Judgment Title: Donnelly -v- Commissioner of an Garda Siochana & Ors Composition of Court: Quirke J. Judgment by: Quirke J. Status of Judgment: Approved |
Neutral Citation Number: [2008] IEHC 7 THE HIGH COURT [2002 No. 5340P] Between Thomas Donnelly Plaintiff and The Commissioner of An Garda Síochána, The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General. Defendants Judgment of Mr. Justice Quirke delivered on the 18th day of January 2008 The Plaintiff is a member of An Garda Síochána who has at all times material to these proceedings been employed by the defendants as a dog handler. He is claiming damages from the defendants on the grounds that he has suffered personal injuries, loss and damage as a result of negligence, breach of duty, breach of statutory duty and breach of contract on the part of the defendants. He claims that during the course of his employment with the defendants between 1979 and March, 2002 he was, for lengthy periods of time, exposed to noise levels which were excessive, dangerous to his health and significantly greater than the levels permitted in the workplace by law. He claims that, in consequence, he has suffered significant permanent and irreversible loss of hearing in both ears which has interfered with and restricted his life and lifestyle. He claims damages to compensate him for his injuries and the associated loss which he says he has suffered as a result. RELEVANT FACTS 1. The plaintiff has worked as a dog handler for An Garda Síochána since 1979 and remains so employed. He is now fifty-five years old and is married. He has five children. His duties as a dog handler have required him to accommodate and care for German Shepard dogs at all times material to these proceedings. He participates in the training of the dogs and is entrusted with them when they are approximately fifteen months old. He accommodates them in kennels at his own home and transports them daily between his home and his place of work at Kilmainham Garda Station. The dogs are required to assist the Gardaí with crowd-control and public order difficulties. They also assist in the detection of drugs and explosives. During daytime the dogs accompany the plaintiff on mobile patrol in vans. Patrols take up to six hours during daytime and up to seven hours at night-time. Approximately twenty minutes of each patrol is spent walking in the streets of Dublin City. During the remainder of the patrol the dogs are accommodated within the vans. At all material times two types of van have been used to transport the plaintiff and the dogs. One type of van has been a small vehicle which accommodates two dogs in the rear of the van. The other van has been a large Transit van which accommodates four dogs in cages at the rear of the vehicle. In the smaller vehicle, one dog was accommodated in a cage and the second dog was allowed to roam free in the remainder of the rear of the vehicle. Until 2001, no partition existed between the drivers and passengers and the cages which accommodated the dogs at the back of the vehicles. Sometimes dogs have been permitted to sit directly behind the plaintiff as he drove the vehicle or sat in the passenger seat. 2. By nature and training the dogs are aggressive and will react to strangers and members of the public aggressively by barking loudly and continuously. They respond efficiently to orders from their handlers in various ways (including disabling potential assailants and seeking out unlawful substances at particular chosen locations). In evidence the plaintiff stated that when the dogs are driven in the vans in the city centre they tend to bark most of the time. He said that he can command the dog to be quiet and the dog will obey the command but may become startled within a short time (at traffic lights or by the presence of pedestrians close to the vehicle) and will begin to bark again. He said the dogs have acted in that manner at all times material to these proceedings. 3. The plaintiff stated that until 2002 no measures were taken by the defendants either;, (a), to abate or reduce the level of noise within the vehicles which resulted from the barking of the dogs or, (b), to create a partition between the plaintiff and the drivers of the vehicles and the dogs at the back of the vehicles. He said that no steps were taken to insulate the walls of the vehicle to reduce the sound levels and no sound-proofing of the vehicle was undertaken until 2002. Neither the plaintiff nor any of the other dog handlers were provided with hearing protection by the defendant before 2001. 4. The plaintiff stated that in October, 2001 the members of the Garda Dog Unit were requested to attend the defendant’s Medical Officer Dr. Collins in order to undergo an audiogram test. The plaintiff did so and was required to attend again for further tests. He was advised by Dr. Collins that both of his ears showed evidence of damage resulting from exposure to noise. He was examined by a Dr. McShane in Tallaght Hospital towards the end of November, 2001 and it was confirmed that he had suffered hearing loss in both ears. On the advice of Dr. McShane he sought and obtained ear defenders from the Garda stores and wore them when confined within the vehicles in the presence of the dogs. He continues to do so. He also installed plastic sheeting within the vans to reduce the level of noise in the vehicles. In July, 2002 the relevant Garda vehicles were fitted with bulkheads and insulation. These measures greatly reduced the noise levels to which the plaintiff and his companions were exposed. 4. Sergeant Kevin Morrissey who is a Garda Sergeant attached to the Health and Safety Section of An Garda Síochána stated in evidence that he attended Kilmainham Garda Station in November, 1999 and measured the noise pressure levels within two Garda vehicles using a noise- meter. He identified the vehicles as a Garda Transit van. The smaller vehicle was identified as a Garda Ford Courier van. It has been acknowledged by the parties that these and similar vehicles were used by the plaintiff to transport the Garda dogs on patrol and otherwise, from the commencement of his duties as a dog handler with the Gardaí and that the conditions within the vehicles, and in particular the noise levels, would have been similar to those assessed by Sergeant Morrissey in December, 1999. Sergeant Morrissey said that his task was to monitor the noise levels within the vehicles to establish whether they were within the parameters identified in the 1990 Regulations. He said that during the course of his tests dogs were in the vehicle and he estimated that they were barking approximately 40% of the time but he could not be sure of that figure. He said that the meter recorded certain measurements. Those measurements were downloaded by computer and printed on a document which was adduced in evidence. The readings indicated that the noise pressure levels within the vehicles were in excess of the levels permitted by the Regulations of 1990 in a number of respects. Sergeant Morrissey said that, subsequent to his examination and assessment of the vehicles in November, 1999 he advised the Garda authorities that there was a need for ear protection to be worn within the vehicles by members of the dog unit and that “in the long term” the vehicles would have to be looked at in order to reduce the noise levels created by the barking of the dogs. 5. On the 21st March, 2005, Mr. Niall Lydon, who is an experienced civil engineer trained in the measurement of noise levels, carried out an assessment and tests upon the two Garda vehicles referred to earlier for the benefit of the plaintiff. His examination and assessment took place whilst the Garda dogs were in the vehicles. In evidence he stated that the interiors of the two vehicles had been adapted in 2001 by the installation of bulkheads separating the rear of the vehicle from the driving and passenger seats Mr. Lydon carried out four tests on the Ford Courier vehicle and three tests on the Ford Transit vehicle. The tests within the Ford Courier vehicle took place over periods of time ranging from twenty-five seconds to fifty-five seconds. Tests within the Ford Transit vehicle ranged over periods of between thirty-five seconds and seventy-six seconds. Noise levels within the vehicles varied between 65 decibels when the hatches in the Ford Transit vehicle were closed and 110 decibels when a microphone was placed 400mm into the dog cages within the rear of the Ford Courier vehicle. In respect of the Ford Courier Mr. Lydon found that during one of the tests the noise levels were such that there would be no requirement under the Regulations of 1990 for hearing protection over an eight hour period. During three of the tests the noise levels were sufficient to require hearing protection pursuant to the Regulations of 1990; (a) during an eight hour period, (b) during a period of four minutes and forty eight seconds and (c) during a period of thirty minutes and seventeen seconds. In respect of the Ford Transit van two tests disclosed noise levels indicating no requirement for hearing protection under the Regulations of 1990 for periods of up to eight hours. One test disclosed a requirement for hearing protection for any period in excess of one hour and twenty-five seconds. Referring to the readings adduced in evidence by Sergeant Morrissey arising out of his assessment of the vehicles in December1999, Mr. Lydon said that some of those readings disclosed that the noise levels within the vehicles were, for particular periods of time, in excess of the 90 decibels permitted by the 1990 Regulations. 5. Dr. Alexander W. Blayney, who is a consultant ear, noise and throat surgeon stated in evidence that he examined the plaintiff on the 17th January, 2002, with the benefit of an audiogram which had been undertaken earlier at the Mater Hospital. He said that the plaintiff advised him that he had had no exposure to noise from the use of weapons and there was no history within his family of congenital ear disease or hearing loss. Dr. Blayney said that the audiograms which he examined demonstrated a bilateral frequency sensory neural deafness which is an inner ear deafness. The audiogram demonstrated a dip or a trough at levels between 4000Hz and 6000Hz. He said that this dip or trough was generally indicative of noise injury and, whilst the findings on the left side were less specific, the audiogram on the right side had the hallmark of noise as “an agent in its genesis”. Mr. Blayney compared the audiogram to an audiogram taken on the 1st April, 2005, and said that the presentation on the left ear was similar in both audiograms whilst a slight “return” at 8000Hz in the first audiogram had dropped off in relation to the right ear. Comparing both audiograms to an audiogram taken by Mr. McShane on the 30th November, 2001, Mr. Blayney stated that “the overall appearance of Mr. McShane’s, audiogram, if I can call it that, is very similar to mine… . One can certainly say that all three audiograms are similar”. In summary, Mr. Blayney said that he found evidence of hearing loss in the audiograms and stated “I would be very unhappy to state that noise has not played a definite part in the genesis of this hearing loss”. He said it was impossible to try to quantify the extent to which noise had played a part in damaging the plaintiff’s hearing. Pointing out that he had not heard evidence as to the precise noise levels to which the plaintiff had been exposed and the periods of exposure, he indicated that “I think it would be very difficult to state categorically that the noise of dogs in a confined space would be sufficient to produce quite a severe hearing loss like this. I think it would be up to the court to try and quantify between the two, but I think there are two cofactors here and I think it would be very difficult to negate one from the other”. Pointing out that he had not been provided with evidence indicating that the plaintiff had been exposed to noise levels in excess of what was permitted by law he stated that if engineering evidence established that the statutory limits had been exceeded then that would “increase the proportion of hearing loss that can be attributed to noise as opposed to …. other factors…”. 6. Mr. Dermot Dougan who is an audiologist stated in evidence that in 2005 he was retained by the plaintiff’s solicitors to advise the plaintiff and was provided with certain reports and a number of the plaintiff’s audiograms which had been taken between the 30th November, 2001, and 15th February, 2006. He said that, having examined the audiograms, he was of the opinion that the plaintiff suffered a moderate to severe high-frequency hearing loss with particular application to his left ear. He said that his “educated guess” would be that this was a noise-induced hearing loss. The plaintiff had provided him with his family and occupational history which was as described above. He laid particular emphasis upon the fact that the audiograms showed no particular deterioration during the 5 year period between 2001 and 2006. He was of the opinion that this was because the plaintiff used ear defenders whilst working during that period. He stated that this fact supported his view that the deterioration demonstrated in the earlier audiograms was noise-induced. He said that Mr. Lydon’s evidence suggested sound levels of between 89 decibels and 110 decibels for “approximately 40% of the time” during work shifts of “6 to 7 hours” hours throughout a period of twenty -six years and he stated that it was “certainly believable, feasible and I believe . . . probable that this extent of hearing loss could and did occur”. 7. Applying the so called “Green Book” principles, the levels of disability recorded in five separate audiograms undertaken between the 30th November, 2001, and the 16th February, 2006, varied between 13.44% (with an estimated disability at age 62 of 20.03%) and 20.94% (with an estimated disability at age 62 of 25.36%). All of the expert witnesses who testified in the proceedings agreed that the five audiograms, when appropriate margins of error were taken into account, were similar to and consistent with one another. DUTY OF THE DEFENDANTS It has been argued by Mr. McCartan S.C. on behalf of the plaintiff that the duty owed by the defendants to the plaintiff has at all material times been twofold, that is; (a) a duty at common law and, (b) statutory duties pursuant to (i) the Safety, Health and Welfare at Work Act, 1989 and (ii) the European Communities (Protection of Workers) (Exposure to Noise) Regulations, 1990 (S.I. No. 157 of 1990). LEGISLATIVE PROVISIONS Mr. McCartan S.C. contends that the defendants have failed to comply with the provisions of ss. 6(1) and (2)(a) of the Safety, Health and Welfare at Work Act, 1989 (hereafter the Act of 1989). Those subsections provide as follows:- “6.— (1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the safety, health and welfare at work of all his employees. (2) Without prejudice to the generality of an employer's duty under subsection (1), the matters to which that duty extends include in particular—
"place of work" includes any place, land or other location at, in, upon or near which, work is carried on whether occasionally or otherwise and in particular includes—
(b) as affecting the extent (if any) to which breach of a duty imposed by any of the existing enactments is actionable. The Act of 1989 came into force on the1st November, 1989. Mr. McCartan S.C. also contends that the defendants have failed to comply with the statutory duty imposed upon them by article 4 of the European Communities (Protection of Workers) (Exposure to Noise) Regulations, 1990 ( S.I. No. 157 of 1990) (hereafter the “Regulations of 1990”). The Regulations of 1990 were made pursuant to the provisions of the European Communities Act, 1972 in order to give effect to the provisions of Council Directive 86/188/EEC of 12 May 1986 on the protection of workers from the risks related to exposure to noise at work. That Directive was declared to have been issued because: “…… exposure to high noise levels is encountered in a large number of situations and therefore many workers are exposed to a potential safety and health hazard; …….a reduction of exposure to noise reduces the risk of hearing impairment caused by noise; ……. where the noise level at the workplace involves a risk for the health and safety of workers, limiting exposure to noise reduces that risk …..the most effective way of reducing noise levels at work is to incorporate noise prevention measures into the design of installations and to choose materials, procedures and working methods which produce less noise ….the provision and use of personal ear protectors is a necessary complementary measure to the reduction of noise at source, where exposure cannot reasonably be avoided by other means;” Article 4 of the Regulations of 1990 provides as follows: “ (1) Noise experienced at work shall be assessed and, when necessary, measured from time to time by an employer in order to identify the workers and work places referred to in these Regulations and to determine the conditions under which the specific provisions of these Regulations shall apply. (2) Every employer shall be responsible for the assessment and measurements referred to in paragraph (1) of this Regulation being competently planned and carried out at suitable intervals. (3) Any sampling shall be representative of the daily personal exposure of a worker to noise. (4) The methods and apparatus used in the measurement of noise at work shall be adapted to the prevailing conditions, particularly in the light of the characteristics of the noise to be measured, the length of exposure, ambient factors and the characteristics of the measuring apparatus………. (6) The recording and preservation of the data obtained pursuant to this Regulation shall be kept for a period of three years by the employer concerned in the form set out in the First Schedule to these Regulations, and an inspector of the National Authority for Occupational Safety and Health and the workers concerned or their representatives shall be given access to the said data at all reasonable times on a request being made in that behalf of the employer concerned.” The Regulations of 1990 came into force on the 1st July, 1990.
3. —Judicial notice shall be taken of the Report in all proceedings before a court claiming damages for personal injury arising from a hearing injury.”
That Report has been referred to in these proceedings as “the Green Book”.
( a ) the duration and level of exposure is controlled so that its cumulative effect is unlikely to cause harm, or ( b ) ear protection is provided which effectively reduces to a level which is unlikely to cause harm the sound pressure level at each ear of the person.” (a) Duty at Common Law The provisions of s.6 of the Act of 1989 upon which Mr Mc Cartan S.C. relies, imposed upon employers a duty of care no greater than the duty already imposed upon employers at common law. A breach of its provisions does not per se afford a civil remedy to a person, (such as the plaintiff in these proceedings) who may have been adversely affected by the breach (see s.60 of the Act). Subsection 1 of s.6 imposed upon employers a duty to ensure “ so far as is reasonably practicable, the safety, health and welfare at work of employees”. I cannot see how the imposition of that general obligation upon employers could have made the risk of hearing loss resulting from noise generated by the barking of dogs reasonably foreseeable . Subsection 2(a) of s.6 requires that any “ place of work under the employer’s control” must be maintained safe and without risk to health “. . . so far as is reasonably practicable. . .”. The imposition of that duty did not make the risk of an injury to the plaintiff’s hearing from the noise created by barking dogs reasonably foreseeable to the defendants. It has been established on the evidence that the levels of disability recorded in the audiograms undertaken between 30th November, 2001, and the 16th February, 2006, were caused by reason of the plaintiff’s exposure to the excessive noise levels between 1979 and November, 2001. I am mindful also of the evidence of Mr. Blayney who said that there were two “cofactors” which caused the damage and that it was difficult for him to negate one from another. I am satisfied on the evidence that the plaintiff has suffered significant permanent and irreversible noise related hearing damage as a result of exposure to excessive levels of noise from barking dogs between 1979 and November, 2001. However, I am also satisfied on the evidence and by way of Judicial Notice that most of that damage was caused by his exposure to excessive noise levels between 1979 and July, 1990. The plaintiff has failed to establish that the injury and damage caused to his hearing between 1979 and July, 1990 was the result of negligence or breach of any statutory or other duty on the part of the defendants. It is likely that the plaintiff sustained additional damage to his hearing between July, 1990 and November, 2001as a result of negligence by the State, and by reason of clear (and largely unchallenged), breaches by the State of regulations which the State itself introduced in 1990. No precise evidence has been adduced as to the level of that additional damage. I am reluctant to speculate or to accept Dr. Blayney’s invitation to “try and quantify between …” the various factors which he identified in order to try to measure the extent of the plaintiff’s additional hearing loss. I can only conclude on the evidence adduced that it is likely to have been comparatively small. Its consequences for the plaintiff however cannot and should not be minimised or trivialised. The plaintiff has suffered a serious permanent and irreversible injury in the course of his employment by the State. A part of that injury has been caused by negligence and breach of statutory duty by the State. In accordance with law he is entitled to recover damages from the State to compensate him for that part of his injury. I would assess those damages at €15,000. |