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Kinlan v. Minister for Defence [2000] IEHC 167 (29th February, 2000)

THE HIGH COURT

1997 No 7969p

BETWEEN

SÉAMUS KINLAN

PLAINTIFF

AND

THE MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

JUDGMENT of Mr. Justice Aindrias Ó Caoimh delivered on the 24th day of February, 2000

1. The Plaintiff, who was born on the 10th May, 1953, is a former member of the Defence Forces and currently resides at Roundwood in the County of Wicklow and formerly resided at 9 Beechlawn, Portlaoise, County Laois. The Plaintiff’s, claim is for damages arising out of noise induced hearing loss sustained by him in the course of his service as a member of the Defence Forces. The Plaintiff is employed as a prison officer and complains that his hearing loss has been the source of some embarrassment to him insofar as on one occasion when a judge gave instructions in a Courtroom he failed to hear them correctly.

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2. The case made before this Court was that the Plaintiff will require hearing aids and much time in these proceedings was taken up in consideration of the issue of the necessity for hearing aids to be supplied to the Plaintiff for the future.

3. Three audiograms were proved in evidence before me. They were firstly that of the 14th April, 1997, secondly, that of the 13th March, 1998 and thirdly, that of the 14th December, 1999. With regard to the audiograms, these showed, in the case of the earliest, a nil percentage loss to date with a projection of 6.09% at age sixty-two; in the case of the second audiogram, a current loss of O.63% with a projection of a loss of 4.3% to age sixty two and in the case of the latest audiogram, that is of the 14th December 1999, the current loss is shown to be at 0.31% with a loss at sixty two at 7.51%.

4. The Plaintiff joined the prison service on the 21st October, 1978 and has served in the prison service at Limerick, Shelton Abbey, Portlaoise Prison and in more recent times at Shanganagh Castle.

5. He believes that he has a hearing problem and he has stated in evidence that he cannot hear some words that are spoken. He said that he had difficulty in hearing in places such as public houses where he cannot hear conversations due to the existence of background noise. He said that he cannot tolerate loud music and

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indicated that on occasions the television in the prison is too loud and he finds this to be distracting.

6. With regard to his experience in Court, the Plaintiff said that in 1995 a judge gave him a direction, which as understood by him turned out to be wrong. Initially he thought his difficulties related to the presence of wax in his ears and had wax removed. He said that that gave rise to marginal improvements in his hearing. He had attended his general practitioner Dr. Lynch, who removed the wax. He indicates that in a one-to-one situation he doesn’t have much problem with his hearing but, where there is lot of background noise, this inhibits his hearing. He says that he is in court on average once or twice per week and travels to all courts throughout the country. Having once got instructions wrong he now always makes sure and if necessary relies on a colleague to confirm instructions given in court.

7. While the Plaintiff used to like socialising he no longer socialises in group-situations and prefers now to be. in a quieter place. He said he could not recall who had advised the use of a hearing aid and it is clear that the Plaintiff has not sought to wear a hearing aid to date.

8. Evidence was given for the Plaintiff by Mr. George Fennell, an audiologist, who gave evidence in relation to Ms. Nugent’s audiograms of the 14th December, 1999 and the 14th April, 1997. He indicated that these showed some hearing loss

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especially On the left-hand side. He indicated that the loss of hearing extended over the speech range with 20 decibels on the right hand side and 25 on the left-hand side. He said that the audiograms taken show much the same thing with a slight loss at 3,000, 4,000 and 6,000 hertz in both ears, but particularly in the left ear. This witness indicated that he does not prescribe hearing aids but he said that he would advise a hearing aid in this case. He said that the Plaintiff would have no difficulty with a modern hearing aid. He recommended that the Plaintiff should test hearing aids and should get one. He would not recommend a hearing aid in case of treatable deafness, but he would recommend the Plaintiff to try a hearing aid. He said that some people might object to wearing a hearing aid on the basis that they would be seen but they are now reaching a point where they are becoming almost invisible.

9. Mr. Fennell described the features of modern digital hearing aids where the higher frequencies can be emphasised. He indicated that there has been a quantum leap in the quality of hearing aids in the last five years.

10. Ms. Judy Nugent, a qualified audiologist with 33 years experience, gave evidence on behalf of the Plaintiff. She is a member of the British Society of Audiologists and a member of the Hearing Aid Society of Audiology in Ireland. She worked for 33 years in the Eye and Ear Hospital and now has her own clinic in the Charlemont Clinic in Dublin for the past three years. She says she

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has seen approximately 3,000 members of the Defence Forces in her practice in recent years. She indicated that her findings from the audiograms were of a bilateral sensorineural loss, which is worse in the left ear. She said that this had a noise induced appearance on the audiogram. She said that this was typically noise induced hearing loss with a notch appearing at the 4 to 6 kilohertz area on the audiogram. She indicated that the complaints made by the Plaintiff to her included difficulty appearing at social situations, that is in group situations, and having to turn up the radio and television on occasions. She said that when she saw the Plaintiff on the 14th April, 1997 she asked him to try a hearing aid but this was not a digital hearing aid. The hearing aid assisted his hearing on the occasion. She said it was not for her to prescribe hearing aids. Some persons might find the price of digital hearing aids to be prohibitive. She said that digital hearing aids gave improved clarity. She also said it would be fair to give the Plaintiff the possibility of trying a hearing aid and that when she saw the Plaintiff he would have tested the hearing aid for approximately five minutes. She said that of the 3,000 members of the Defence Forces that she had seen, approximately 1,000 would have tried the hearing aid in her clinic. She said that she would give the option to persons in the position of the Plaintiff of trying a hearing aid and, if they were not happy to wear a hearing aid, she would be prepared to refund the cost of the hearing aid. She said that if a person were

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determined enough to try a hearing aid that she would supply it. She indicated that anyone with substantial hearing loss would benefit from a hearing aid. She indicated that motivation and lifestyle are key factors in regard to a person wearing hearing aids. She conceded that the Plaintiff had not demonstrated any motivation to wearing a hearing aid to date.

11. Further evidence was given on behalf of the Plaintiff by Mr. Dermot Dougan. He is an audiologist and has a B.Sc. Degree from the National University of Ireland in General Sciences and obtained a Fellowship in Optics and studied under the Society of Audiologists having obtained a M.Sc. in audiology in the University of London. He has practiced in audiology since 1987 and he has five optical practices. He has experience in instrument hearing-aid fitting. He has had considerable experience in assessment of hearing. He restructured his practice in 1997, which involved an upgrade of his premises to assist in carrying out assessments of hearing loss. With regard to hearing loss cases involving the Defence Forces since 1997 and 1998, he tests on average forty to fifty Plaintiffs per week. In the Summer time this may be increased by 25%. He has seen thousands of individual cases. He said that the audiograms in this particular case were consistent and showed a similar pattern. He said that there was minimal loss in the right ear at high frequencies. He stated that there was a peak at 4,000 hertz in each ear. He stated that having examined the audiograms, he

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would expect some difficulty in speech discrimination at lower decibels with background noise. He stated that the Plaintiff’s hearing loss was at the lower end of the recommended fitting scale by manufactures of the Aries Signal Processor hearing aid. He stated that the Plaintiff has a hearing loss at 3,000 hertz. He stated that in the past people had difficulty with hearing aids because they could not tolerate background noise being amplified. Mr. Dougan indicated that modern digital hearing aids give more accurate processing than analogue devices. The digital hearing aid gives better clarity; it is more selective in its amplification and more selective in depression of levels, which are not needed. He stated that many modern hearing aids are prohibitively expensive and have had varying results. The result of improvements in the development of hearing aids has been to reduce the side effects to the point where they become acceptable or tolerable. There has been an improvement in the processing of sounds and elimination of circuit sounds in hearing aids. He stated that there may be stigmas to wearing hearing aids in that people do not like to be seen with a hearing aid. He accepted that digital hearing aids are more costly than analogue devices. Modern digital hearing aids are such that 90% of each is fitted into the ear and therefore is not readily visible. Market tracking surveys have found that factors in rejection of hearing aids include a stigma associated with them and also the effectiveness of sound processing. He indicated that a

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problem has to overtake the persons concerned before they will usually volunteer to wearing a hearing aid. If they are not motivated nothing will happen.

12. He said that he is in the process of fitting fifteen persons with digital hearing aids. Three of those being fitted to persons who have not noise induced hearing loss. All the persons fitted have complained of background noise.

13. With regard to the life of hearing aids he thought that five years was a reasonable average life span of an analogue device and he estimated that the same could be said of a digital device. He said that some might last for six years on the other hand. Depending on the wear-and-tear some may only last one year. He said that usually one is in trouble after six years. For this reason he estimated that a five-year life span was a fair estimate.

14. With regard to the cost of digital hearing devices, he thought that £1,500 was a general estimate of the cost; while there may be improvements in hearing aids, the prices are unlikely to drop because the cost of improvement would probably ensure that the prices will maintain their current level of £1,500.

15. Mr. Dougan gave evidence in relation to the problems associated with analogue devices and contrasted those problems with the benefits of modern digital devices. Analogue devices cover a broader band and they are less specific, that is to say they amplify a broader band of frequencies and this causes frequent

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discomfort. With regard to the manufacturer’s recommended fitting range the recommendation is that you don’t want over amplification. He indicated that the manufacturers’ recommendations were such as to avoid rejection of hearing aids and to try and minimise the rejection rate. He indicated that motivation and lifestyle were key factors in people wanting to wear hearing aids. He described the current case as one of “marginal fitting”. The Plaintiff’s current hearing loss is such that it is possible that he may reject wearing hearing aids. Mr. Dougan stated that 3,000 hertz was a central frequency for hearing and speech. He stated that all frequencies are important. Problems of over amplification were usually at the higher frequencies. The reaction of the wearer of a hearing aid to amplification of sound is of paramount importance. The key is not to emphasise or amplify by too much. One of the causes of rejection is over amplification.

16. Mr. Dougan indicated that a key factor is expert and accurate fitting of hearing aids. The user must also have motivation. Mr. Dougan stated that digital hearing aids compress to a more accurate degree. All is amplified, therefore, to a lesser extent. He indicated that the digital hearing aids represent more advanced technology and that the side effects are somewhat limited. Mr. Dougan further indicated that the reaction of the person being fitted is vital. He stated that the technical aspects are very important and it is important that the desired result is

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achieved at the most affected frequencies. He described this case as one involving marginal fitting and that it depended very much on the motivation of the Plaintiff. He indicated that one cannot look at any one frequency in isolation. While one may seek to obtain a ‘snap-shot’ at 2,000 hertz one cannot ignore the position at 1,000, 3,000 and 4,000 hertz. With regard to the problems of acoustic feedback, Mr. Dougan indicated that there should be no feedback if a hearing aid is properly fitted. While Mr. Dougan described this as a case of marginal fitting for the Plaintiff, he elaborated upon this to say that the Plaintiff would be off the recommended scale for hearing loss for a hearing aid at 2,000 hertz but would be within the scale at 1,000, 3,000 and 4,000 hertz.

17. Mr. Dougan indicated that the Plaintiff’s hearing will deteriorate and that at the age of sixty he would be quite a deal worse off and that it is more than likely that it will happen sooner.

18. On behalf of the Defendants, evidence was given by Ms. Teresa Pitt who is an Audiologist having a Master’s Degree in Audiology and ten years clinical experience in audiology with particular experience over that period in the fitting of hearing aids. She indicated that the Plaintiff should have no difficulty understanding the speech in quiet situations and, furthermore, no practical difficulties in isolated situations. With regard to the manufacturers’ specifications, Ms. Pitt indicated that normally hearing must be impaired at 2,000 kilohertz before a hearing aid is

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recommended. She indicated that looking at the audiologist report from Ms. Nugent that there was little lost in speech context. This indicated that 10% of words were missed while one would expect a greater loss before a hearing aid was recommended. Ms. Pitt indicated that hearing aids may affect the resonance of the ear in low frequencies and have an earplug effect and in this regard may change peoples perception of speech; as a general rule the criteria for fitting of a hearing aid would be 25 decimals at 2 Kilohertz.

19. Ms. Pitt indicated that the Plaintiff did not have enough of a problem to warrant the fitting of a hearing aid. She indicated that in her experience she has never fitted cases such as that of the Plaintiff successfully. She indicated further that there is a considerable level of rejection and this depends on the level of the hearing loss. Ms. Pitt indicated that the motivation must be there. A proportion of those fitted with hearing aids do- not use them. Ms. Pitt indicated that no one would come to her with this hearing loss for hearing aids. She indicated that patients do not tend to wear hearing aids unless they gain in all situations. She indicated that unless some benefit is derived in quiet situations from a hearing aid that a patient would not buy a hearing aid. She further indicated that digital hearing aids can be more finely tuned than analogue devices but even in the case of digital hearing aids these will not restore perfect hearing to the wearer.

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20. Ms. Pitt indicated that the assistance to the Plaintiff in a noisy situation would be marginal and that he will not feel any better off. Ms. Pitt indicated that the Plaintiff’s hearing was better than the minimum level recommended by the manufacturers for the wearing of a hearing aid.

21. Ms. Pitt indicated that the most important thing is personal motivation in all situations. In this regard her evidence does not differ from the Plaintiff’s evidence. In essence her evidence can be summarised as saying that the Plaintiff does not suffer from a sufficient disability to warrant a hearing aid being fitted including the cost factor involved. While it was put to Ms. Pitt that Ms. Nugent was an experience clinician, her response was that Ms. Nugent’s experience is lesser in the fitting of hearing aids than that of Ms. Pitt. She stressed again that motivation was a critical factor and indicated that if there were not sufficient deterioration she would not fit a hearing aid.

22. Mr. Nigel Tennant, a qualified actuary, gave evidence on behalf of the Plaintiff. He assessed the cost of hearing aids based upon the fact that they cost £1,500 and allowing for replacement every five years and assessed the capital value at £7,469 on the basis of a current need for such hearing aids to include the annual cost of maintenance. Mr. Tennant indicated that if the wearing of hearing aids was deferred for five years that the capital cost would be £5,658, while if deferred for ten years, it would be £4,136.

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23. Having considered the evidence of the various audiologists, I favour the evidence of Ms. Pitt and I conclude that the Plaintiff does not require any hearing aid at present and if furnished with them he would not wear them at present. I am satisfied that the Plaintiff has not demonstrated the necessary motivation to warrant being awarded the costs of hearing aids at present. However, I also accept the evidence of Mr. Dougan to the effect that the Plaintiff’s hearing will deteriorate and that at sixty years of age it will be quite a deal worse off and that more than likely it will happen sooner. Based upon this evidence, I am prepared to accept as a matter of probability that the Plaintiff will require hearing aids in ten years time and, accordingly, I find that the appropriate capital figure that must be allowed for this is a figure of £4,136.

24. With regard to the Plaintiff’s claim for damages for the hearing loss itself, the Court has had the benefit of three audiograms which differ somewhat in the results given. In the circumstances of this case, I have taken the approach of aggregating the results of the three audiograms and dividing them by three to give a mean and, upon this result, I now assess the damages due to the Plaintiff.

25. The three figures given for the current loss, 0%, 0.31%and 0.63% average out at 0.3 1% and when applied to the figure of £1,100 appearing in the table applied by the Supreme Court in the

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recent Hanley case, the plaintiff being 46 years of age, gives a figure of £341.

26. In respect of the projected hearing loss at age 62, I have taken the average of the figures of 6.09%, 4.32% and 7.51% to give a figure of 17.92 which, when divided by three, gives a resultant figure of 5.97% from which must be deducted the figure of 0.3 1% to give a percentage loss for the future of 5.66%. I award the Plaintiff £750 for each 1% loss into the future and this gives a figure of £4,250. This figure must be subjected to an actuarial adjustment as it pertains to a situation that will not be realised immediately and I accept the evidence of Mr. Tennant that it is appropriate to apply a figure of 0.7661 based upon a lineal progression of hearing loss into the future. This I take to be the appropriate percentage by which the figure of £4,250 must be multiplied. This gives a figure of £3,252. This gives a total sum of £7,729 damages to which the Plaintiff is entitled. In light of my finding that the plaintiff is entitled to this sum and the fact that these proceedings were commenced in the High Court, I will hear counsel in relation to the appropriate order to make in regard to costs.