High Court of Ireland Decisions

1. The Plaintiff in this case, Patrick Hallissey, is a member of the Defence Forces with the rank of Sergeant. He is 35 years of age having been born on the 12th of June 1964 and he lives with his wife and two young children at Cappoquin in the County Waterford. He enlisted in the Irish Army in the year 1981 and has been a serving soldier ever since. He gave evidence which I accept that, since he joined the Army, it has been his ambition to rise in the non-commissioned ranks as far as he possibly could; hopefully to the rank of Sergeant Major, and to that end, he attended all courses leading to promotion which were open to him. I was also satisfied by the evidence which I heard during the trial of this action that, outside of his Army service, Patrick Hallissey did not engage in any activity which involved his exposure to excessive noise nor I did not hear any evidence to suggest that he ever suffered from any disease or illness which might have a detrimental effect on his hearing.

2. It was common case that, during his period of service in the Army and, in particular, while serving Overseas in the Lebanon and while a member of various Army shooting teams, Patrick Hallissey was exposed to the noise of gun fire from a variety of weaponry, including mortar fire. However, although, it is accepted by the defence that that noise was excessive, he was never provided with any adequate 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, the Defendants maintain that, in so far 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 should be calculated solely 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 of in all proceedings claiming damages for a hearing injury whereas the Plaintiff maintains that, in the particular circumstances of this case, the application of that formula and, in particular, the fact that the compilers of the green book chose for the purposes of the formula a below 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 deciibels did not amount to a hearing disability within the meaning of the green book distorts the reality of 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, the Plaintiff submitted that, because of that distortion it would be manifestly unjust to him were I to determine the extent of his hearing disability based solely on the provisions of the green book. In this connection, the provisions of the Civil Liability (Assessment of Hearing Injury) Act 1998 have been considered by a number of my colleagues; in particular, by Mr Justice Vivian Lavan in Green's case (judgment delivered on the 3rd of June 1998) and by Mr Justice Richard Johnson in Hanley's case (judgment delivered on the 21st of 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 of time and should be followed by the Courts, unless there are good reasons for not so doing. This is a view to which I also subscribe and, accordingly, the question that I have to decide is whether or not in the particular circumstances of this case, there are good reasons for departing from the provisions of the green book.

3. Patrick Hallissey gave evidence that, notwithstanding his exposure to excessive noise from gun fire without adequate protection for his hearing since he joined the Army in 1981, he was not aware that he had suffered any injury to his hearing until the year 1996 when he was subjected to a hearing test as a pre requisite to undergoing a course for the purpose of qualifying as a non-commissioned officer. Following that test, he was advised that his hearing was damaged to the extent that it was deemed appropriate to reduce his medical rating in the Army from A.1 to grade H.5 which, apparently, is the lowest rating at which personnel can be kept in the Army. Moreover, while he was permitted to complete the course which might lead to his promotion, he was restricted from engaging in certain technical aspects of the course which I understood to mean that he was not allowed to participate in any aspect of the course which involved his exposure to the noise of heavy weaponry. Nevertheless, he passed the course and was promoted to the rank of Corporal in the year 1998. Moreover, following his annual medical examination in the year 1997, his Army medical rating was upgraded to H.4., which is his current rating, and which he tells me precludes him from engaging in any activities involving heavy weaponry and, in particular, prevents him from becoming a Gunnery Instructor. The result, is that he is no longer eligible for membership of Army shooting teams and, as he is a proven marksman and thoroughly enjoyed his participation in shooting activities, he greatly misses this involvement and, in particular, very much regrets the fact that he can never become a Gunnery Instructor. Indeed, following his promotion to the rank of Corporal,. the Plaintiff gave evidence, which I accept, that he was advised by his superiors that, if there was to be any prospect that he might be promoted to the rank of Sergeant, he should transfer to administrative duties. He adopted that advice and is currently engaged as an administrative orderly which he tells me and I accept does not involve activities usually associated with those of a soldier. In fact, although he is still required to participate in an annual range practice once a year, that is the only activity of what might be described as a military nature in which he is allowed to participate. In this regard, the Plaintiff gave evidence, which I also accept that he greatly misses being involved in shooting activities and, in particular, being a member of Army shooting teams with the camaraderie of his colleagues on those teams. He is not particularly enamoured of his current duties as an administrator because he maintains that it is not the soldiering for which he joined the Army but he said, and I accept, that, had he not transferred to administrative duties, his future in the Army was debatable and, therefore, he had no option but to transfer to those duties. Nevertheless, since transferring to administrative duties, the Plaintiff has been promoted to the rank of Sergeant but, if he has, he maintains that he has now reached the zenith of possible promotion and that the rank of Sergeant Major, to which he aspired and was confident of achieving, is no longer open to him because of the damage to his hearing. Against that, I heard evidence from Captain Colm Moran, one of the Plaintiff's superior officers, who said that it is a fact of military life in the Irish Army that the further that one progresses, the more likely it is that one ends up carrying out administrative duties and, accordingly, while it may well be that the Plaintiff has transferred to administrative duties much earlier than might have been the case had he not suffered an injury to his hearing, the probabilities are that, sooner or later, he would have ended up carrying out administrative duties. Moreover, Captain Moran was adamant that the Plaintiff's prospects for promotion had not been affected by the injury to his hearing and that, provided he completed the requisite courses, he would be eligible for further promotion. In this regard, Captain Moran said that a Gunnery course was not a necessary prerequisite for promotion to the rank of Company Quarter Master Sergeant. In the light of that evidence, while I sympathise with the Plaintiff's fears in that regard, I am not persuaded that he is precluded from further promotion.

4. Patrick Hallissey also gave evidence that, from the time that he enlisted in the Army in 1981, he experienced a buzzing in his ears after exposure to the noise of weaponry but that it only lasted for an hour or two and then went away and that it did not really bother him. However in the month of January 1998, the buzzing in his earns became a constant companion and, when he complained about it, he was referred to Dr. John O'Flynn, a General Practitioner, who the Army use as a medical adviser He said that, initially Dr.O' Flynn suggested that, if he were to blow his nose, the buzzing might abate and, although he tried this, it did not solve the problem. Dr. O'Flynn then, alternatively, prescribed ear drops and tablets but all to no avail, and since then, the Plaintiff says that he has experienced a constant buzzing in his ears which is present day and night and is much more intrusive when he is in a quiet environment. In particular, it affects his sleep pattern and he finds it very distracting when in company. Moreover, he gave evidence that, as a result of the constant buzzing in his ears, his mood has changed, he gets depressed from time to time and is, as he said "snappy with his children". Dr. O'Flynn gave corroborative evidence of the complaints which the Plaintiff had made to him and of the treatment which he had prescribed. He said that, accepting the genuiness of the Plaintiff's complaint, he (Dr. O'Flynn) did not know of any treatment which would cure the buzzing and that, with the passage of time, it would probably get worse. While I was somewhat surprised by the Plaintiff's evidence with regard to the suddenness of the onset of the constant buzzing in his ears, in that, it was rather different from the experience of other soldiers, who have given evidence before me with regard to tinnitus resulting from exposure to the noise of weaponry and, in particular by the fact that the constant buzzing only commenced over 12 months after the Plaintiff's exposure to the noise of weaponry had been restricted by the Army authorities and I was also surprised that, when Mr Hallissey saw Mr Patrick A O'Meara, an E.N. T. Surgeon, who gave evidence on his behalf early in the year 1997, he did not then tell Mr O'Meara that he had experienced a buzzing in his ears following exposure to the noise of gun fire although, apparently, Mr O'Meara had questioned him in such a way as to invite such a complaint, nevertheless, I considered the Plaintiff to be a genuine and credible witness with regard to his complaint of tinnitus and that it has and continues to affect him in the manner which he described. In this regard, I was very much influenced by the fact that the results of four audiogram tests to which the Plaintiff was subjected and to which I will be referring in greater detail in the course of this judgment are very consistent; indicating that the Plaintiff had fully co-operated with the persons who carried out those tests and had given honest responses to all queries raised in the course of them. In those circumstances, it seems to me that if, as I believe that he was, the Plaintiff was honest in his response to the audiogram tests, then it is extremely unlikely that he would have given dishonest evidence with regard to the tinnitus which he was experiencing and I do not believe that he did. Accordingly, notwithstanding the provision in the green book that a person seeking compensation for tinnitus should have documented evidence of attending a primary care Physician for advice and management with regard to the tinnitus prior to any claim being lodged by him, I am persuaded by the evidence of Dr. O'Flynn and of Mr O'Meara that the tinnitus of which the Plaintiff complains is attributable to his exposure, to excessive noise of weaponry without protection for his hearing and I am satisfied that he is entitled to compensation in respect thereof notwithstanding the absence of such documented evidence for the reason that I accept Mr Hallissey's evidence that he did not consider it necessary to consult a Doctor with regard to tinnitus until it became a constant problem and that, of course, did not happen until after the proceedings herein were instituted. In this regard, in the light of the evidence which I heard, it seems to me that the tinnitus of which the Plaintiff complains should properly be classified as moderate within that meaning in the green book.

5. In so far as his loss of hearing is concerned, the Plaintiff gave evidence that, when he is in a crowded environment, he cannot hear what people are saying to him unless he is looking directly at them. He agreed under cross-examination that he had not realised that he had a hearing problem until after he had been subjected to a hearing test in 1996 but that when, following that test, he was told that his hearing was damaged, his attention was directed to the practical implications of the problem and he became conscious, as I have indicated, of the fact that he did not hear in a crowded environment unless he was facing the person speaking to him. He also noticed that his children began to complain and still complain that he plays the television too loud and that, very often, he cannot hear the telephone ringing and, when he does answer the phone he cannot hear on it with his left ear. He is also conscious of the fact that, when he is seated in the back of a car, he cannot hear people speaking to him from the front and that, generally speaking, he has a problem hearing when there is a background of noise. He said that this is all very frustrating and I can well believe that that is so. Moreover, the Plaintiff said that his hearing has got worse since 1996. He expressed fears that the damage to his hearing would inhibit his prospects for obtaining employment if and when he retired from the Army and in that regard, both Mr O'Meara and Mr Dermot Dougan, an Audiologist, who gave evidence on behalf of the Plaintiff, confirmed that it was their view that the Plaintiff's hearing problems would inhibit his prospects for employment in civilian life.

6. As I have already indicated, I had evidence of the results of four audiogram tests to which the Plaintiff was subjected respectively dated the 11th of December, 1997, the 30th of March 1998, the 6th of January 1999 and the 1st of May 1999. Three of those tests; those dated the 11th of December 1997, the 6th of January 1999 and the 1st of May 1999 were conducted by Mr Dougan and that on the 30th of March 1998 was conducted by a daughter of Mr Vivion Kelly, an E.N.T. Surgeon, who gave evidence on behalf of the defence whose daughter is, apparently, an Audiologist. I also had evidence of the result of an audiogram test to which the Plaintiff was subjected by Mr O'Meara in February of 1997 but, as I was advised by Counsel for the parties that neither party was placing any reliance on the result of that test, I have not taken it into account in the course of my deliberations. In so far as the results of the other four audiogram tests are concerned, both Mr Dougan and Mr Kelly agreed that all four of them were clinically consistent and that they indicated that the Plaintiff is suffering from a high frequency loss of hearing which, given his history, is probably attributable to his exposure to the noise of gun fire without any adequate protection for his hearing. In this regard, both Mr O'Meara and Mr Dougan gave evidence, which was not challenged, that, having regard to the Plaintiff's relative youth, his loss of hearing is very severe; particularly the loss of hearing in his left ear and that it would get progressively worse as he grew older. In addition they pointed to the fact that, apart from demonstrating that the Plaintiff is suffering a loss of hearing at the high frequency range, the results of those tests also indicated that he had a loss of hearing in his speech frequency range. Mr Dougan gave evidence which, again, was not challenged that, applying the formula in the green book to the results of those four audiogram tests for the purpose of determining the current level of the Plaintiff's percentage hearing disability, the results would vary between a 3.75% disability and a 6.25% disability but that it was significant that the results to two of those tests; those conducted on the 11th of December 1997 and the 1st of January 1999 were exactly the same and indicated a current percentage hearing disability of 5.94%. In that regard, it was suggested to Mr Dougan under cross-examination 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 true level of that person's hearing was; the implication being that the result of the test which indicated that the level of the Plaintiff's hearing disability was 3.75%, which, incidentally, was the test conducted by Mr Kelly's daughter on the 30th of March 1998 be used as the basis for determining the amount of compensation to which he was entitled. However, Mr Dougan did not agree and expressed the view that, because the results of the two audiogram tests respectively carried out on the 11th of December 1997 and the 1st of January 1999 were exactly the same, it was more appropriate that the results of those tests be used as the basis for determining the amount of compensation to which the Plaintiff is entitled. Mr Kelly expressed no view on this topic and, accordingly, I am persuaded to accept Mr Dougan's views in that regard. However Mr Dougan went on to say that the effect of the low fence threshold of 20 decibels at which a hearing disability is deemed to commence fixed by the compilers of the green book distorts the implications of the high frequency loss demonstrated by the results of the four audiogram tests to which the Plaintiff was subjected, in that, as the results of those tests indicate that the Plaintiff has good hearing at the low frequency range, the implications of the high frequency loss is reduced when the formula in the green book for determining his hearing disability is applied even though the reality is that the high tone loss of hearing is exactly the same. In other words, because the 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 the Plaintiff's hearing disability suggests that his loss of hearing in the high frequency range is considerably less than it actually is. It follows, in Mr Dougan's opinion, that the application of the provisions of the green book to the results of the four audiogram tests to which the Plaintiff was subjected does not reflect the actuality of the extent of the Plaintiff's high tone hearing loss and, accordingly, was not fair to him. In that regard, Mr Dougan pointed to the fact that, applying the formula in the green book to the results of the audiogram tests to which the Plaintiff was subjected on the 11th of December 1997 and the 6th of January 1999 for the purpose of determining the current level of his hearing disability, the result would be 5.94% whereas, if there was no low fence threshold at which disability commences provided for in the green book, that disability would be 15.63%. In this connection, Mr Dougan agreed that, apart from the provisions with regard to the low fence threshold, there are other anomalies in the green book which, when applying the formula for determining a hearing disability, could distort the extent of that disability; in particular, the inclusion in the formula of the 4000 HZ range rather than the 3000 HZ range. However, he would not agree that that was a good reason for ignoring the low fence threshold; particularly, when as in this case, the distortion resulting from the low fence threshold was so obvious and had such serious implications for the amount of compensation to which the Plaintiff is entitled. For his part, Mr Kelly did not agree that the provision in the green book of a low fence threshold at which a hearing disability is deemed to commence distorts the implications of the high frequency hearing loss demonstrated by the audiogram tests to which the Plaintiff was subjected. He agreed that the formula in the green book for determining a hearing disability was arbitrary but, nevertheless, considered that it was fair although he did concede that it could produce very serious anomalies in some cases and he gave as an example that it could happen that the application of that formula to a person who had a hearing impairment and who specialised in tuning pianos could produce results indicating that that person had no hearing disability whereas the fact of the matter was that, as a result of the hearing impairment, he or she could no longer tune pianos. As I interpreted his evidence, Mr Kelly accept that, in that situation, it would be unfair to apply the provisions of the green book for determining the level of that person's hearing disability and, if so, I cannot understand his reasoning when he says that the provisions in the green book with regard to the low fence threshold at which a hearing disability is deemed to commence does not significantly distort the extent of this Plaintiff's high frequency loss of hearing when Mr Dougan has demonstrated the extent of that distortion and he (Mr Kelly) did not challenge Mr Dougan's evidence in that regard. Accordingly, I am persuaded by Mr Dougan's evidence that, in the case of this Plaintiff, the low fence threshold for a 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 his hearing disability the end result suggests that that disability is significantly less than what it actually is. Consequently, I think 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. Accordingly, I think that, if I am to do justice to this Plaintiff, I must conclude that this is a case in which there are good reasons for departing from the formula in the green book and that an exception should be made to the general principle that that formula is a fair and adequate one for measuring a hearing disability because, as I have indicated, were I not to do so, the level of the Plaintiff's damages would be considerably less than would be appropriate for the true extent of his hearing disability. In any event, I am persuaded by the evidence of the Plaintiff that the fact that, as a result of his hearing disability, he is no longer able to engage in activities usually associated with those of a soldier but, rather, is restricted to performing administrative duties which detrimentally affect 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 Bastic v The Minister for Defence, that that is a matter which I am also entitled to take into account in assessing the amount of the Plaintiff's damages and I propose to do so.

7. In the light of 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 15.63%. That being so, following the approach of Mr Justice Johnson in Hanley's case with regard to the measurement of compensation per degree of established disability which seems to me to be a fair and reasonable one and, in any event, was an approach which neither of the parties in this case took exception to, and allowing that the Plaintiff is now 35 years of age, and that his current hearing is 15.63%, and allowing that, in accordance with the schedule to Hanley's case, 10% of that disability falls to be compensated at a rate of £2,750 per 1% i.e. £27,500 and 5.63% falls to be compensated at a rate of £5,500 per 1% i.e. £30,965, I will allow a sum of £58,465 in respect of the Plaintiff's current hearing disability. In addition, Mr Dougan gave 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 aged 62, calculated in accordance with the formula in International Standard 199 is of the order of an additional 1%/2%. In that regard, I am satisfied that, having excluded that threshold when 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 that, at age 62, that combination will amount to an additional 2% disability in respect of which the Plaintiff is entitled to be compensated at a rate of £3100 per 1% which I calculate to be £6,200. However, I heard evidence from Mr John Logan, an Actuary, that, allowing that the Plaintiff will suffer a linear deterioration in his hearing from the present time until he attains the age of 62, the capital value of the loss of £1 for him at age 62 is £.6484 and, that being so, and , as I am persuaded by the evidence of Mr O'Meara and Mr Dougan that the Plaintiff will suffer a linear deterioration in his hearing from the present time until he attains the age of 62 years, I will allow a sum of £4,020 in respect of the combination of his current hearing disability and his age related hearing loss at age 62 i.e. .6484 of £6,200.

8. In addition to the foregoing, I heard evidence from Mr OMeara, with which no one took issue, that a hearing aid in his left ear would be of considerable benefit to the Plaintiff and Mr Dougan gave evidence which, again, was not challenged that, when he attains the age of 50 years or so, a hearing aid in his right ear would also be of benefit to him. That being so, I am satisfied that he is entitled to be allowed the cost of providing himself with such aids. In this regard, Mr Dougan gave evidence that the current costs of a hearing aid is £1500 and that it would require to be renewed every five years. He also said that the current annual cost of maintaining a hearing aid is approximately £200. These figures were not challenged. Moreover Mr Logan gave evidence that, for this Plaintiff, the capital value of a current expenditure of £1500 renewable every five years for the rest of his life is a sum of £7,487 and the capital value for him of an annual expenditure of £200 for the rest of his life is a sum of £3,367. Furthermore, Mr Logan gave evidence that the combined capital value for this Plaintiff of an expenditure of £1500 at age 50 renewable every five years and of an annual expenditure of £200 from age 50 for the rest of his life is a sum £5,183. I am satisfied that those are the amounts which are necessary to enable the Plaintiff to provide himself with appropriate hearing aids for the rest of life and, accordingly, I will allow them. I calculate that they amount to a sum of £16,037.

9. I have considered whether or not in the light of the fears in that behalf expressed by the Plaintiff, and, in the light of the evidence of Mr O'Meara and of Mr Dougan, whether or not I should allow the Plaintiff anything in respect of the possibility that, as a result of his loss of hearing, he will experience difficulty in obtaining employment in civilian life when he retires from the Army. However, it seems to me that this prospective loss is very speculative; particularly, as, by then the Plaintiff will have the benefit of hearing aids and, therefore, I think it less likely that any perspective employer will be unwilling to employ him because of his hearing problems. Accordingly, I am not persuaded that a claim in respect of future loss of earnings has been established.

10. In the light of the foregoing and allowing that the Plaintiff is suffering from moderate tinnitus which, by virtue of the provisions of the green book, represents a disability of 2% which, following the decision of Mr Justice Johnson in Hanley's case falls to be compensated at a rate of £2,750 per 1% i.e. a total of £5,500, I will assess damages in this case in the total sum of £84,022.