High Court of Ireland Decisions

Farrell v. Minster For Defence [1999] IEHC 16 (16th July, 1999)

BETWEEN

JUDGMENT of Mr Justice Diarmuid B. O'Donovan delivered on the 16th day of July 1999.

1. The Plaintiff, in this case, Jim Christopher Farrell, is a member of the Defence Forces with the rank of Sergeant. He is 38 years of age having been born on the 28th March 1961 and he resides with his wife and three young children at 31 Seven Springs, Newbridge, in County Kildare. He enlisted in the Irish Army in the year 1978 and has been a serving soldier ever since. During the last 18 years of his service, he has been attached to a section of the Army known as the Rangers Wing, which, apparently, is an elite Corps. However, for the last nine years of his service, he has been attached to the administrative section of that Corps which involves a considerable amount of administrative duties but, nevertheless, he conceded under cross-examination that his duties also require his attendance at the firing range, either in a supervisory capacity, or for the purpose of firing weaponry himself, on quite a number of occasions. Apart from his service in the Army, there was no evidence to suggest that the Plaintiff engaged in any activities which involved his exposure to excessive noise, nor was it suggestedthat he ever suffered from any disease or illness which might have had a detrimental affect on his hearing.

2. It was common case that, during his period of service in the Army, Jim Christopher Farrell was exposed to the noise of gunfire from a variety of weaponry and to the noise of stun grenades and explosives; for the most part, without adequate protection for his hearing although some protection began to be provided in or about the year 1989. Nevertheless, although it is accepted by the defence that the noise to which the Plaintiff was exposed was excessive, it is also conceded that, for a considerable period of his Army service, he was not provided with adequate protection for his hearing. In consequence, the Plaintiff claims that he has suffered a noise induced hearing loss andtinnitus in respect of which he comes before the Court claiming damages.

3. The Plaintiff gave evidence that he first became aware of a buzzing in his ears; he thinks about four or five years ago but he said that, as the problem "crept up on him" he cannot be sure when he really became aware of it. However, since he has become aware of it, the buzzing has become worse and is particularly intrusive in a quite environment and, especially, when he is trying to get to sleep at night time. He said that, before he became aware of this buzzing in his ears; as he thought, about four or five years ago, he did not notice it even on a temporary basis. Furthermore, SergeantFarrell said that, in or about the same time i.e. about four or five years ago, he became conscious of the fact that he had difficulty hearing on the telephone with his left ear and that he also had difficulty hearing people speaking to him when there was a background of noise and that he found that he was always turning up the sound on his television so that he might hear it properly. As a result of these problems, the Plaintiff consulted the Army Medical Corps by whom he was subjected to anaudiogram test on the 2nd August 1995, following which he was advised that he was required to wear ear plugs and ear muffs at all times on the firing range, that he was restricted to firing small arms, that he could no longer engage in competitive firing, that he was to avoid support weaponry and other obvious sources of loud noise, that he was to attend theE.N.T. clinic and report back to the medical officer and that he was to have a repeat audiogram within twelve months. Sergeant Farrell said that it was only when he received that advice that he appreciated for the first time that his hearing was damaged and that that damage had been occasioned by his exposure to the noise of gunfire and I had no difficulty in accepting his evidence in that regard. Confirmation of the advice given to the Plaintiff on the 2nd August 1995 is contained in his Army medical records, known as hisL.A. 30.

4. The Plaintiff gave evidence that he had another audiogram on the 17th October 1995, following which his Army medical grade was reduced to H.4. A further audiogram was carried out on the 22nd December 1995 and on that occasion, he complained of the buzzing in his ears which he was experiencing but was given no advice as to how he might deal with it. He said that this buzzing has persisted to the present day and that, although it affects both ears, it is more pronounced in his left ear. He said that it was a constant companion; being present both day and night, but that, in the quiet of night, it prevented him from getting to sleep although, when he eventually achieved sleep, he was not woken up by the buzzing. On the other hand, he conceded that the buzzing in his ears had no practical implications in the course of executing his duties during the day time. As he put it"I can live with it during the day but not at night". Again, I considered that the Plaintiff was a credible witness with regard to his complaints of tinnitus and how it has affected him.

5. In so far as his loss of hearing is concerned, the Plaintiff gave evidence that he can no longer hear with his left ear on the telephone. Moreover, he has problems hearing conversation when in a group or, indeed, in any social environment and he is only comfortable when conversing on a one to one basis. As a result, he finds that his social life is restricted and, in particular, he is less inclined to visit public houses, as he was wont to do, because he has difficulty talking to people. At home, if he wants to hear the television, he has to turn it up very loud; so much so that he cannot hear what his children are doing and, as he said, they are doing what they like. He said that, over the years, the hearing in his left ear has got progressively worse.

6. The Plaintiff said that he was promoted to the rank of Sergeant in the year 1988 following which he attended a course which qualified him for promotion to the rank of company sergeant; a rank to which he aspires. However, he is concerned that, because of his loss of hearing and, in particular because his medical grade in the Army is now H.4 as a result of which he is restricted from firing heavy weaponry, he will not achieve that promotion. He added that, when he was subjected to anaudiogram by a Ms Nugent, she suggested that he might benefit from a hearing aid in his left ear and, in fact, she gave him a hearing aid on a trial basis and he found that it improved his hearing considerably. However, she told him that the cost of such an aid would be about[sterling]1,000, which he cannot afford. That as it may be, he said that he intends to purchase one as soon as he is able to afford to do so. Under cross-examination, the Plaintiff confirmed that he did not become aware of his hearing loss until about four or five years ago but that, at that time, he was not fully aware of the claims in respect of deafness which were being made by his Army colleagues. The Plaintiff also said that, on the occasion on which MsNugent had given him a hearing aid on a trial basis, he only wore it for a few minutes.

7. Captain Gary Gartland, an Administrative Officer in the Army Ranger Wing, gave evidence that he was aware of the Plaintiff's medical categorisation insofar as his hearing was concerned and that he is currently rated at Grade H.4. Accordingly, restrictions are imposed upon him with regard to the duties which he can undertake but, nevertheless, there is no restriction with regard to his duties in the administrative section of the Army Ranger Wing. Moreover, insofar as the Plaintiff's prospects for promotion to the rank of company sergeant are concerned, it was CaptainGartland's evidence that he is qualified, suitable and medically qualified for such promotion and, as I can see no reason to doubt Captain Gartland's evidence in that regard, I think that the Plaintiff's expressed concern that his prospects for promotion have been adversely affected by his hearing problems are without foundation.

8. In addition to the foregoing, I heard evidence on behalf of the Plaintiff from Mr. George Fennell, a E.N.T. Consultant, from Ms Judith Nugent, an Audiologist, and from Mr. Dermot Dougan, another Audiologist and evidence on behalf of the defence from Mr. Alexander Blayney, a E.N.T. Consultant and from Mr. Peter Gormley, another E.N.T. Consultant who, incidentally, was one of the contributors to 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 that Act, the Courts are required to take judicial notice of in all proceedings claiming damages for a hearing injury. To a greater or lesser extent, each of these five witnesses referred to the results of fouraudiogram tests on the Plaintiff respectively carried out by Ms Nugent on the 3rd March 1997 and the 15th March 1999, by a Ms Kelly, another Audiologist on behalf of the defence, on the 20th April 1998 and by Mr. Dougan on the 19th June 1999. Again, to a greater or lesser extent, each of these five witnesses agreed that the results of those tests manifested the same profile and were largely consistent with one another. Moreover, they agreed that, while the results of those tests demonstrated that the Plaintiff had very good hearing in the low frequency range, they also indicated that he had a significant loss of hearing; particularly in his left ear, at the high frequency range and, given his history, the probabilities were that that loss of hearing was noise induced arising from the Plaintiff's exposure to the noise of firearms during his period of Army service. Furthermore, MsNugent gave evidence that, when she conducted the audiogram tests on the Plaintiff on the 3rd March 1997 and the 15th March 1999, she also matched the tinnitus of which the Plaintiff was complaining at the 4000 hz. range in both ears, although more pronounced in the left ear, and it was her view; a view with which, as I interpreted their evidence, Messrs Fennell, Dougan, Blayney and Gormley agreed that that tinnitus was also noise induced. In the light of the evidence given by those five witnesses, I am persuaded that Sergeant Farrell is, indeed, suffering from noise induced loss of hearing and tinnitus as a result of his exposure, without adequate protection for his hearing, to the noise of gunfire from a variety of weaponry during his period of Army service and that he is entitled to compensation in respect thereof.

9. For the sake of completeness, I should add that, I was surprised at the Plaintiff's evidence that, notwithstanding that he been exposed to the noise of gunfire without adequate protection for his hearing since he enlisted in the Irish Army in the year 1978, it was not untilsome four or five years ago that he first experienced a buzzing in his ears because it has been my experience, from evidence which I have heard in similar claims to that of this Plaintiff, that Army personnel complaining of noise induced tinnitus almost invariably say that the onset of buzzing in their ears was coincidental to their exposure to the noise of gunfire; albeit, initially, on a temporary basis. Indeed, that evidence provoked the suggestion by Mr. Gormley that, perhaps, the tinnitus of which the Plaintiff was complaining was not, in fact, noise induced but was attributable to some other cause. However, as Mr. Gormley conceded that the results of the several audiogram tests to which the Plaintiff had been subjected indicated that he was suffering from a noise induced loss of hearing which was matched with the tinnitus of which he was complaining at the 4000 hz range and there was nothing in the Plaintiff's history to suggest any other likely cause of that tinnitus, he agreed that the probabilities were that the tinnitus of which the Plaintiff was complaining was noise induced and I am persuaded that that is so. Moreover, although the Plaintiff did not attend a primary care physician for advice and management with regard to his tinnitus prior to the institution of these proceedings; that being a prerequisite in the Green Book for establishing a claim for damages for tinnitus, I am satisfied that, before these proceedings were instituted, he did complain to the Army Medical Corps of the fact that he was suffering from tinnitus but was given no advice as to how he might deal with the problem and, in my view, the fact of that complaint is sufficient to establish his entitlement to damages notwithstanding the provisions in the Green Book.

10. There was controversy as to whether or not the use of a hearing aid might benefit the Plaintiff's hearing. In this regard, the Plaintiff, himself, gave evidence that, when he was provided with a hearing aid on a trial basis by Ms Nugent; albeit only for a few minutes, his hearing was considerably improved and it was Ms Nugent's opinion, based on the result of that trial, that the use of a hearing aid in each ear would considerably improve the clarity of the Plaintiff's hearing and would also diminish the affect of the tinnitus which he was experiencing. Accordingly, it was her recommendation that he should wear a hearing aid in both ears. For his part, Mr. Fennell thought that the use of a hearing aid would reduce the affect of the tinnitus of which the Plaintiff was complaining but he only recommended the use of an aid in the left year which he said would bring the Plaintiff's hearing in that ear in line with the hearing in his right ear. However, he was satisfied that the overall result of the use of a hearing aid in the left ear could significantly reduce the extent of the Plaintiff's hearing handicap; so much so that, while, without the use of a hearing aid, the Plaintiff would have problems securing employment in civilian life, when he retired from the Army, those problems would be considerably lessened if, at that stage, he was wearing a hearing aid. Both Mr.Blayney and Mr. Gormley were dubious about the benefits which the Plaintiff might obtain from the use of a hearing aid and neither of them were impressed by the Plaintiff's evidence with regard to the improvement in his hearing which he experienced when he tested a hearing aid at the behest of MsNugent. In their view, the trial period; a few minutes, was far too short to enable a proper judgment to be made on whether or not the hearing aid was effective. As Mr. Gormley put it, it is necessary to wear a hearing aid in a living experience, i.e. in the home and in a crowded environment with a background of noise before a judgment can be made as to whether or not it improves one's hearing. However, Mr. Blayney conceded that it might well be that, after a proper trial period, the Plaintiff could find that his hearing was improved and that the intrusive affect of the tinnitus which he was experiencing was diminished by the use of a hearing aid and, while Mr. Gormley was adamant that he would not recommend the Plaintiff to purchase one, he said that he would not prevent him from buying one; if he was of a mind to. Nevertheless, both Mr. Blayney and Mr. Gormley were positive that, whatever benefit the Plaintiff might obtain from the use of a hearing aid in his left ear, there was nothing to be gained by his using one in his right ear. Indeed, as I interpreted their evidence, the use of two hearing aids was likely to prove counterproductive, in that, it could add a noise factor to the Plaintiff's hearing problems. Notwithstanding the reservations in that behalf expressed by MessrsBlayney and Gormley, it seems to me from the evidence of the improvement in his hearing which the Plaintiff experienced when he tested the hearing aid supplied by Ms Nugent; albeit that the trial period was a very short one, and on the evidence of Ms. Nugent, herself, and that of Mr. Fennell, that it is more likely than not that the use of a hearing aid will not only improve the clarity of the Plaintiff's hearing but will also help to diminish the intrusive affect of the tinnitus which he is experiencing. Indeed, I infer from Mr. Blayney's evidence that, while he is not convinced that a hearing aid will improve the Plaintiff's hearing, he does think that it would help to reduce the affect of his tinnitus. However, with the exception of Ms. Nugent, no one recommends that the Plaintiff should wear a hearing aid in his right ear and, accordingly, with all due respect to her views in that behalf and, as I say, notwithstanding the reservations expressed by Messrs Blayney and Gormley, I am persuaded that a hearing aid in his left ear would benefit the Plaintiff's hearing and his tinnitus and, in the long term, would open doors to employment in civilian life which might not otherwise be open to him.

11. As I have already indicated, all of the expert witnesses, who gave evidence at the trial of this action, were agreed that the results of the several audiogram tests to which the Plaintiff had been subjected indicated that he is suffering from a noise induced loss of hearing at the high frequency range; particularly in his left ear. However, they did not all agree on the extent of that loss. Mr. Fennell described his current loss of hearing in his left ear as "marked" whereas that in the right ear was of a mild nature but he said that, with the passage of time, the Plaintiff's hearing will deteriorate at a rate of 8 decibels per annum so that, by the time that he attains the age of 60 years, he will have a severe loss of hearing in his left ear and a moderate loss of hearing in his right ear. For his part, Mr.Dougan thought that the current loss of hearing in the Plaintiff's left ear was severe and that in his right ear of a moderate nature but he had no doubt that it does and will for the future affect his quality of life. On the other hand, Mr. Blayney thought that the loss of hearing demonstrated in the Plaintiff's left ear was of a moderate nature and that in the right ear of a mild nature whereas it was Mr. Gormley's view that the loss of hearing indicated by the results of the several audiogram tests to which the Plaintiff had been subjected suggested to him that he had a mild hearing handicap. However, the crucial question that I was asked to decide in this case was whether or not, whatever conclusion I reached with regard to the extent of the Plaintiff's loss of hearing, it was appropriate that I should calculate thelevel of the Plaintiff's hearing disability in accordance with the formula in that behalf contained in the Green Book. In this regard, while Mr Fennell expressed no view on the subject, Messrs Dougan, Blayney and Gormley were all of the view that, in so far as this particular Plaintiff is concerned, it would be unfair were I to calculate the extent of his hearing disability in accordance with the formula in that behalf laid down in the Green Book because of the fact that the compilers of that book had chosen a low fence threshold of twenty decibels as the level at which a hearing disability is deemed to commence so that any hearing loss lower than twenty decibels does not amount to a hearing disability within the meaning of the book. Accordingly, as the results of the severalaudiogram tests to which this Plaintiff was subjected indicate that he has very good hearing at the low frequency range, the effect of that low fence threshold, when one applies the formula for determining a hearing disability laid down in the Green Book, is to distort the implications of the high frequency loss of hearing which is also demonstrated by the results of thoseaudiogram tests. In other words, because of the existence of the low fence threshold, the fact that the Plaintiff has very good hearing at the low frequency range will reduce the implications of his loss of hearing at the high frequency range 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. Accordingly, the application of the formula in the Green Book for determining the level of this Plaintiff's hearing disability would suggest that his loss of hearing at the high frequency range is considerably less than what it actually is. In the light of that evidence, I do not think that I have any option but to conclude that. notwithstanding the provisions of Section 3 of the Civil Liability (Assessment of Hearing Injury) Act 1998 whereby I am required to take judicial notice of the Green Book in all proceedings claiming damages for personal injury arising from a hearing injury, it would be wholly inappropriate for me to calculate the level of this Plaintiff's hearing disability in accordance with the formula in that behalf in that book. If so, how then do I assess the amount of compensation to which this Plaintiff is entitled? In this regard, MrDougan suggested that I take the formula in the Green Book for determining a hearing disability and that I apply it to the results of the several audiogram tests to which the Plaintiff was subjected but that, instead of using the actual readings on those audiogram tests at the low frequency range, I should substitute twenty decibels (the low fence threshold) for each of those readings which is under twenty decibels. In that way, Mr Dougan maintained that the detrimental effect of the low fence threshold on the extent of the Plaintiff's high tone loss of hearing is avoided. In this regard, it is, I think, relevant that I should advert to the fact that in two cases which I decided recently, i.e.Patrick Kerwick v The Minister for Defence, Ireland and the Attorney General (judgment delivered on the 19th day of March 1999) and Patrick Hallissey v The Minister for Defence, Ireland and the Attorney General (judgment delivered on the 15th day of June 1999) I was persuaded by Mr Dougan that the effect of the low fence threshold in the Green Book distorted the extent of the high tone hearing loss which the Plaintiffs in each of those cases was shown to be suffering from and, accordingly, when assessing the amount of compensation to which each of those Plaintiffs was entitled, I applied the alternative formula which MrDougan has suggested that I should apply in this case. However, in neither of those cases was Mr Dougan's alternative formula challenged on any scientific basis; the argument on behalf of the defence merely being that the low fence threshold in the Green Book did not significantly distort the extent of either Plaintiff's high frequency loss of hearing and that, accordingly, there was no good reason why I should depart from the formula in the Green Book in determining the extent of their hearing disability. Accordingly, in the absence of a scientific challenge to MrDougan's alternative formula in either of those cases, I accepted and applied it. In this case, however, while they both agree that, because of the provision with regard to the low fence threshold in the Green Book, it would be unfair to this Plaintiff were I to determine the extent of his hearing disability in accordance with the formula in that behalf in the Green Book, both MrBlayney and Mr Gormley are adamant that it would be equally inappropriate were I to determine the extent of the Plaintiff's hearing disability in accordance with the alternative formula suggested by Mr Dougan. While neither of them were prepared to accept that the provisions of the Green Book were flawed, they agreed that there was an arbitrary aspect to the provision with regard to the low fence threshold; an arbitrary aspect which, in this case, would unfairly prejudice the Plaintiff were the formula in the Green Book for determining the extent of his hearing disability applied. However, they both maintained that Mr Dougan's alternative formula was even more arbitrary, in that, whereas the compilers of the Green Book had conducted a considerable amount of research before they decided to include the low fence threshold in the formula for determining a hearing disability in the Green Book, and that, therefore, there was some scientific basis for that threshold, there was no basis whatsoever for the alternative formula suggested by MrDougan. In fact, Mr Blayney went so far as to describe Mr Dougan's alternative formula as "scientifically unsound, fallacious and creative audiology" and Mr Gormely said that it was not based on reality, in that, it merely involved substituting at the low frequency range of the results of the several audiogram tests to which the Plaintiff was subjected a reading of twenty decibels in place of the actual readings. Under cross-examination, while he conceded that his alternative formula was arbitrary, Mr Dougan maintained that it was no more arbitrary and no more creative audiology than is the formula in the Green Book although he conceded that the provisions of the Green Book had resulted from a considerable amount of research by internationally eminent experts.

12. While I am persuaded by the evidence which I heard that it would be manifestly unjust to the Plaintiff were I to determine the extent of his hearing disability taking into account the low fence threshold in the Green Book, I am equally persuaded by the evidence of MessrsBlayney and Gormley that it would be equally inappropriate for me to determine the extent of the Plaintiff's disability in accordance with the alternative formula suggested by Mr Dougan because it seems to me that, in so far as the Plaintiff is concerned, there is no more reality to that formula than there is to the formula in the Green Book. Accordingly, in assessing the amount of compensation to which I think that the Plaintiff is entitled, I propose to ignore the provisions of the Green Book and to adopt the suggestion of Mr Butler, on behalf of the defence and follow the principles which obtained with regard to the assessment of such damages before the Green Book came into existence. In addition I am bearing in mind the decision of Mr JusticeBarron in an unreported judgment given in November 1995 in a case of Bastic v the Minister for Defence, in which the learned trial judge held that the determining factor when assessing compensation for loss of hearing is the effect which that loss of hearing has on the victim's quality of life. Accordingly, allowing that I do not doubt the evidence which the Plaintiff gave with regard to the effect which the loss of hearing and thetinnitus which he has experienced has had on him since he became aware of it some four or five years ago, I will award a sum of [sterling]10,000 for general damages to date. As for the future, assuming that the Plaintiff provides himself with a hearing aid for his left ear and that it improves the clarity of his hearing and diminishes the intrusive effects of the tinnitus which he is experiencing and, furthermore, that it will reduce the inhibiting effect which his loss of hearing might have on his prospects for obtaining employment in civilian life when he retires from the Army, but allowing that, over the years, his hearing will deteriorate because of the combined effect of his noise induced hearing loss and the inevitable age related hearing loss which he will experience, I will allow a sum of[sterling]15,000.

13. In addition to the foregoing, I think that the Plaintiff is entitled to have provision made for the capital cost of purchasing one hearing aid and the cost of replacing it for the rest of his life. In that regard, I accept the evidence of Ms Nugent that the cost of purchasing an appropriate hearing aid for the Plaintiff is [sterling]900 and that it will require to be replaced every six and a half years or so. In the light of the evidence of Mr John Logan, the Actuary, I accept that the capital cost involved is a sum of [sterling]3,424. Furthermore, I accept that it will cost the Plaintiff [sterling]25 per annum to purchase batteries for his hearing aid and, while there was some dispute as to whether or not he might also incur servicing charges, I will somewhat arbitrarily allow that he will incur a further [sterling]25 per annum under that heading. Again, in the light of the evidence of Mr Logan, I accept that the capital costs of these two items is [sterling]244. However, I understand from Mr Logan that the combined capital cost of purchasing, replacing and servicing the hearing aid and of providing batteries for it falls to be discounted at a rate of .6788% on account of immediate payment and, accordingly, I will allow a sum of [sterling]2,500 under that heading which is approximately .6788% of [sterling]3,668.

14. In the light of the foregoing, there will be judgment for the Plaintiff for [sterling]27,500.