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Barry v. Ireland [1999] IESC 85 (7th December, 1999)

THE SUPREME COURT

No. 315/98

Hamilton C.J.

Denham J.

Keane J.

Murphy J.

Lynch J.

BETWEEN:

PHILIP BARRY

PLAINTIFF/RESPONDENT

AND

THE MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS/APPELLANTS

JUDGMENT delivered the 7th day of December 1999 by Lynch J. [Nem. Diss.]

1. This is an Appeal by the Defendants (hereafter the State) from a Judgment and Order of the High Court (O’Donovan J.) delivered and made on the 23rd October 1998 whereby the State was found to be liable to the Respondent for noise induced hearing loss suffered by him and damages were assessed in his favour at the sum of £31,845 made up as follows:-

Pain and suffering to date	£9,800.00
Pain and suffering in the future	£12,045.00
Special damages in the future	£10 000 00
Total	£31,845.00

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(2)

2. By a Notice of Appeal dated the 10th November 1998 the State appealed to this Court:-

“From that part of the Order and Judgment of the High Court whereby the Plaint if was awarded the sum of £1 0, 000.00 for ‘future losses “, which, added to the other sums awarded, brought the costs awarded on the matter within the jurisdiction of the High Court, for an Order of this Court that the said Order be set aside in so far as it relates to the said award of £10, 000 and that in lieu thereof this Court do assess the damages to which the Plaintiff is entitled or, alternatively do direct a new trial of the issue as to damages to which the Plaintiff is entitled and award such costs as such award would attract.”

3. No appeal was brought against the finding of the High Court that the State was liable to the Respondent in damages for the noise induced hearing loss suffered by him and the ambit of the Notice of Appeal of the 10th November 1998 as regards the damages assessed was somewhat ambiguous. By a further Notice headed “Amendment of Notice of Appeal” dated the 1st July 1999 the State notified the Respondent as follows:-

4. “Take notice that at the outset of the hearing of the Appeal in the above matter an application will be made to this Honourable Court by counsel on behalf of the above named Defendants/Appellants to amend the Notice of Appeal herein to insert and allow an Appeal from the Judgment and Order of the High Court in addition to the Appeal in respect of the sum awarded for ‘future losses “, being £10, 000, referred to in the said Notice of Appeal, in respect of the following:-

(a) the award of damages for pain and suffering to date £9, 800.00

(b) the award of damages for pain and suffering in the future £12, 045.00.”

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(3)

5. However when the Appeal was moved before the Supreme Court counsel for the State confined the Appeal to the sum of £10,000 “special damages in the future”.

The Factual Background

6. The Respondent was born on the 7th October 1957 and is a married man with one child. He enlisted in the Army in November 1975 at the age of 18 years. Over the intervening years he was exposed to most types of gun fire noise, including mortars, without any ear protection. He was promoted ultimately to the rank of Company Quarter Master Sergeant which was the rank held by him at the date of the trial in October 1998 at which time he was 41 years of age. He was unaware that he was deaf although his wife and parents had been telling him that he was deaf since the early 1980s. In 1995 he had an audiogram as part of his annual Army medical check-up and was told that he had high tone deafness in both ears, following which these proceedings were issued on the 12th March 1997. The Respondent had shortly before the trial in October 1998 re-enlisted in the Army for a further two years in the ordinary way and had been accepted for such period.

The Submissions

7. Mr Reidy, Senior Counsel for the State submitted:-

(1) The Respondent has a job as Company Quarter Master Sergeant which he is well capable of performing.

(2) There is no evidence that he is likely to be discharged from the Army before the normal retiring age of 60 years.

(3) There is no evidence of what prospects the Respondent would have in civilian life if he were to leave. The Respondent has the ideal job for such disability as he has and the future loss claim is a purely manufactured element of loss.

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(4)

8. Mr Geraghty, Senior Counsel for the Respondent submitted:-

(1) In answer to the last submission of Counsel for the State that the claim for future loss of earnings was a manufactured element of loss Mr Geraghty referred to page 1 of the transcript of the learned trial judge’s judgment in which he says:

‘I think it is appropriate to comment that I considered him to be a very fair and honest man who did not attempt to exaggerate in any way.’

(2) Counsel referred to various passages from the transcript of evidence such as the Respondent’s evidence at Questions 23 and 24 and Dr. O’Meara’s evidence at Question 128.

(3) Even if the Respondent remained in the Army until the age of 60 years he will thereafter be at the loss of opportunities for employment and leisure activities which would have been open to him were it not for the noise induced hearing loss suffered by him.

Conclusions

9. This Appeal is really on the facts as found by the learned trial judge and on the question as to whether there was credible evidence to support such findings. It is appropriate that I should first quote the above two extracts from the Transcript of Evidence which were referred to (inter alia) in the submissions of Counsel for the Respondent.

“23 Q. Now you have had 23 years service in the Army?

A. That’s correct.

24 Q. What do you intend to do for the future?

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(5)

A. I was hoping to go out but I think my job prospects outside might be a bit restricted due to the fact of my hearing. I have not checked it out for the moment because I signed on only recently for another two years. So I have two years to decide now what I intend to do.

128 Q. Can I ask you Dr. O’Meara as to whether the deterioration in hearing is a progressive deterioration?

A. It is. As it progresses if there is already some high tone deafness it extends more into the lower tones as well as increasing in the higher tones, so the speech frequencies become affected. I am concerned My Lord about a number of these men when they leave the Army they go into something like security and he is going to have trouble hearing on a mobile phone. He is going to have trouble taking, picking up a message on the mobile phone. I have experience of some of these men who have left the Army: one in particular who had to leave the Army because he could not pick up messages on the mobile phone. He had to leave security, sorry.”

10. I now quote some further extracts from the transcript. In answer to cross-examination by counsel for the State in the High Court the Respondent said at Questions 60 to 65 as follows:-

“60 Q. Now you say in your job, just coming to your hearing for a moment, you say in your job you have to use the telephone?

A. Yes fairly regularly.

61. Q. Yes. That would be so in many events in administration, in the ordinance, it means taking calls from other units?

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(6)

A. Yes.

62. Q. And with them mentioning what they wanted and whether you can supply it?

A. Yes.

63. Q. What is the background noise you complain of that you cannot hear properly?

A. Inside in the office I would have 3 out of 4 offices there. They are enter clerks they would be called. They keep the books up to date under my supervision and these chaps would be talking and they are working away at the time and if they are talking I would find it difficult to hear.

64. Q. On the telephone?

A. On the telephone yes most certainly. If I put it up to my right ear, because I am right handed, I would be inclined to switch it to my left ear.

65. Q. There is improvement when you put the telephone to your left ear, is that correct?

A. That’s correct, yes.”

11. Mr Patrick O’Meara, Ear, Nose and Throat Surgeon said at Questions 123 to 128 and Questions 132 to 134 as follows:-

“123 Q. Well is it your view than that he has both a hearing deafness in the speech frequencies, particularly on the right side and also a high tone deafness in both ears?

A. Yes, that is right.

124 Q. I take it that there is no useful treatment for this?

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(7)

A. No useful treatment My Lord and this type of deafness with a steep drop, a hearing aid is not of much help. I am thinking of when he is older.

125 Q. Yes.

A. I would like to make one other remark and that is with regard to the high tone deafness in the left ear. When he gets older - the graph is already beginning to come down at three thousand in the left ear. As you get older the deafness extends into the lower tones. This is the pattern that always happens as you get older. So that he is going to have significant trouble even with his left ear at 55, 60 years of age.

126. Q. What about his right ear as he gets older and moves into the age bracket 55 to 60?

A. Why do I say 55?

127. Q. No in relation to his right ear how will that progress as he gets older?

A. Well again I think calculations have been made as to what extra deafness he will have in percentage wise when he is about 60, 62. I think this has been calculated. I have not done the calculations.

128. (already quoted above).

132. Q. Doctor if this man in two years time, when he I think will be then 43 years of age, decides to go to civilian life?

A. Yes.

133. Q. Apart from security are there any other job opportunities denied to him or made more difficult by reason of his condition?

A. Well my only experience My Lord is that a number of places in employment now, particularly any place where there is noise in the

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(8)

occupation test Applicants, they test the hearing of Applicants and if their hearing is not normal they are not accepted because they are afraid of litigation later against the place of employment. So this is, more and more places are testing people’s hearing.

134. Q. If such a test were carried out I would presume his then current condition would emerge via

A. Some of them are very strict. Some of the men in the Army go for transport. C.I.E. and these places are extremely strict with regard to hearing.”

12. The learned trial judge stated and made findings of fact particularly at page 3 and page 9 of the Transcript of his Judgment as follows:-

“Mr O‘Meara said that it was his view that the Plaintiff would have problems with regard to future employment when he left the Army. He said in his experience of soldiers with similar hearing problems, they would have difficulty getting work in the security area because they have difficulty using mobile phones and in respect of an awful lot of other jobs it is becoming the practice nowadays for would-be employers to carry out hearing tests on the staff that they intend to employ and if those tests indicated a hearing loss they would reject them because they were afraid of claims being made against them.

However, on top of that and having regard to the decision of Mr Justice Barron in the case of Bastik v The Minister for Defence which was delivered in November 1995

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(9)

that in cases of this nature regard must be had for the effect which a loss of hearing might have or will have on a Plaintiff’s quality of life I think I have to have regard to the unchallenged evidence of both the Plaintiff himself but more particularly that of Dr. O’Meara as to the problems which this Plaintiff may experience in the future with regard to getting employment when he leaves the Army. He said he fears for the future in that respect because he feels that his hearing problems may inhibit his prospects for employment. Dr. O’Meara, who was not challenged, said that in his experience the Plaintiff has very good reason to be worried because he will have problems in Dr. O’Meara ‘s view obtaining employment in the future. Now I have no figures in that regard but it seems to me that in the light of Dr. O’Meara ‘s evidence it would be reasonable for me to conclude that the probabilities are when this man leaves the Army and goes out into civilian life and tries to get employment he is not going to be able to command the type of income he might have been able to command had he not got this hearing loss. Again somewhat arbitrarily, but I think reasonably, I would assess his future loss in that regard at £10,000.”

13. The question for this Court is as to whether there was reasonably credible evidence to support the foregoing findings of the learned trial judge. In my view the few passages which I have quoted above from the transcript of the evidence given at the trial clearly support the findings of the learned trial judge and in these circumstances I would dismiss this Appeal.