High Court of Ireland Decisions

1. The Plaintiff in this case, Patrick Kerwick, is a 43 year old taxi driver. He was born on the 8th May, 1955 and he lives with his wife and four children in Clonmel in the County Tipperary. He enlisted in the Irish Army in the year 1972 and was a serving soldier for some nine years. He left the Army in the year 1981 and, for a period of three years, worked as a security officer protecting factory premises. He then purchased a taxi and, for the last eight years, has occupied himself as a taxi driver. In the light of the evidence which I heard at the trial of this action, I am satisfied that, with the exception of the period during which he was a serving soldier, Patrick Kerwick did not engage 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, Patrick Kerwick was exposed to the noise of gunfire from a variety of weaponry; including, in particular, mortar fire arising from the fact that he was a member of the Army shooting team for two years. However, although that noise was excessive, he was never provided with any protection for his hearing. In consequence, he claims that he has suffered a noise-induced hearing loss and tinnitus in respect of which he comes before the Court claiming damages. In this regard, while conceding responsibility for any noise-induced hearing loss, or tinnitus, which the Plaintiff established in evidence, the Defendants maintain that his claim herein is barred by virtue of the provisions of the Statute of Limitations 1957 as amended by the Statute of Limitations 1991. They also maintain that, insofar as the Plaintiff establishes that he has suffered a noise-induced hearing loss, or tinnitus, as a result of his exposure to excessive noise, the compensation to which he is entitled to be calculated solely on the results of three audiogram tests on the Plaintiff respectively carried out by Dr. Stephen Flynn on the 19th September, 1995, by an audiologist on behalf of the Defendants on the 18th March, 1998 and by Mr. Dermot Dougan, an audiologist, on the 17th December, 1998, viewed in the light of the formula contained in the Report referred to in the Civil Liability (Assessment of Hearing Injury) Act, 1998; now known as the Green Book, in respect of which, by virtue of the provisions of the said Act, the Courts are required to take judicial notice in all proceedings claiming damages for a hearing injury. In this connection, the provisions of the said Act have been considered by a number of my colleagues; in particular, by Mr. Justice Vivian Lavan in Greene's case (judgment delivered on the 3rd June, 1998) and by Mr. Justice Richard Johnson in Hanley's case (judgment delivered on the 21st July, 1998) and both of these judges have accepted that the formula for assessing a hearing loss in the Green Book is a fair and adequate means of measuring disability for such loss at any given point in time which should be followed by the Courts, unless there are good reasons for not so doing. This is a view to which I also subscribe.

3. Patrick Kerwick gave evidence that, during his period of service in the Army and after his exposure to the noise of gunfire on the firing range, he would experience very bad noise in his ears which persisted for three or four days and then disappeared. He said that his colleagues in the Army were similarly afflicted and that he appreciated that the cause of the problem was exposure to the noise of gunfire but that he made no complaint to his superiors because, as he said, if he had complained, would be told that there was no problem and, accordingly, any complaint would be a waste of time. However, the Plaintiff said that, a couple of years after he had left the Army, the noise in his ears recurred and, with the passage of time since then, has become more frequent and insistent; so much so that it is now a daily experience and significantly interferes with his capacity to sleep. In this regard, the Plaintiff described the lengths to which he now has to go in his efforts to achieve sleep during the quiet of night; including putting his television on a timer in the hope that he will fall asleep before it turns itself off, a practice which does not please his wife. However, despite the fact that this problem recurred within a couple of years of the Plaintiff leaving the Army and despite the fact that he appreciated that it was attributable to exposure to the noise of gunfire during his period of Army service, the Plaintiff did nothing about it and, in particular, apart from mentioning the problem casually when, in 1989, he was being examined by a doctor with regard to a problem with his back, he did not seek medical advice or treatment with regard to it. In those circumstances, while I do not doubt the Plaintiff's evidence with regard to the problems which he is currently experiencing on account of this noise in his ears, I am equally satisfied; not only that any claim that he might have in respect thereof is long since barred by the provisions of the Statute of Limitations 1957, as amended, but that, in any event, the Plaintiff is precluded from maintaining a claim in respect of compensation for tinnitus by virtue of the provisions of the Green Book which require documented evidence of his having attended a primary care physician for advice and management with regard to tinnitus before pursuing such a claim. There was no such evidence in this case and, accordingly, so far as the Plaintiff's claim herein relates to tinnitus, I am satisfied that it has not been sustained.

4. With regard to his loss of hearing, the Plaintiff said that he was not aware that he had any problem with his hearing until about eight or ten years ago when he noticed that his family were complaining that there was something wrong with his hearing. In particular, they complained that he played the television too loud. Moreover, he, himself, noticed that, when he was in a crowded environment, he found it difficult to understand what people were saying to him and he found this to be very embarrassing. Furthermore, if the radio in his taxi was on, he found it difficult to hear passengers sitting in the back of the taxi and he had the same problem when using the two-way radio in the taxi. Although he said that his hearing difficulties have got progressively worse over the years; particularly, where there is a background of noise, in which event he cannot now hear people on a one-to-one basis, Mr. Kerwick said that he did not associate his hearing difficulties with his Army experience until, in the year 1994, he read in the newspapers that former soldiers were having hearing problems as a result of the exposure to the noise of gunfire without protection for their hearing, following which he discussed the matter with some of his former colleagues, was advised to consult a solicitor, which he did, thereby starting a train of events which culminated in the institution of these proceedings.

5. The Plaintiff was cross-examined with regard to his failure to consult a doctor about his hearing problems but he said that they developed so gradually that they did not affect him to the extent that he thought about seeking medical advice and he added that it was not until he had been told that he was suffering from a hearing loss, following referral to Dr. Flynn by his Solicitor, that he became very conscious of it. As the Plaintiff's evidence with regard to the practical implications of the hearing loss which he is suffering was not seriously challenged under cross-examination and it did not appear to me that he exaggerated the problem or embellished upon it in any significant way, I am satisfied he is suffering a significant hearing loss which interferes with his quality of life and in respect of which he is entitled to compensation. I am equally satisfied that it was not until 1994 that he first appreciated that his hearing difficulties were attributable to exposure to the noise of gunfire while he was a serving soldier and, therefore, I do not think that his claim herein is statute barred.

6. Mr. Dermot Dougan, an audiologist, referred to the results of the three audiogram tests to which I have already alluded. He said that the results of those tests indicated that the Plaintiff was suffering from a high frequency loss of hearing which peaked at the level of 4000 hz. and levelled at the 8000 hz. range. He said that this was a classical indication of a noise-induced hearing loss and, given the Plaintiff's history, it was his opinion that it was attributable to unprotected exposure to the noise of gunfire during his period of service in the Army. He said that the results of the tests indicated that the Plaintiff's loss of hearing was severe and was more pronounced in the right ear than it was in the left ear. He said that the results of all three tests were very similar; as he put it "clinically, they are all the same" . He pointed to the fact that the results of the test indicated that, at the low frequency range, the Plaintiff's hearing was normal and that, while there was a differential in the low frequencies, the average variation was only 10 decibels. In that regard, Mr. Dougan referred to the Green Book wherein the compilers had chosen a low fence threshold of 20 decibels as the level at which a hearing disability is deemed to commence so that any hearing loss lower than 20 decibels did not amount to a hearing disability within that meaning in the Green Book. Accordingly, Mr. Dougan said that the effect of fixing a low fence threshold of 20 decibels at which a hearing disability is deemed to commence can and, in the case of this Plaintiff, does distort the implications of the high frequency loss demonstrated by the results of the three audiogram tests to which he was subjected, in that, the fact that the results of those tests indicate that the Plaintiff has very good hearing at the low frequency range will reduce the implications of the high frequency loss of hearing demonstrated by the tests when the formula in the Green Book for determining a hearing disability is applied even though the reality is that the high tone loss of hearing is exactly the same. In other words, because this Plaintiff has good hearing at the low frequency range and because the low fence threshold at which disability is deemed to commence is fixed at 20 decibels by the Green Book, the application of the formula in the Green Book for determining the level of a hearing disability suggests that the Plaintiff's loss of hearing at the high frequency range is considerably less than it actually is. Accordingly, it was Mr. Dougan's opinion that the application of the provisions of the Green Book to the results of the three audiogram tests to which the Plaintiff was subjected did not reflect the actuality of the extent of the Plaintiff's high tone hearing loss and did him a disservice. To emphasise this point, Mr. Dougan said that, applying the formula in the Green Book to the results of the three audiogram tests for the purpose of determining the current level of the Plaintiff's percentage hearing disability, the result would vary between a nil disability and a 0.31% disability whereas, if there was no low fence threshold at which disability commences provided for in the Green Book, that loss would be 5%.

7. Under cross-examination, Mr. Dougan agreed that, apart from the provision with regard to the low fence threshold, there were other anomalies in the Green Book which, when applying the formula for determining a hearing disability, would distort the extent of that disability. In particular, he agreed that, had the Plaintiff's hearing at the level 3000 hz. been included in the formula, the extent of his high tone hearing loss based on the results of the three audiogram tests would have been less than what it actually was. However, he would not agree that that was a good reason for ignoring the low fence threshold because, as he pointed out, a low fence threshold of 20 decibels was appropriate for a person of 61 years of age rather than for a person of the Plaintiff's age. Moreover, while he accepted that, where a person was subjected to a number of audiogram tests, the result of the test which indicated the better hearing would appear to establish what the level of that person's hearing was, Mr. Dougan did not agree that it necessarily followed that one should always choose the result of the test which demonstrated the better hearing as the basis for determining a hearing disability because, as he said, the result of any audiogram test depended on the conditions which obtained at the time when the test was undertaken and it could well be that, where a person was subject to a number of tests, the conditions which obtained on each occasion were different thereby producing different results. Accordingly, it was his view that, when confronted with the results of a number of different audiogram tests, the level of any hearing disability demonstrated by those tests should be determined on the global picture painted by those results rather than on the result of any one of them.

8. I am persuaded by the evidence of Mr. Dougan that, in the case of this particular Plaintiff, the low fence threshold for hearing disability provided for in the Green Book does distort the extent of his high tone hearing loss to an unacceptable degree, in that, when taken into account in determining the extent of the Plaintiff's hearing disability, the end result suggests that that disability is significantly less than what it actually is. Accordingly, I think that it would be manifestly unjust to the Plaintiff were I to determine the extent of his hearing disability having regard for the low fence threshold in the Green Book. In those circumstances, I think that this is a case in which an exception should be made to the general principle heretofore stated by my judicial colleagues and, indeed, by myself in other cases involving claims for damages for a hearing loss that the formula for assessing such a loss in the Green Book is a fair and adequate means of measuring disability for hearing loss and should be followed by the Courts because, as I have indicated, were I to do so in this case, the level of the Plaintiff's damages would be considerably less than what would be appropriate for the true extent of his hearing disability. In other words, I think that this is a case in which there are good reasons for departing from the formula in the Green Book. In any event, the Plaintiff has satisfied me that his hearing loss has inhibited his quality of life and, in the light of the views in that behalf expressed by Mr. Justice Barron in an unreported judgment given in November 1995 in a case of Bastick v. The Minister for Defence , that is something which I am also entitled to take into account when assessing the Plaintiff's damages and I do so.

9. Having regard to the foregoing, I am satisfied by the evidence of Mr. Dougan that the true level of this Plaintiff's hearing disability, if one ignores the low fence threshold in the Green Book, is 5%. Moreover, as neither party took issue with the approach of Mr. Justice Johnson in Hanley's case to his measurement of compensation per degree of established disability and it seems to me that that approach is a fair and reasonable one, I propose to adopt the same approach. Accordingly, as the Plaintiff is now 43 years of age, I will award a sum of £2,350 per 1% of his current hearing disability which, allowing that that disability is 5%, amounts of £11,750. In addition, I note and accept Mr. Dougan's evidence that, if one excludes the low fence threshold in the Green Book from the equation, the combination of the Plaintiff's current hearing disability and his inevitable age-related hearing loss at age 62 years calculated in accordance with the formula in International Standard ISO 199, based on the result of Mr. Dougan's audiogram test of 17th December, 1988, which is the test which demonstrated the better hearing, is of the order of an additional 4%. I have no doubt but that, having excluded that threshold in determining the extent of the Plaintiff's current hearing disability, I should also exclude it when determining the extent of the combination of his current hearing disability and his inevitable age-related hearing loss and, accordingly, I determine at age 62, that combination will amount to a 4% disability in respect of which the Plaintiff falls to be compensated at a rate of £1,500 per 1% which I calculate to be £6,000. However, I am advised that a figure of £6,000 for Mr. Kerwick at age 62 would, actuarially speaking, have a current value of £3,234.50 and I will allow that figure. Accordingly, I would assess damages in this case in the sum of £14,984.50.