff, rather than on someone else of a similar name, I do not think it appropriate that I should have any regard for them in the course of my deliberations. Accordingly, my judgment herein is based on a consideration of the results of the seven numbered audiogram tests and the CERA test to which I have referred, in the light of the evidence of Messrs Kelly and Doogan with regard to the implications of the results of those tests, the evidence of the Plaintiff with regard to the hearing loss and tinnitus which he has experienced and the submissions of Counsel for the respective parties.

9. As I have already indicated, as I interpreted his evidence, it was Mr Kelly's view that the general picture painted by the several audiogram tests and the CERA test to which the Plaintiff was subjected is that he is not, in fact, suffering from a hearing loss. To be fair to Mr Kelly, however, it seems to me that he equates the words "loss", "impairment" and "disability" and, if one applies the formula in the green book, to which I will be referring with greater particularity in due course, to the result of the audiogram test on the Plaintiff of the 10th November 1997 carried out by Mr Norman, it would appear that the Plaintiff has no current hearing disability. Accordingly, as the result of that audiogram test is supported to a certain extent by the result of the CERA test carried out by Mr Norman on the same date (the green book formula cannot be applied to that test because it did not include the level of the Plaintiff's hearing at the 500HZ range), Mr Kelly takes the view that the Plaintiff had no current hearing disability and, therefore, no hearing loss. For his part, however, Mr Doogan was quite satisfied that the general appearance of the results those several audiogram tests and, indeed, the result of the CERA test indicated that the Plaintiff is suffering from a hearing loss and, while he conceded that the profile of the results of the audiogram tests are much flatter than one would expect in the case of a noise induced loss, he was persuaded by the combination of the appearances of the results of the audiogram tests with the history which the Plaintiff gave with regard to his exposure to the noise of gun fire that the loss of hearing from which the Plaintiff is suffering is noise induced. In this regard, Mr Doogan pointed to the fact that there was nothing else in the Plaintiff's history; no illnesses nor exposure to other excessive noises which might account for the Plaintiff's loss of hearing, and, therefore, he concluded that the loss of hearing from which the Plaintiff suffers is attributable to the exposure to the noise of gun fire during his Army service.

10. With all due respects to the views in that behalf expressed by Mr Kelly, I am persuaded by the evidence of Mr Doogan that this Plaintiff is suffering from a hearing loss. Indeed, from my own experience of considering the results of audiogram tests in the context of claims for damages for loss of hearing, it seems to me that each and every one of the seven audiogram tests to which I have referred demonstrate that, to a greater or lesser extent, this Plaintiff is suffering from a loss of hearing and indeed,. that seems to me to be supported by the results of the CERA test. Moreover, if I had any doubt about the matter and, to be quite frank, I do not have one, the evidence, which the Plaintiff, himself, gave with regard to the problems which he experiences with his hearing would have persuaded me that he is, in fact, suffering from a loss of hearing. Furthermore, in the absence of any evidence to suggest an alternative cause for that loss, I am satisfied that it is attributable to the fact that, during his service in the Army the Plaintiff was exposed to excessive noise of gun fire without any or any adequate protection for his hearing.

11. In the light of the foregoing, I am persuaded that the Plaintiff has established his entitlement to compensation. In this regard, by virtue of the provisions of the Civil Liability (Assessment of Hearing Injury) Act 1998, the Courts are required to take judicial notice of a Report therein referred to in all proceedings claiming damages for a hearing injury. This Report is, of course, now known as the Green Book to which I have already referred . The provisions in the 1998 Act have been considered by my colleagues, Mr Justice Lavan, in the case of Green v The Minister of Defence and Others in which judgment was delivered on the 3rd June of last year and by Mr Justice Johnson in a case of Hanley v The Minister for Defence and Others in a judgment which was delivered on the 21st July of last year. Both judges accepted that the formula for assessing hearing loss in the Green Book was a fair and adequate means of measuring disability for hearing loss at any given point in time and should be followed by the Courts unless there are good reasons for not so doing. As I have indicated in several judgments which I have delivered in cases involving claims for damages for loss of hearing, I respectfully agree with those views expressed by my learned colleagues In this case, there does not appear to me to be any. good reason for departing from the formula provided for in the Green Book. However, like Mr Justice Johnson in Hanley's case, I am persuaded that the formula for assessing hearing disability in the Green Book is not complete, in that, it does not allow for further deterioration of hearing caused by the combination of noise induced hearing loss and age related hearing loss. In this regard, as did Mr Justice Johnson in Hanley's case and , as I, myself, have done in several other cases in which I have been involved, I propose to adopt as a reasonable formula for determining the effect of that combination a formula which is to be found in International Standard O199 at paragraph 5.1 on page 6 taken in conjunction with the table on paragraph 11 of that standard. I do so because Mr Doogan gave evidence which was not challenged with regard to the application of that formula to the effect of the combination of this Plaintiff's noise induced hearing loss and the inevitable age related hearing loss which he will experience with the passage of time. Furthermore, as neither party took issue with the approach of Mr Justice Johnson in Hanley's case to the measurement of compensation per degree of established disability and it seems to me that that approach is fair and reasonable, I propose to adopt the same approach.

12. I now come to the thorny question of the proper basis upon which I should determine the amount of compensation to which this Plaintiff is entitled. In this connection, it is obvious that there are significant differences in the degree of hearing loss indicated by the results of the several audiogram tests and by the CERA test of the Plaintiff to which I have referred. Indeed, applying the formula in the Green Book to the results of the seven audiogram tests (as I have already indicated, it is impossible to apply that formula to the results of the CERA test) it appears that the Plaintiff's current hearing disability varies between nill and 11.56% and the combination of his noise induced hearing loss and his inevitable age related hearing loss at age 62 varies proportionately. As will be appreciated, the difference in the financial implications of those variations if one follows the approach of Mr Justice Johnson in Hanley's case to the measurement of compensation per degree of established disability is very considerable. How then do I resolve this conundrum? Mr Kelly gave it as his opinion that I should be guided by the results of the audiogram test on the Plaintiff carried out by Mr Norman on the 10th November 1997 because, firstly, if , on that date, the Plaintiff could hear at the level indicated by the result of that test, that his level of hearing, secondly,. the result of that test is supported, in so far as it goes, by the result of the CERA test which was carried out by Mr Norman on the same date and, in any event, it is established wisdom that, where a person is subjected to a number of audiogram tests for his/her hearing, the result of the test which demonstrates the better hearing is the true level of that person's hearing. In this regard, Counsel for the Defence referred me to an unreported decision of Mr. Justice Peter Kelly given on the 19th January, 1998 in a case of Fenelon v. The Minister for Defence and Others in which the learned Trial Judge followed that line of reasoning and it was submitted that I should do likewise. Mr. Kelly further pointed out that he had requisitioned the tests carried out by Mr. Norman on the 10th November, 1997 following receipt of the results of the audiogram test carried out by Ms. Kelly on the 22nd October, 1997 because, on the results of the audiogram tests carried out by her, Ms. Kelly had noted that the Plaintiff's responses to that test had been inconsistent and, therefore, he, Mr. Kelly, considered the result of that test to be unreliable. On the other hand, Mr. Kelly conceded under cross-examination that there was a clinical consistency between the results of the audiogram tests carried out on the Plaintiff by the Army Medical Corps on the 5th August, 1997, by Ms. Kelly on the 22nd October, 1997 and by Mr. Doogan on the 24th January, 1998 and he agreed that it would require a massive feat of memory on the part of the Plaintiff to replicate those consistencies; the implication being that, because of those consistencies, the results of those three tests more accurately reflect the true level of the Plaintiff's hearing than did the results of the audiogram test and the CERA test carried out by Mr. Norman on the 10th November, 1997. Nevertheless, Mr. Kelly was adamant that the true level of the Plaintiff's hearing was reflected by the results of the tests carried out by Mr. Norman. For his part, Mr. Doogan said that the similarities between the results of the three audiogram tests carried out on the Plaintiff respectively on the 5th August, 1997 by the Army Medical Corps, on the 22nd October, 1997 by Ms. Kelly and on the 24th January, 1998 by himself were too close to support the proposition that the Plaintiff had somehow or other contrived to fake those results. He agreed that, if an audiogram test and a CERA test were taken at the same time and were broadly consistent with one another as was the case with the audiogram test and the CERA test carried out by Mr. Norman on the 10th November, 1997, it would be appropriate to look on the result of the CERA test as reflecting the true level of the hearing loss of the person being tested. However, in this case, he said that it would not be safe to rely on the result of the audiogram test carried out by Mr. Norman on the 10th November, 1997 to the detriment of the the results of the three audiogram tests which were clinically consistent and, of course, the result of the CERA test was incomplete. Mr. Doogan added that, in his view, the "inconsistent responses" noted on the results of the audiogram test carried out by Ms. Kelly on the 22nd October, 1997 did not refer to speech response threshold but to audiometry; the implication being, as I understood it, that they did not reflect a deliberate attempt on the part of the Plaintiff to fake his responses. This was not a view which was shared by Mr. Kelly. Mr. Doogan also pointed to the fact that, at the high frequency level, the result of the CERA test carried out by Mr. Norman was not consistent with the result of the audiogram test of even date carried out by him; in other words that, at the high frequency level, the results of the audiogram test and the CERA test carried out by Mr. Norman could not co-exist and this, Mr. Doogan argued, was another reason why the result of Mr. Norman's audiogram should not be preferred to the results of the audiograms which were clinically consistent.

13. Clearly, the result of the audiogram test on the Plaintiff carried out by Mr. Norman on the 10th November, 1997 indicates that he is suffering from a minimal hearing loss and no disability if the formula in the Green Book is to be applied to it. On the other hand, not only do the results of the three audiogram tests which both Messrs. Kelly and Doogan agree are clinically consistent indicate that the Plaintiff is suffering from a significant hearing loss but so also, albeit perhaps to a lesser extent, do the results of the audiogram tests carried out by Mr. Fennell on the 2nd October, 1996 and by Dr. Flynn on the 11th March, 1998. Accordingly, I think that there is substance to Mr. McCartan's submission on behalf of the Plaintiff, which to a greater or lesser extent is supported by the evidence of Mr. Doogan, that it would be grossly unfair to the Plaintiff were I to prefer the result of the audiogram test carried out by Mr. Norman on the 10th November, 1997 to the exclusion of the results of all the other audiogram tests which were referred to in evidence. I acknowledge that, generally speaking, it is the perceived wisdom that, where a number of audiogram tests are carried out on a person, preference should be given to the one which demonstrates the better hearing as did Mr. Justice Kelly in Fenelon's case. However, as it seems to me that the result of Mr. Norman's audiogram test of the 10th November 1997 is so different from the results of all the other audiogram tests to which the Plaintiff was subjected, I think that it would be an injustice were I to prefer the result of Mr Norman's test. To be quite frank, with all due respects to Mr Kelly, I am so persuaded by the combined appearances of all of the audiogram tests to which this Plaintiff was subjected, coupled with the evidence of Mr Doogan, that the Plaintiff is suffering from a hearing loss in excess of that indicated by Mr Norman's audiogram of the 10th November 1997. However, given the variations in the results of the various audiogram tests to which I have I have referred, I think that it would be equally wrong of me to conclude that the level of the Plaintiff's hearing loss is represented by the test which demonstrates the worst hearing. How, then, should I reconcile the results of all these tests? In this regard, of the results of the three audiogram tests which Messrs Kelly and Doogan agreed were clinically consistent that carried out by the Army Medical Corps on the 5th August 1997 indicated the better hearing so that I think that it is appropriate that I should base my decision largely on the results of that test. In this regard, Mr Doogan gave evidence which was not challenged that, applying the formula in the Green Book to the result of that test, the Plaintiff's current hearing disability is 5%. I accept that to be so. However, while, as I have indicated, I am persuaded to rely on the audiogram test of the 5th August 1997 as indicating the current level of the Plaintiff's hearing loss, I do not think that I can ignore entirely the fact that that finding will have large implications on the combined effect of the Plaintiff's noise induced hearing loss and his age related hearing loss at age 62. Using formula ISO199, Mr Doogan tells me, that based on a current hearing disability of 5%, the combination of the Plaintiff's noise induced hearing loss and his age related hearing loss at age 62 would be 15.45%. This is in stark contrast to what that combination would be if it were determined by reference to the results of Mr Norman's audiogram test of the 10th November 1997, in which event, the result would be .417%. Now, although I have decided that it would be wrong for me to prefer the result of Mr Norman's audiogram test to the exclusion of the results of the other audiogram tests, I am not convinced that I can ignore it altogether; particularly, as the results of the audiogram test carried out by Mr Fennell on the 2nd October 1996 and by Dr. Flynn on the 11th March, 1998 are more proximate to the results of Mr Norman's audiogram than they are to the three clinically consistent audiograms which I have referred to. Accordingly, perhaps somewhat arbitrarily, I think it appropriate that I should discount Mr Doogan 's figure of 15.45% in respect of the combination of the Plaintiff's induced hearing loss and his age related hearing loss at age 62 and, for those reasons, will allow 10% in respect of that combination.

14. In the light of the evidence which I heard with regard to the tinnitus suffered by the Plaintiff, I think that, following the guidelines in that behalf in the Green Book, it could reasonably be classified as moderate and, accordingly, will allow 2% disability in respect of it.

15. Having regard to the foregoing and allowing that the Plaintiff is now 45 years of age, I will assess damages as follows:-

16. For the sake of completeness, I would emphasise that, despite the variations in the results of the various tests to which he was subjected, I am satisfied that the Plaintiff is an honest person and did not deliberately attempt to falsify any of those results.