Gallagher v Minister for Defence

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Higgins
• Judgment Date: 25 February 1998
• Neutral Citation: [1998] IEHC 32
• Date: 25 February 1998
• Court: High Court
• Docket Number: [1993

[1998] IEHC 32

THE HIGH COURT

No. 1511 P/1993

GALLAGHER v. MIN DEFENCE

BETWEEN

MICHAEL GALLAGHER

PLAINTIFF

AND

THE MINISTER FOR DEFENCE IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Citations:

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3(1)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(1)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(2)

HALFORD V BROOKES 1991 1 WLR 428

WHITELY V MIN FOR DEFENCE UNREP QUIRKE 10.6.1997

Synopsis

Damages

Army; hearing disability; plaintiff claiming damages for hearing loss and impairment caused by playing in army band; causation; whether exposure to excessive noise levels over a period of years in a band hall with poor acoustics caused hearing loss; whether factors should be considered other than scientific evidence of risk of hearing loss; foreseeability; whether extra curricular activities by plaintiff contributed to hearing loss; quantum of damages

Held: Damages awarded; insufficient evidence that plaintiff's extra-curricular activities contributed to hearing loss; where there is expert testimony of different audiogram tests, the best one to use is the one which demonstrates the best result (High Court : O'Higgins J 03/11/1998)- [1998] 4 IR 457

Gallagher v Minister for Defence

1 INTERIM JUDGMENT of Mr. Justice O'Higgins delivered on the 25th day of February 1998.

INTERIM RULING

2 At the end of the Plaintiff's case in this action Counsel for the Defendants contended that the claim is Statute Barred and the Court was asked to decide on this particular issue.

3 Section 3(1) of the Statue of Limitations ( Amendment) Act 1991, provides as follows:-

"An action, other than one to which Section 6 of this Act applies, claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured".

4 Section 2, sub-Section 1 of the Statue of Limitations ( Amendment) Act, 1991 provides:-

"For the purposes of provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a persons state of knowledge (whether it is the person injured or a personal representative or dependant of the person injured) and references to that persons date of knowledge or references to the date on which he first had knowledge of the following facts:-"

5 a a. That the person alleged to have been injured had been injured.

6 b b. That the injury in question was significant.

7 c c. That the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty.

8 d d. The identity of the defendant, and

9 e e. If it is alleged that the act or omission was that of a person other than the Defendant, the identity of that person and the additional facts supporting the bringing of an action against the Defendant; and knowledge that any acts or omissions did or did not, as a matter of law involve negligence, nuisance or breach of duty is irrelevant".

10 Sub-Section (2) of Section 2 provides:-

"For the purposes of this section a persons knowledge includes knowledge which he might reasonably have been expected to acquire:"

11 a a. from facts observable or ascertainable by him, or

12 b b. from facts ascertainable by him with the help of medical or other appropriate expert advice or which it is reasonable for him to seek"

13 Counsel for the Defendant argued that the date "date of knowledge" within the meaning of the Act was November of 1989, at which time Lieutenant Colonel Monaghan, an Army Doctor, told the Plaintiff that he would not be permitted to play or practice in the band hall or indoors pending examination by a Specialist. Counsel for the Plaintiff argued that the "date of knowledge"should run from March, 1990, at which time the Plaintiff was examined by such a Specialist. The action was commenced by Plenary Summons dated the 25th day of February, 1993.

14 The evidence establishes the following:-

15 • * That the Plaintiff had an audiogram in or about the month of November 1989.

16 • * That at the time of that audiogram the result or real significance of the audiogram was not explained to him.

17 • * That about a month after the audiogram he was sent for by Lieutenant Colonel Monaghan and told that his hearing was not good and that as a precaution he was not allowing him to play or practice in the band-room until he was referred to a Specialist.

18 • * That the Plaintiff understood that Colonel Monaghan was deferring to the Specialist view, which had not been yet obtained.

19 • * That the plaintiff was "shattered" at being restricted in his playing.

20 • * That the Plaintiff knew that, according to Lieutenant Colonel Monaghan, he had a noise related hearing problem.

21 • * That the Plaintiff had not personally experienced any real problem from his hearing until November, 1989.

22 • * That in November 1989 Lieutenant Colonel Monaghan told the Plaintiff that he had a hearing problem and that such problem as he had, might be related to the state of the band-hall and might be related to playing in the band.

23 In order to...