Flood v. Minister for Defence [1998] IEHC 163 (16th November, 1998)

JUDGMENT of Mr. Justice Diarmuid B. O'Donovan delivered on the 16th day of November, . 1. This Plaintiff is a 46 year old married man with three children who resides at Swords in the County Dublin. He enlisted in the Irish Army in the year 1977 and was a serving soldier until the month of July of this year when he retired from the Army on the grounds, as he said in evidence and it was not disputed by the Defence, that, on account of ongoing problems with his hearing, he was not permitted to shoot or to participate in a range of military duties to the extent that he no longer felt that he was a soldier. Indeed, he told me and I accept that, in the months prior to his leaving the Army, he was assigned very menial work which had nothing to do with being a soldier. 2. It is common case that, during his period of service in the Army and up to the time that he was forbidden to participate in range practice in the year 1994, the Plaintiff had been exposed to the noise of gunfire from a variety of weaponry and that, although that noise was excessive, he was never provided with any adequate protection for his hearing. As a result of that exposure, Mr. Flood complains that he has suffered a noise-induced hearing loss and tinnitus in respect of which he comes before the Court claiming damages. In this connection, Mr. Flood said that, from the very beginning of his Army service, he noticed that, after a period on the rifle range, he would experience a ringing in his ears which persisted for a few hours and then went away. However, by the year 1994, that ringing in his ears was and still is a constant companion and that it is worse during the quiet of night to the extent that it affects his sleep pattern. In addition, Mr. Flood gave evidence that, from 1994 onwards, his wife has been roaring at him in order to attract his attention, that she complains that he plays the television too loud and also that her friends consider him to be an ignorant man because he appears to ignore them. He said that, if he ignored his wife's friends, it was because he could not hear them and he is embarrassed on that account. He also said that he notices that he keeps saying "what" when people speak to him and that he had particular problems conversing with passengers in a hackney car, which he took up driving after he left the Army. In this regard, he said that he was unable to converse with passengers, if there was a radio on in his car, and that he also had problems conversing in crowded situations, such as a public house, and that he had problems at home hearing the doorbell and the telephone. He said that his hearing problems has got progressively worse over the years and that his wife and children were complaining more and more with the passage of time. As he put it, "we do not talk to each other at home, we all roar in our house" . Under cross-examination, it was suggested to Mr. Flood that, in the light of the results of several audiogram tests which he had undergone in recent years, it was clear that he was exaggerating his hearing problems and, in particular, Counsel for the Defence, Mr. Ryan, pointed out to him that even though he (Mr. Ryan) was speaking in a very low voice, the Plaintiff did not appear to have any difficulty in hearing him. Mr. Flood countered by saying that he was able to lip read. In this regard, however, the Plaintiff did not appear to have any difficulty in hearing what I said to him, even though I spoke in a low voice and was not facing him so that he could not have been reading my lips. Accordingly, I am inclined to think that he was, indeed, exaggerating his hearing problems. That as it may be, however, I do not for a minute doubt but that he does suffer from tinnitus and that he does experience hearing problems of the type described by him although not, perhaps, to the extent which he suggests. Nevertheless, I am satisfied that he did leave the Army because of loss of job satisfaction due to his no longer being able to shoot or engage in military duties. I am also satisfied he has problems conversing with passengers when he drives a hackney car. On the other hand, Mr. Flood told me that he had been tested with a hearing aid by a Ms. Nugent who, apparently, is an audiologist and that he found the use of that aid to be very beneficial to his hearing and that, if and when he could afford one, he would undoubtedly purchase it. In this regard, I had evidence from a Mr. Dermot Doogan, who is a audiologist, that a sophisticated hearing aid could well improve the Plaintiff's hearing. 3. Mr. George Fennell, an E. N. T. consultant, gave evidence that he examined the Plaintiff on the 23rd March, 1995 and did an audiogram on him as a result of which he was satisfied that Mr. Flood suffered from a high tone noise-induced deafness; worse in the left ear than in the right. Mr. Fennell also gave evidence that he had seen an audiogram carried out on the Plaintiff by Ms. Nugent on the 2nd December, 1997 which confirmed his findings. He said that, as a result, Mr. Flood had significant hearing problems; particularly in his left ear. He agreed that the problems of which the Plaintiff complained in the witness box were consistent with the results of the audiogram tests. Moreover, he said that Mr. Flood's hearing problems would get worse with the passage of time, that he would always have hearing difficulties when there was a background of noise and that he would have problems conversing with passengers when driving a hackney car. On the other hand, Mr. Fennell agreed that a hearing aid of the type with which Ms. Nugent had tested the Plaintiff would be of considerable benefit to his hearing. On cross-examination, Mr. Fennell was shown the results of an audiogram test carried out by a Mr. Blayney, an E. N. T. surgeon, who examined the Plaintiff on behalf of the Defence. Mr. Fennell agreed that, while the results of that test were very similar to the results of the audiogram carried out by Ms. Nugent, the results of Ms. Nugent's audiogram were marginally worse insofar as the Plaintiff is concerned. Mr. Fennell explained this discrepancy by pointing out that the audiogram test carried out by Mr. Blayney had been carried out two years prior to that of Ms. Nugent and that the Plaintiff's hearing would have deteriorated in the meantime, as he himself said it had. On further cross-examination, Mr. Fennell said he did not accept the American, A. M. A. method of assessing hearing disability and neither did he approve of the formula provided for in the Green Book. Indeed, he said that, insofar as Mr. Flood was concerned, the fact that his hearing loss at the 6000 Hz. and 8000 Hz. level were excluded from the formula for determining hearing disability provided for in the Green Book gave a misleading impression of the true extent of his hearing disability. As I have already pointed out, I also heard evidence from Mr. Dermot Doogan, an audiologist, and he told me that, applying the Green Book formula to the audiogram of the Plaintiff carried out by Ms. Nugent on the 2nd December, 1997, the Plaintiff's hearing disability would be 2.81% and applying the formula for determining the cumulative effect of the Plaintiff's noise-induced hearing loss and his age-related hearing loss when he attained 62 years, using the formula in international standard ISO 1999 would be 11.61%. In reply to a specific question in that behalf from me, Mr. Doogan said that, based on that audiogram of the 2nd December, 1997 and using the Green Book formula but excluding the Plaintiff's hearing loss at the levels 500 Hz. and 1000 Hz. and including the hearing loss at 6000 Hz. and 8000 Hz. his current hearing disability would be 35.31% but that the additive effect of age related hearing loss at age 62 would be minimal. In this regard, Mr. Doogan agreed under cross-examination that there was only one system in the world which used a hearing loss at 6000 Hz. for assessing noise-induced disability and nowhere in the world was a hearing loss at 8000 Hz. used in that regard. However, he agreed that, notwithstanding that fact, insofar as the Plaintiff was concerned, his hearing loss at the ranges 6000 Hz. and 8000 Hz. and, particularly, that at 6000 Hz. could significantly affect his quality of life. I had no difficulty in accepting Mr. Doogan's evidence in that regard. Under further cross-examination, Mr. Doogan said that, using the Green Book formula, the Plaintiff's hearing disability based on the audiogram test of Mr. Blayney dated the 13th January, 1996 would be approximately 0.63% and, although Mr. Doogan did not make that calculation, I was advised that the cumulative effect of that disability with the Plaintiff's natural age-related hearing loss at age 60 would be 2.07%. In this regard, Mr. Doogan agreed that, while it would be pure conjecture to suggest, on the basis of the two audiograms to which reference had been made, that Mr. Flood's hearing had deteriorated over the years, he thought that, on the evidence of the one which was later in time, it was more likely that his hearing had got worse; particularly, if I accepted the Plaintiff's evidence in that regard, and I was inclined to accept that evidence. Accordingly, for the purpose of assessing the Plaintiff's damages, I preferred the results of Ms. Nugent's audiogram. 4. In the course of the foregoing, I have referred to the Green Book which, as everyone associated with these type of cases knows, is the report referred to in the Civil Liability (Assessment of Hearing Injury) Act, 1998 in respect of which judicial notice is required to be taken when assessing damages for a hearing loss. Since the introduction of that Act, a number of judges, in particular Mr. Justice Vivian Lavan and Mr. Justice Richard Johnson, in the course of judgments given in cases involving claims for damages for hearing loss, have accepted that the formula for assessing hearing loss in the Green Book is a fair and adequate means of measuring disability for hearing loss and should be followed by the Courts unless there are good reasons for not so doing. As I have indicated on previous occasions, I respectfully agree with that view. However, like Mr. Justice Johnson in the course of a judgment which he delivered on the 21st July of this year in a case of Hanley v. The Minister for Defence, Ireland and the Attorney General , I would also endorse the views of Mr. Justice Barron given in November 1995 in an unreported judgment in a case of Bastick v. The Minister for Defence in which he held that the effect of a hearing loss on a victim's quality of life must also be considered. I think that that decision is very relevant to the circumstances of this case because, accepting as I do, that Mr. Flood's decision to retire from the Army was provoked by the fact that, because of his hearing problems, he was being assigned menial tasks which were in no way related to the work of a soldier, his quality of life has undoubtedly been detrimentally affected and I am satisfied that I must take that fact into account in assessing his damages. 5. Apart from the foregoing, as neither party took issue with it, I propose to follow the approach of Mr. Justice Johnson in the Hanley case with regard to the measurement of compensation per degree of established disability. In those circumstances, I will assess damages as follows:- 6. For current hearing disability calculated in accordance with the formula in the Green Book based on the results of the audiogram test carried out by Ms. Nugent on the 2nd December, 1997, i.e. 2.81% = £6,182. 7. For the cumulative effect of the Plaintiff's hearing disability arising from noise-induced hearing loss and age related hearing loss at age 62 using international standard ISO 1999, i.e. 11.61% = 9% @ £1,500, i.e. £13,500 and 2.61% @ £3,000, i.e. £7,830; a total of £21,330. However, I am advised that, calculated actuarially, the current value of £1 for this Plaintiff at age 62 is 0.57p and, therefore, that figure of £21,330 falls to be reduced to a sum of £12,158. 8. I am satisfied by the medical evidence which I have heard that the use of a hearing aid will be very beneficial to this Plaintiff's hearing and I accept his own evidence that, if and when he can afford to do so, will purchase such an aid. In this connection, it would appear from the evidence of Mr. Doogan that the capital cost of purchasing an appropriate aid is £1,000 per aid per ear, that the average hearing aid will have a life span of 5 years and that the annual cost of servicing and purchasing batteries is £125 per annum. Accordingly, I calculate that the annual cost of purchasing, servicing and supplying a hearing aid with batteries is £525, or £10 per week. I have also been advised that the capital value loss of £1 per week for this Plaintiff for the rest of his life is £1,300 and, therefore, I will allow him a sum of £13,000 in respect of the cost of purchasing, replacing, servicing and providing for batteries for his hearing aids for the rest of his life. 9. It has been agreed by the parties that the extent of the Plaintiff's tinnitus in accordance with the provisions in that behalf in the Green Book is 2%, therefore, I will allow him a sum of £4,400 in respect of tinnitus. 10. Finally, I come to the question of the Plaintiff's loss of quality of life. In this connection, I think that it is very sad that a man, who has obviously made the Army his career, is forced to abandon that career because, due to his hearing problems, he has been assigned duties which are very different from the type of duties which a soldier might expect to undertake. I have great sympathy for Mr. Flood on that account and I propose to allow him a sum of £10,000 in respect of loss of quality of life. 11. Having regard to the foregoing, there will be judgment for £45,730. © 1998 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII