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Cite as: [1998] IESC 36

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Smith v. Minister for Defence [1998] IESC 36 (4th November, 1998)

THE SUPREME COURT

RECORD No: 153/1997

O’FLAHERTY J

LYNCH J

BARRON J

BETWEEN:

MICHAEL SMITH

PLAINTIFF/RESPONDENT

AND

THE MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS/APPELLANTS

JUDGMENT DELIVERED THE 4TH DAY NOVEMBER 1998 BY LYNCH J [Nem. Diss.]

1. This is an appeal by the Defendants/Appellants against a judgment and order of the High Court (Johnson J) of the 20th February 1997 whereby the Plaintiff/Respondent was awarded £20,000 damages together with costs against the Appellants. The Plaintiff’s claim was that he suffered hearing loss by being exposed to the noise of gun fire without adequate ear protection while serving in the Army for upwards of twenty years before he retired in 1992. A full defence was filed in the course of the pleadings, but at the trial it was conceded that the Respondent was exposed to gun fire noise without adequate ear protection and the only issue between the parties was whether or not such gun fire noise caused any hearing loss to the Respondent.

2. The Respondent was born on the 28th September 1941. He served in the Army from 1958 to 1961. He rejoined the Army in 1971 and subsequently attained the rank of sergeant but he

had to retire in 1992 due to severe diabetes unrelated to the matters the subject of this action. He is a married man with three teenage children.

3. During his time in the Army the Respondent was exposed to gunfire noise to an above average extent including training other members in the use of firearms. The learned trial Judge delivered his judgment as follows:

“The plaintiff in this case makes a claim in respect of deafness which he now suffers. The case had been complicated by a report given by the plaintiff’s own specialist that in 1994 he was not suffering from any hearing disability and his hearing was about normal and that was done on the audiogram upon which it is now claimed that he is suffering from noise induced disability and that his present condition was produced by noise induced disability.

Mr Kelly, on the other hand, indicates that his present condition is normal for a man of his age. That is, it is the mean and median of a man his age. Therefore Mr Kelly’s evidence today is in agreement with the statement of Mr Fennell back on the 5th of July 1994 and is based on the same audiogram. That being so, I now look to the plaintiff’s evidence.

The plaintiff’s evidence is that he is now suffering from hearing difficulties. He is suffering from hearing difficulties which he says make it inconvenient for him to mix socially with numbers of people, putting up the television, unable to speak to his wife and unable to answer the telephone. He says this came on suddenly.

At one level, the plaintiff impressed me because he seemed an honest man and I accept that he may have some difficulties. However, I hold as a fact that he is exaggerating dramatically, particularly with regard to his statement with the telephone. However, I accept that he may have suffered and has suffered a regression in his hearing and I think Mr Sweetman may very well be right, that he began to appreciate it.

Doing the best I can, and with a great deal of doubt, I accept that he may have had hearing better than that which he would have anticipated having for his age and that this may have been affected by the excessive amount of gunfire to which he was exposed.

However, I find as a fact that whereas his hearing has been diminished as a result of gunfire, that it has been reduced to the average and I hold as a fact and I accept Mr Kelly’s evidence that at the present moment his hearing is the average hearing for a man of his age. Therefore it is anticipated that in the future he will continue as a man of his age and I will award him a figure of £20,000 damages for loss of hearing.”

4. The Appellants served a notice of appeal which so far as material reads:

" ........... For an order that the whole of the said judgment or order and in so far as same relates to the question of general damages for pain and suffering be set aside and in lieu thereof a new trial of this action be ordered or such further and other

order or orders as to this honorable Court deems fit together with a further order that the costs of this appeal be paid to the defendants/appellants.

And take notice that the following are the grounds of the appeal.

1 That there is no or no sufficient evidence upon which the learned trial judge could find that the plaintiff was entitled to the sum of £20, 000 by way of pain and suffering.

2 That the said sum of £20, 000 awarded to the plaintiff in respect of general damages was excessive and exorbitant.

3 That the award of £20, 000 by way of general damages was against the evidence and the weight of the evidence.”

THE SUBMISSIONS

5. Mr Butler Senior Counsel for the Appellants submitted:

1. The learned trial Judge found as a fact that the Respondent enjoyed average or normal hearing for a man of his age, which at the date of trial was fifty-five and a half years.

2. There was no evidence of the standard of the Respondents hearing before his exposure to gunfire noise. There was no evidence that it was better than average before such exposure to noise.

3. In the absence of any such evidence, even if it could be inferred that there was a loss of hearing, it is incapable of measurement and a fortiori incapable of monetary measurement.

6. Mr Antoniotti Senior Counsel for the Respondent submitted:

1. The learned trial Judge found that the Respondent’s hearing was above average before exposure to gunfire noise.

2. There is never a pre-army hearing test of any nature. In the absence of such a test the learned trial Judge has to assess the witnesses and especially the particular claimant and if the claimant has been exposed to more than normal gunfire noise (as was the Respondent) the learned trial Judge is entitled to infer damage causing hearing loss.

3 There was evidence that the Respondent had suffered noise induced hearing loss and the learned trial Judge was therefore entitled to infer that, as his present hearing was average or normal, his hearing before exposure to such noise must have been above average or normal.

4. In the circumstances the learned trial Judge was entitled to award damages as he did for the reduction in hearing from above average or normal to merely average or normal.

CONCLUSIONS

7. It must first be noted that the appeal to this Court is against the amount of damages only and the order sought from this Court is an order for a new trial. No order is sought for a dismissal of the action on the basis that the learned trial Judge ought to have awarded no damages.

8. If the learned trial Judge accepted that the audiogram referred to in the first two paragraphs of his judgment quoted above indicated some noise induced disability (which he does not clearly find one way or the other) then there was evidence from which he might infer that the Respondent’s hearing was above average before being subjected to gunfire noise. He did so infer “with a great deal of doubt” and despite his finding that the Respondent was “exaggerating dramatically” . But there certainly was no evidence of the extent to which the Respondent’s hearing was above average before such exposure to noise and in the absence of any way of measuring that extent there is no way of measuring the appropriate damages. It may be that the sum of £20,000 measured by the learned trial Judge is far too little or far too much or just right: but there is no way of having any real idea at all of which of these possible results would be the correct one.

9. This case was heard before the passing of the Civil Liability (Assessment of Hearing Injury) Act 1998. In the absence of the assistance afforded by the 1998 Act and the report therein referred to there really was no way of measuring a figure in this case for damages which the Court could be reasonably satisfied would be fair, just and reasonable as between both parties. If the case is sent back to the High Court for retrial the Act of 1998 will apply to such retrial and the report referred to in the Act will be available to assist the High Court Judge in arriving at a figure (if any) which he can be reasonably confident is fair, just and reasonable in all the circumstances of the case. I have said “if any” because I want to emphasise that just because a person has been in the Army and has been exposed to gunfire noise without adequate ear protection does not mean that that person is automatically entitled to damages. The onus is on such person to establish that any hearing loss (assuming that there is such) was caused by such exposure to gunfire noise and not by other causes such as the normal ageing process or trauma or excessive noise extraneous to his army service. In all the circumstances of this case and for the foregoing reasons I would set aside the award of damages and would remit the case to the High Court for retrial.