Supreme Court of Ireland Decisions

1. This is an appeal by the defendants/appellants (hereinafter referred to as the defendants) against a judgment of the High Court (Johnson, J.) delivered on 21st July, 1998, [1998] 4 IR 496. No issue of liability arose in the High Court or on this appeal. This is a case of assessment of damages for the plaintiff/respondent (hereinafter referred to as the plaintiff) as a result of the personal injuries which he suffered due to the admitted negligence of the defendants in failing to supply him with adequate ear protection during his employment in the Defence Forces. The plaintiff was born on 24th April, 1963. He is a married man. He joined the Defence Forces in 1980 and he continues to serve in the army.

2. It was agreed by the parties that the plaintiff suffers a 7% disability at the moment, using the formula provided for in the Green Book. This formula was introduced by Civil Liability (Assessment of Hearing Injury) Act, 1998. The Green Book was considered in Greene v. The Minister for Defence [1998] 4 IR 464 by Lavan, J. who accepted it as a fair and adequate means of measuring disability. The learned trial judge in this case accepted that the Green Book is a fair and reasonable means of calculating disability at a given point in time and that the Green Book should be followed by all courts unless there is a specific reason in any given case for not so doing. However, he continued at page 500:

3. As to a formula for age related hearing loss he referred to the evidence of Dr. Flynn, Professor Lutman and Professor Alberti and was satisfied that the correct table to take and

4. Having regard to the formula adopted the learned trial judge held that the plaintiff will have a cumulative 20% hearing disability at the age of 60. He took that 20% figure for the purpose of assessing damages, which figure is made up of a combination of noise induced hearing loss and age related hearing loss which it is anticipated the plaintiff will have when he is 60. As to the assessment the learned trial judge held at page 501:

5. He then assessed damages allocating moneys for each degree of disability. The learned trial judge determined that he would grant £3,000 per one per cent of disability to a person at the age of 30. This scale ranges down to £1,500 per one per cent of disability when the injured person is 60 years of age. For percentages of damage between 10% and 25% the learned trial judge determined that the award per cent of disability would range from £6,000

6. Based on this scale the learned trial judge calculated the damages for the plaintiff. The 9% disability suffered at the age of 35 being £2,750 x 9 equals £24,750. As to the age .related disability of 13% which it was determined the plaintiff would suffer when he is 60 years of age, the learned trial judge calculated also on his formula; the tenth degree of disability at the rate of £1,500 plus the remaining disability at £3,000 per percentage. Thus, 12 x £3,000 is £36,000, which taken with the £1,500 totals £37,500. As this latter figure is the calculation of the figure which would be due to the plaintiff when he is 60 years of age on this formula, the learned trial judge then required an actuarial calculation to reduce the figure to the appropriate sum to be paid out at that time by the court, which was determined at £15,825.

7. Other matters concerned the learned trial judge, including a reduction in employment opportunities and promotion for the plaintiff. For these matters he allowed £10,000.

8. Thus, the total award on the assessment of damages was:

9. The defendants have appealed against the order of Johnson J. There is no appeal against the facts found. The finding of the noise induced hearing disability at 7% and the tinnitus at 2%, being a total of 9% disability, is taken as a proper application of the Green Book. Owing to an error by the defendants an incorrect figure was given to the High Court as to the future age related hearing loss of the plaintiff. However, the defendants did not contest the figure of 13% in this case in the circumstances.

10. The kernel of the appeal is against the formula used by the learned trial judge, on the conversion of the disability into a sum of money, as being excessive. The defendants requested the High Court to adopt a formula which would create a just decision for the plaintiff and would be a formula applicable to similar cases. The learned trial judge determined a formula to assist the defendants. However, the defendants appeal against the formula determined and submit that its application would lead to excessive awards.

11. On this appeal there are two issues:

12. There are many thousands of ‘army deafness’ cases proceeding through the courts. The Civil Liability (Assessment of Hearing Injury) Act, 1998 provided for judicial notice to be taken of a report to the Minister for Health and Children by an expert hearing group, for courts to have regard to certain matters contained in that report in certain circumstances and for connected matters. This Report, the Green Book, establishes a fair and adequate method of calculating hearing disability. In effect it provides a formula for the assessment of hearing handicap.

13. Johnson J. held that the formula established by the Green Book was incomplete as it did not provide for the future position of the plaintiff when age related hearing loss was combined with the noise induced injury. Counsel for the defendants acknowledged that account should be taken of future age related hearing loss when calculating damages for noise related hearing loss.

14. The matter for determination relates to a formula for assessing damages. A formula having been obtained through the Green Book for the assessment of hearing disability it is now a question of whether it is appropriate to establish a formula for determining the quantum of damages for hearing loss in similar cases. It is of fundamental importance that the administration of justice be fair. This includes the concept that there should be consistency in similar cases in decision making, including the determination of awards of damages. The constitutional guarantee of equality (Art. 40.1) requires that persons be held equal before the law. There is an obligation of equal treatment. Thus, similar cases should be determined in a constant and foreseeable pattern. The concepts of justice and fairness

15. It is appropriate to adopt guidelines in relation to damages to enable the decisions of the courts in similar cases be consistent. It is appropriate to have a formula for converting similar injury into damages. However, whilst a general formula is appropriate for assessing the general situation a court retains the power at common law and under the Constitution to make a fair decision for each particular case. Damages are intended to represent fair and reasonable monetary compensation for pain, suffering, inconvenience and loss of pleasures of life which the injury has caused to the plaintiff in the particular case. A formula is a guide line for a judge in similar cases from which a judge may depart in a particular case if the specific circumstances so require to achieve a just result.

16. The formula adopted by the learned trial judge, set out in Schedule A, works from a base figure of £1,500 for one per cent of disability at the age of 60 and this is doubled when the disability is in the 10% - 25% range. The court was informed that the going rate for damages for complete deafness is in the range of £125,000 to £175,000 i.e. approximately £150,000. This may have been the basis for the original determination of £1,500 per one per cent of disability which can be inferred from Greene v. Minister for Defence [1998] 4 IR 464 and which was adopted by Johnson J. in this case as part of his formula.

17. However, when the scale proposed by the learned trial judge is applied it creates a system of excessive awards. The base of £1,500 for a person aged 60 for a disability in the range 1% to 10% is too high and the doubling of the sum for disability between 10% and 25% would lead to inordinate awards. I have come to this conclusion having considered the

18. On the second day of the appeal in this case the defendants, at the request of the Supreme Court, presented a Department of Defence Hearing Loss Cases Proposed Scale of Damages. It was on two sheets. The first sheet, in a column headed “Age”, gave ages in five-year spans from 25 to “60 and over”. The second column related to each percentage point of disability in the range from 1% to 10% (including future ageing in brackets). The third column related to each percentage point of disability from 11% onwards (including future ageing in brackets). A copy of this sheet is set out in Schedule B, Part 1, attached to this judgment. The second sheet was an enlarged sheet wherein the left hand column headed “Age” ran from 25 to 60 and the line across the top related to percentage points of disability from 1 to 25. A copy of this second large sheet is set out in Schedule B, Part 2 and Part 3, attached to this judgment. The proposed scale of damages of the defendants is thus set out.

19. The sums of money on the defendant’s proposed scale, in Schedule B, include a sum for future ageing. All parties now agree that there should be an element of damages for the future age related disability. On this formula the base figure per percentage point of disability in the range 1% to 10% for a 25 year old is £1,625 and of this sum £438 is to allow for future ageing. On the other hand the base figure per percentage point of disability for a 60 year old and over is £750, with no figure for future ageing. It was the State’s position that this was because at that age the noise related hearing loss graph and the age related hearing loss graph are coming together.

20. As previously stated I am satisfied that the formula proposed by the learned High Court judge, Schedule A, would lead to excessive awards. In addition, there is another negative factor in the High Court formula. Under the formula proposed by the High Court three calculations are necessary (one for the present, one to include future ageing, and one ‘being the actuarial calculation on compensation today for future loss). Under the Department of Defence proposal, Schedule B, there is one calculation which includes future ageing as a component. Such an approach, involving one calculation only, is to be recommended.

21. Looking at the proposed scale of the Department of Defence, examples can be considered. Thus, a thirty year old person with a twenty five per cent hearing disability, under this scale the appropriate sum would be £43,125, which includes a sum for future ageing. Other examples also show it to be an appropriate scale. Thus, a 35 year old with a 9% disability would receive £12,375; a 50 year old with an 18% disability would receive the sum is £20,000; a 25 year old with a 20% disability would receive the sum of £36,563, a 40 year old with a disability of 11% would receive the sum of £14,063.

22. I am satisfied that the formula proposed by the Department of Defence is an appropriate guideline to determine in a just way similar cases. Whilst the formula may be adopted as a guideline courts retain their discretion to make awards of sums appropriate and fair in specific cases to a particular plaintiff in light of the particular circumstances and to adjust awards accordingly. However, there should be a specific reason in a case for not following the guidelines.

23. In addition to the sum the subject of these guidelines the court may include other issues. Thus, in this case the learned trial judge included a £10,000 award for loss of earnings for the future which included loss of opportunity to serve in the Lebanon, loss of promotions and other losses. This figure was not contested on this appeal.

24. It may well be that in the operation of the guidelines minor amendments may have to be made. Thus, it may be found that at the extremes of the guidelines (the less serious injury, the more serious injury, the older plaintiff or the younger plaintiff) that there may need to be flexibility and some fine tuning.

25. The court was informed that in this case the sums awarded in the High Court had been paid out. Thus, the issue on the appeal is the formula; the guidelines. I conclude that it is fair and just to adopt a formula or guidelines to enable a consistent level of damages be awarded in similar cases. This is subject to the general principle which requires justice to be applied in all cases, consequently attention may have to be drawn to particular facts in particular cases.

26. I am satisfied that the scale proposed by the learned High Court judge would lead to excessive awards. I conclude that the scale of damages proposed by the Department of Defence is a fair and just scale giving rise to a just guideline, including as it does a sum for current disability and a sum related to future age related disability. This being so it is appropriate to apply the Department of Defence proposed scale of damages as a guideline in similar cases subject to the limitations expressed in this judgment.

27. The plaintiff is an army private who lives in Limerick and was born on the 24th April 1963. He joined the army in 1980 and was still in the army when the case was heard in the High Court. It is accepted on behalf of the defendants that, during the course of his army career, he was exposed to

28. The defendants now appeal to this court on the grounds that each of the sums awarded is excessive and/or contrary to the evidence.

29. The claim in this case is one of a huge number of similar claims made by members of the defence forces, some of which have already been heard in the High Court and, in some instances, have been the subject of appeals to this court.

30. With a view to establishing criteria for the assessment of hearing disability, an expert group was established by the Minister for Health and Children in November 1997. The expert group presented their report entitled “Hearing Disability Assessment” to the Minister in 1998. It has since become

31. The Act, although requiring the courts to have regard to certain parts of the Green Book, did not prescribe any formula for translating the degree of hearing disability established in any case into monetary compensation. From his experience in dealing with many of these cases, the learned High Court judge had concluded that it was desirable that there should be established, so far as practical, a formula for translating hearing disability assessed by reference to the Green Book into such compensation. Having heard evidence from a number of experts called on behalf of both the plaintiff and the defendants, in a written judgment delivered on the 31st July 1998 he calculated the damages to which he considered the plaintiff entitled in accordance with a formula set out in the form of a scale at the end of the judgment.

32. During the hearing of the appeal, at the request of the court, the defendants furnished a scale which, in their submission, was more appropriate than that adopted by the learned High Court judge. The two scales are respectively referred to in this judgment as “the High Court Scale” and “the State Scale” and are set out in Appendices A and B to this judgment.

33. The plaintiff joined the army in 1980 when he was 17 or 18 years old. He said that from the beginning of his career he noticed that when he came from the firing range, there was a buzzing in his ears, but that he did not take any notice of it because it was regarded as “a normal thing” amongst soldiers. The buzzing would last for a couple of hours after the range practice and then go away. In the three of four years prior to the hearing, he had noticed that this buzzing, which he now knew to be correctly described as tinnitus, was increasing and that he had it now about three or four times a week. In 1995 he was referred for an audiogramme, an accepted method of determining hearing loss. It was clear from this audiogramme that the plaintiff had suffered a hearing loss, the extent of which will be discussed in greater detail at a later stage.

34. The plaintiff said that the effect of this hearing loss was that, when he was in a group of people, he found it difficult to hear and understand what people were saying. While listening to the radio or watching television, he had to have the volume turned up, which was a natural source of irritation to his family. He also thought that this affected his social life, since he had to keep asking his wife to tell him what people were saying to him.

35. The plaintiff said that until recently his duties involved him working as a waiter in the officers’ mess. He found that, as a result of the background noise during functions in the mess, he had to ask people to repeat their orders or requests and that he found this embarrassing. As a result, he gave up that particular job after about two years.

36. The plaintiff said that in quiet surroundings, talking to a single person, he was able to communicate quite well. He could also conduct telephone conversations in a normal fashion, except that he would have to close the doors or lower the volume on the television. He would also on occasions fail to hear the telephone or the doorbell ring.

37. The plaintiff said that, as a result of the hearing loss disclosed by the audiogramme, he had been reduced from grade 1 to grade 5. He was concerned that this might lead to his being discharged from the army at some stage, although he had intended to stay in the army until he was 60.

38. The learned High Court judge’s findings as to the effect on the plaintiff of his hearing loss were as follows:-

39. It should also be noted that the lower the frequencies selected, the lower the low fence should be.

40. The Green Book provides a formula for the assessment of hearing loss which is as follows. The hearing threshold levels at 500 Hz, 1000 Hz, 2000 Hz and 4,000 Hz are added together and then divided by four. This is done separately for the right and left ear. 20 dB - “the low fence level” - is then deducted from the average obtained for each year, to give the average hearing loss. Because of reasons set out in the Green Book, the average hearing loss of each ear must then be multiplied by 1.25 and a further adjustment made to reflect the fact that the hearing in one ear is normally better than in the other.

41. There is then an adjustment, according to tables set out in the book, for ARHL beyond the age of 69 years in males and 77 years in females.

42. A table is set out in the Green Book (p.9) which indicates in percentage terms the disability represented by hearing falling below a number of specified thresholds measured in decibels. This table, which is of considerable assistance in understanding the issues arising in the case, is reproduced in Appendix C to this judgment.

43. The figure resulting from these calculations is the hearing disability in both ears now being suffered by the person concerned expressed in percentage term: what is called in the Green Book the Binaural Percentage Hearing Disability. In the case of the plaintiff, the agreed evidence is that it is 7% together with an additional figure of 2% in respect of tinnitus.

44. That figure, however, makes no allowance for the degree of hearing disability which the plaintiff will suffer from age 60 onwards and which is solely attributable to NIHL. The evidence of the experts in this case was that the effect on hearing of ARHL and NIHL are additive. However, the total effects of ARHL and NIHL are less than the sum of each considered individually and, accordingly, a formula has been devised in order to ascertain the extent to which a hearing disability in a person of the plaintiffs age will be increased as a result of NIHL as distinct from ARHL. The formula is to be found in para. 5.1 of an international standard produced by the International

45. Organisation for Standardisation (“ISO”) and is referred to as ISO 1999. According to the evidence of Professor Lutman in the present case, later research has indicated that the formula as set out in ISO 1999 may require adjustment if it is not to overstate the NIHL component. Be that as it may, it was accepted on behalf of the defendants at the trial that, adopting the relevant formula, the increased disability due to NIHL at age 60 was 13% and that was the figure on which the learned High Court judge based his assessments. However, this is acknowledged now to have been erroneous. The relevant percentage figure was 4%, but the defendants have accepted that they cannot reopen the matter at this stage.

46. It should also be pointed out that, in determining the extent to which the plaintiffs disabilities will increase over the years as a result exclusively of NINE as distinct from ARNE, there are two statistical models which may be employed. One is that based on a population cohort who had been assessed as having normal hearing or, to use the scientific terminology, are a “highly screened” otologically normal population. The other is a typical “unscreened” cohort who may have had various forms of noise exposure from occupational or other causes. The second model is set out in the form of Database B in ISO 1999 and there does not appear to be any serious dispute that it was the appropriate model to use in the present case.

47. The principal issue in this case, both in the High Court and in this court, was as to the amount of general damages to which the plaintiff was entitled under the two headings of “general damages to date” and “general damages for the future”. As already noted, the plaintiff was also awarded the sum of £10,000 in respect of loss of earnings for the future, which was also the subject of an appeal.

48. In his judgment in Synnott v. Quinnsworth [1984] ILRM 523 , O’Higgins CJ said at p.531:-

49. The plaintiff in the present case is, accordingly, entitled to be fairly compensated in accordance with those criteria for the hearing disability from which he undoubtedly suffers as a result of the defendants’ admitted negligence and from which he will continue to suffer. At the same time, the compensation to which he is entitled must bear a reasonable proportion to the circumstances

50. In the hearing disability cases, there is a similar spectrum. At one end of the scale, there is a reduction in the ability to hear which is technically a “disability” within the parameters identified in the Green Book but of which the person concerned may not even be aware. At the other end of the scale there is total deafness. In between, there is a range of moderate to serious hearing impairments within which the present case falls. Although deafness has notoriously not attracted the same degree of sympathy as other forms of disability, the consequences for the person concerned, in terms both of his capacity to enjoy life and to obtain employment, must not be underestimated.

51. In assessing the amount of compensation in cases of loss of hearing, the court’s task is, in one respect, simpler than in other cases. As the necessarily simplified and abbreviated summary of the state of scientific knowledge I have attempted indicates, it is possible to measure the degree of disability concerned in relatively precise terms. The contrast with a case in which the court is required to assess the effects of pain and suffering resulting from fractured or amputated limbs or serious damage to the central nervous system is obvious.

52. It is in the light of these considerations that the provisions of the Act fall to be considered. Section 4 provides that:-

53. Part 1 of the Schedule then sets out the calculation for the assessment of binaural percentage hearing disability to which I have already referred. It goes on as follows:-