Byrne v Minister for Defence

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 26 April 2005
• Neutral Citation: [2005] IEHC 147
• Court: High Court
• Docket Number: [1998 No. 2799 P]
• Date: 26 April 2005

BYRNE v MIN FOR DEFENCE & ORS

Between:

Padraig Byrne

Plaintiff

And

The Minister for Defence, Ireland and the Attorney General

Defendants

[2005] IEHC 147

Record Number: No. 2799P/1998

THE HIGH COURT

PRACTICE AND PROCEDURE

Delay

Pre-commencement of proceedings - Personal injuries - Inherent jurisdiction of court - Whether delay of over 20 years between alleged acts complained of and commencement of proceedings inordinate and inexcusable - Whether prejudice suffered by defendant by reason of lapse of time - Whether public interest overrides right of reasonable access to courts - Kelly v O'Leary [2001] 2 IR 526 and MacH (J) v M(J) [2004] IEHC 112; [2004] 3 IR. 385 considered - Claim dismissed (1998/2799P - Peart J - 26/4/2005) [2005] IEHC 147 - Byrne v Minister for Defence

STATUTE OF LIMITATION 1957

KELLY v O'LEARY 2001 2 IR 526

MACH (J) v M (J) & ORS 2004 3 IR 385

1 Judgment of Mr Justice Michael Peart delivered on the 26th day of April 2005:

2 The plaintiff joined the armed forces in August 1974 when he was seventeen years of age, and served for three years until 1977. During that time he was exposed to noise from rifles, mortars and machine guns. He states that his exposure to rifle fire and machine gun fire was on a weekly basis during these years, whereas exposure to noise from mortars might been only a couple of times per year.

3 He also stated that during his time in the army he spent about one year on border duty, during which time he endured what he described as "horrendous noise" from within Armoured Patrol Vehicles while on patrol. It appears that when inside such vehicles personnel are located in the immediate vicinity of the engine of the vehicle, which is very noisy.

4 He stated in evidence that at no time during this exposure to noise was he provided with ear protection.

5 Following his discharge from the army he was unemployed for a period of about ten months, and thereafter obtained employment with a packaging company. His work there was in what was described as a factory environment. He is and has always been provided with ear muffs and/or ear plugs, and he has always worn the protection provided, except at times when he would be working in a part of that premises where there is no machinery.

6 Prior to his time in the army he had no trouble with his hearing and he stated in evidence that while he might have experienced some ringing in his ears for an hour or so after firing weapons, he did not develop a hearing difficulty as such until about 1998. At that point it appears that he started to notice a difficulty hearing when in a group of people, or when watching television on his own he might often have to put his hand to his ear to hear properly. This difficulty was stated to exist only in his right ear. He described that if he covers his left ear completely he cannot hear in his right ear and this distresses him greatly. However under cross-examination, he stated that he had been aware of some hearing difficulties for perhaps twenty years but that it had only gradually got to a stage where he thought to try and do something about it.

7 He believes that what started off as a ringing noise in his right ear when he came off the firing ranges when he was in the army, has now developed into the present complaint of tinnitus in that same ear. It was however pointed out to him in cross-examination, and this was confirmed by Mr Dougan when he gave evidence on behalf of the plaintiff, that a person who fires from the right shoulder will suffer difficulties in the left ear and vice versa. Nevertheless the plaintiff still believes that it was noise from gunfire between 1974 and 1977 which is the cause.

8 The plaintiff accepted that even though he had been aware of some hearing difficulty in the years following his leaving the army, he did nothing about it. He explained that when one is young you tend to put these matters to the back of the mind. But he said that it got very gradually worse, and when all the publicity started about claims for hearing loss by members of the army he went to his solicitor and it was his solicitor who sent him to Dr H.S.Jones for a test. He had never attended a doctor prior to that for investigation or treatment. It was forcefully put to him by Mr Clarke that he went to his solicitor in order simply to seek compensation rather than to get any treatment, but the plaintiff was adamant that he went in order to see what could be done about the hearing problem which he has. The plaintiff also made the point that he is not the sort of person who goes to the doctor very often, and that it was not in his nature to do so.

9 In relation to tinnitus, he said that this is a constant difficulty. He experiences a constant hollow ringing noise, and sometimes has difficulty with his balance. It has got worse in the last few years and has levelled off now. It apparently is not sufficient to cause him not to get to sleep though. He has apparently decided in recent times to go and find out if anything can be done about this problem, and he stated in his evidence that in fact he had an appointment for about a month hence at Tallaght Hospital. However, the Court has received no medical report in relation to the results of any examinations carried out to date, and none has been furnished to the defendants in these proceedings.

10 He also gave evidence of getting matters investigated at the present time in Tallaght Hospital. He states that he has been told that he has a severe problem with his right ear. Mr Clarke, quite rightly in my view, pointed to the fact that the defendants had not been given the benefit of sight of any report dealing with these investigations, and I shall return to that. But the plaintiff stated to Mr Clarke in cross-examination that he had sought the advice of Tallaght Hospital because he had developed a tendency to lose his balance. Even though Mr Clarke suggested that the loss of balance might be caused by a quite different type of ear problem, the plaintiff remains convinced that it results from his exposure to firearms fire between 1974 and 1977. This loss of balance commenced about seven years ago in 1998, and he commenced going to Tallaght Hospital about it about three years ago.

11 Mr Dougan gave evidence which is relevant to the claim for tinnitus, as well as hearing loss, and I will deal with it now. He was asked about the evidence given by the plaintiff that he was being seen at Tallaght Hospital in relation to loss of balance. Mr Dougan stated that loss of balance, dizziness and tinnitus can be reasonably attributable to the plaintiff suffering from Menieurs Disease. He also opined that low tone hearing loss, which is what the audiograms in this case has disclosed, can indicate an inner ear problem. He expressed the view at one point of his cross-examination that it was a probability that the plaintiff's difficulties resulted from an inner ear disease, and agreed that losing balance, hearing loss and tinnitus were all symptoms of Menieurs Disease. However, at a later stage of his evidence, he stated that the plaintiff was without doubt exposed to levels of noise above 160 dbs, and that this was a huge factor in the case of the plaintiff as opposed to somebody who had not been so exposed. I take this to mean that while the symptoms of Menieurs Disease could include an element of hearing loss, the fact that the plaintiff was exposed, albeit so long ago, to noise levels in excess of 160dbs means that it is probable that this exposure would have caused the hearing loss, such as it is, in the case of the plaintiff, even if he has other symptoms pointing to Menieurs Disease.

12 Mr Dougan stated that the hearing loss, as opposed to tinnitus, which was disclosed in the audiograms was mild to moderate. He said it was very slight. He used the phrase "mild to moderate" to describe the level of loss. He also felt that the plaintiff was in fact confusing hearing loss and tinnitus in his mind, and that whereas the tinnitus may be significant, his hearing loss was only mild and that it taken alone should not impact that much on his life.

Delay:

13 Gerard Clarke SC on behalf of the defendants...