High Court of Ireland Decisions

1. The Plaintiff in this case is a 42 year old unmarried man, who lives with his mother at Garryfine, Bruree in the County Limerick. He is currently unemployed and occupies his time looking after his mother who is an elderly lady. He enlisted in the Irish Army in the year 1975 and was a serving soldier for three years. He left the Army in the year 1978, since when he has engaged in a variety of occupations; none of which he maintains involved his exposure to excessive noise. Moreover, it was not suggested that he suffered from any disease or illness which might have had a detrimental affect on his hearing.

2. It is common case that, during his period of service in the Army, Neilus Simcox was exposed to the noise of gunfire from a variety of weaponry, including heavy artillery, and, although I was satisfied by the evidence which I heard in the course of the hearing that that noise was excessive, he was never provided with any protection for his hearing. As a result of that exposure, Mr. Simcox 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, while it was conceded by Mr. Maurice O'Connor F.R.C.S., the Consultant E.N.T. Surgeon, who examined the Plaintiff on behalf of the Defence and who gave evidence before me that he was, indeed, suffering from a high tone hearing loss and that it may be that the noise of the weaponry to which he was exposed during his term of service in the Army had some little impact on that loss, the Defendants maintained that, whatever loss of hearing the Plaintiff was suffering from, it was neither caused nor contributed to by his exposure to the noise of weaponry during his period of service in the Army to the extent that he is entitled to compensation in respect thereof. Moreover, the Defendants maintained that the tinnitus of which the Plaintiff complained was not legally susceptible to compensation.

3. Mr. Simcox gave evidence before me that, during his training as a recruit in the Army, which, apparently, lasted six months, he was required to attend the firing range on two occasions in each month during which he was exposed to the noise of gunfire from rifles and machine guns; both while firing the weapons himself and while standing in close proximity to others who were similarly engaged. Moreover, during the balance of his period of service, he was required to attend the firing range on an annual basis during which he was similarly exposed to the noise of small arms fire and, on three occasions during his period of service, he was required to attend the Glen of Immal for a two week period where, on each of ten days during that period, he was exposed to the noise of heavy artillery including 25 lb. guns, mortars and howitzers. He gave evidence that, on those occasions, he would have been standing within two to three feet of the guns. Mr. Simcox gave evidence that, initially, following an exposure to the noise of gunfire, he would experience a ringing in his ears which lasted for about 30 seconds after the gunfire had ceased. However, he said that he was not conscious of any problems with his hearing, as such. He said that, after his discharge from the Army, he noticed that, when he attended hurling matches, he would experience a ringing in his ears from the noise of the crowd; a ringing which, again, only lasted about 30 seconds after his exposure to such noise. He said that, in the late 1980s, he noticed that his mother regularly complained that he played the television too loud and that she would turn it down whereupon he went off to a local bar; as I understood it, to watch television there. However, he said that, at that stage, that was the only problem with his hearing that he was aware of at home; probably, because they had no door bell and the telephone was located in his mother's room so that he was not concerned with answering doors or answering the telephone. However, he did say that, sometime later, he had a problem conversing with his mother on a one-to-one basis although he did not have that experience when talking to other people. To be quite frank, in the absence of any evidence that there was anything unusual about the Plaintiff's mother's speech or diction, I found it difficult to understand why the Plaintiff would have a difficulty conversing with her; particularly, as two audiogram tests to which the Plaintiff was subjected, to which I will be referring in greater detail later on in this judgment, did not indicate that the Plaintiff had any significant hearing loss in the speech range and both Mr. Dermot Doogan, an Audiologist, who gave evidence on behalf of the Plaintiff, and Mr. Maurice O'Connor expressed surprise that he would have a hearing difficulty when conversing with his mother. That as it may be, however, Mr. Simcox also gave evidence that, when the local public house that he was accustomed to frequent introduced music, he found that the background of music interfered with his capacity to hear conversation and that he also had problems understanding people in public areas; for example, when attending hurling and football matches. He said that he also experienced a ringing in his ears after exposure to the sound of music which, again, would last for some 30 seconds after such exposure and that, on five or six occasions on each night during the week, he experienced ringing in his ears which, again, lasted for about 30 seconds on each occasion although he did not complain that his sleep pattern was disrupted.

4. Despite the problems which he experienced with regard to his hearing and with the ringing in his ears which he described in evidence, Mr. Simcox said he thought nothing of them and, in particular, did not consult a doctor until, sometime in the year 1994, he received a letter from a friend of his; a Mr. Christy Tydings, who, apparently, had served with him in the Army asking whether or not he was experiencing ringing in his ears and advising him that, if he was, he should consult a firm of solicitors, being the firm of solicitors who are now representing the Plaintiff in these proceedings. The Plaintiff did so and, in turn, was referred by them to Dr. Stephen Flynn who, having conducted an audiogram on the Plaintiff, advised him that he had a hearing problem which, in Dr. Flynn's view, was related to exposure to the noise of gunfire during his period of Army service. Following that, the proceedings herein were instituted.

5. Under cross-examination, the Plaintiff conceded that, while he was in the Army, he made no complaint about ringing in his ears or of any problems with his hearing. He also agreed that, although he was wont to attend discotheques in his youth, he never experienced ringing in his ears on those occasions. In the light of Mr. Simcox's evidence that he experienced ringing in his ears after exposure to the sound of music in his local public house and after his exposure to the noise of crowds at hurling and football matches, I find it rather surprising that he would not also experience ringing in his ears after attending a discotheque because I had evidence from Mr. Doogan that, generally speaking, the noise generated in a discotheque was well over 100 decibels and often as much as 120 decibels which would certainly equate, if it was not considerably in excess of the noise which might be generated by music in a pub or by a crowd at a sporting engagement. Under further cross-examination, Mr. Simcox said he did not realise that he had any problems with his hearing until he saw Dr. Flynn, that because of ringing in his ears following exposure to music, he has now lost interest in music and avoids exposure to it and that he is very concerned that his deafness will get worse as he grows older.

6. Mr. Dermot Doogan gave evidence that the decibel level generated by the noise of the gunfire to which the Plaintiff was exposed during his period of service in the Army ranged from 155 decibels to 178 decibels and that it was recommended that the threshold of noise to which a person could be exposed without protection for his hearing was 110/120 decibels, if damage to hearing was to be avoided. He also said that it is well known that impact damage to hearing due to exposure to the level of noise from gunfire to which the Plaintiff had been exposed during his period of service in the Army can cause permanent damage to hearing. He said that he had had access to the results of two audiogram tests on the Plaintiff; one carried out on the 16th July, 1997 by Mr. O'Connor on behalf of the Defendants and one carried out on the 30th August, 1997 by a Mr. Coakely, an E.N.T. surgeon, on behalf of the Plaintiff. He said that the results of these tests indicated that the Plaintiff was suffering from a bilateral high tone hearing loss which, in his view, having heard the Plaintiff's evidence with regard to his exposure to the noise of gunfire during his period of service in the Army, was attributable to that exposure. Mr. Doogan said that the results of those audiogram tests indicated that the maximum damage to the Plaintiff's hearing was at the range 6000 hz. which is consistent with a hearing loss due to exposure to noise although he subsequently agreed under cross-examination that the classic evidence of noise-induced damage to hearing was the appearance of a notch on an audiogram between 3000 hz. and 6000 hz. with the maximum notch usually at 4000 hz. whereas, in fact, the first notch on the two audiograms to which he referred did not occur until the 6000 hz. range. However, he said that, notwithstanding that fact, as the overall appearances of both audiograms indicated to him that the Plaintiff was suffering from a noise-induced hearing loss, the absence of a notch at the 4000 hz. range did not exclude that conclusion. As he put it "you cannot dissect an audiogram like that" . Mr. Doogan said that, applying the formula in the Green Book, which is the report referred to in the Civil Liability (Assessment of Hearing Injury) Act, 1998 to which the Courts are required to take judicial notice of in all proceedings claiming damages for a hearing injury, the Plaintiff's current hearing disability indicated by the audiogram test of the 16th July, 1997 carried out by Mr. O'Connor was nil and his hearing disability indicated by the audiogram test of the 30th August, 1997 carried out by Mr. Coakely was 0.31%. Moreover, he said that, applying the formula in international standard ISO 199 for determining the combination of the Plaintiff's noise-induced hearing loss and his natural age-induced hearing loss at age 62, the gross loss indicated by Mr. Coakely's audiogram was 11.31% and that indicated by Mr. O'Connor's audiogram was 12.6%. In this regard, I am satisfied that the formula in international standard ISO 199 for determining the affect of the combination of noise-induced hearing loss and age-induced hearing loss is a reasonable one and I am satisfied to adopt it, as some of my colleagues have in other claims for damages for loss of hearing.

7. At this stage, I might digress to point out that, in the course of the hearing, it was indicated to me that neither party disputed the results of the audiogram tests carried out by Messrs O'Connor and Coakely and the Defence did not challenge Mr. Doogan's evidence with regard to the results of the application of the formulae in the Green Book and in international standard ISO 199 to the results indicated by those tests. Moreover, Mr. Doogan gave evidence which I accept that, when confronted with the results of two separate audiogram tests, it is preferable to rely on the one which demonstrates the better hearing which, in this case is the audiogram test carried out by Mr. O'Connor although, in fact, Mr. Doogan said that the results of the two tests were very similar and that there was little to chose between them. However, in the light of Mr. Doogan's evidence in that regard, it seems to me that, for the purpose of determining the extent of the Plaintiff's hearing loss, reliance should be placed on the results of Mr. O'Connor's audiogram.

8. As I have already pointed out, while Mr. O'Connor conceded in evidence that the result of the audiogram test which he carried out on the Plaintiff indicated that he was suffering from a high tone hearing loss and that it may be that the noise to which he was exposed during his term of service in the Army had some little impact on that loss, it was, in fact, Mr. O'Connor's opinion that the hearing loss demonstrated by that audiogram test was not noise-induced. Indeed, he said, that it was three to one against the hearing loss demonstrated on that audiogram being noise-induced. Accordingly, it was his opinion that the Plaintiff's Army service did not impact on his hearing loss. In support of that view, Mr. O'Connor pointed to the fact that there was no notch on the Plaintiff's audiogram at the level 4000 hz. which he maintained was the classic audiometric evidence of noise-induced damage to hearing. He also pointed to the fact that the result of the audiogram test carried out by him which, as I have indicated, is the one which I prefer, there was no recovery to the hearing in the Plaintiff's right ear at the level 6000 hz. which is contrary to what one would expect where his loss of hearing is noise-induced and, furthermore, he pointed to the fact that, as there was little difference between the Plaintiff's loss of hearing in either ear, the likelihood that his loss of hearing was attributable to exposure to the noise of gunfire was remote because if it was, one would expect a significant difference between the loss of hearing in either ear depending upon whether or not the Plaintiff was left-handed or right-handed. For all these reasons, it was Mr. O'Connor's view that, whatever the cause of the Plaintiff's loss of hearing, it was not noise-induced and certainly not attributable to exposure to the noise of gunfire during his period of service in the Army.

9. The Plaintiff did not impress me as a reliable historian of the events which he described in evidence. In the light of the results of the audiogram tests to which I have referred and in the absence of any evidence that his mother had any peculiarities with her speech, it does not appear to me to be reasonable that he should experience difficulties hearing her in a one-to-one conversation. Moreover, I find it incredible that, while the Plaintiff complains of ringing in his ears following exposure to the noise of gunfire and to the noise of music in his public house and to the noise of crowds at sporting fixtures, he experienced no such ringing in his ears after attending discotheques. In my view, there is a huge inconsistency there and, in the light of that inconsistency, I doubt that the Plaintiff has experienced any troublesome ringing in his ears. However, even if he has, although he did not complain that it interfered with his sleep, or with his concentration, and it did not affect his lifestyle, I am satisfied that it was a very minor problem and not one which entitles him to compensation.

10. In the light of the evidence of Mr. O'Connor and with all due respect to the views expressed by Mr. Doogan, I am not convinced that the hearing loss demonstrated in the audiogram tests carried out on the Plaintiff is noise-induced or, if it is, that it was induced by any exposure to the noise of gunfire during his Army service. In this regard, apart altogether from the views in that behalf expressed by Mr. O'Connor which, in any event, seemed to me to mitigate against the Plaintiff having established his case on the balance of probability, if it is a fact, as the Plaintiff asserts, that, since he left the Army over 20 years ago, he has experienced ringing in his ears following exposure to the noise of music in his local public house and following exposure to the noise of crowds at sporting fixtures, the conclusion must be that, on each of the occasions on which he experienced such ringing, there was an insult to his hearing so that, even if Mr. O'Connor's view that the Plaintiff's loss of hearing was not noise-induced is not correct, it seems to me that it is more than likely that it was due to the noise precipitated by those insults over such a long period of time.

11. Having regard to the foregoing, I am not satisfied that the Plaintiff has established his case and, accordingly, I am dismissing it.