Greene v Minister for Defence

• Jurisdiction: Ireland
• Judge: Mr. Justice Lavan
• Judgment Date: 03 June 1998
• Neutral Citation: [1998] IEHC 88
• Court: High Court
• Docket Number: [1995
• Date: 03 June 1998

[1998] IEHC 88

THE HIGH COURT

No. 1655p/1995

GREENE v. MIN FOR DEFENCE

BETWEEN

JAMES GREENE

PLAINTIFF

AND

THE MINISTER FOR DEFENCE, IRELAND & THE ATTORNEY GENERAL

DEFENDANTS

Citations:

GARDINER V MIN FOR DEFENCE & AG UNREP JOHNSON 13.3.1998

WHITE IRISH LAW OF DAMAGES (1989)

HORGAN V CORK CO COUNCIL UNREP SUPREME 22.4.1982 (WHITE ON DAMAGES V2 576)

OCHWAT V BURTON UNREP SMITH QBD 26.6.1997

BERRY V STONE MANGANESE & MARINE LTD 1972 1 LLOYDS REP 182

MCGUINNESS V KIRKSTAL FORGE LTD UNREP HODGSON (1978)

THOMPSON V SMITH SHIP REPAIRERS (NORTH SHIELDS) LTD 1984 1 QB 405

FACTORIES ACT 1955

FACTORIES (NOISE) REGS 1975 SI 235/1975

EUROPEAN COMMUNITIES (PROTECTION OF WORKERS) (EXPOSURE TO NOISE) REGS 1990 SI 157/1990

EEC DIR 86/188

BASTICK V MIN FOR DEFENCE UNREP BARRON 24.11.1995

CIVIL LIABILITY (ASSESSMENT OF HEARING INJURY) ACT 1998 S3

CIVIL LIABILITY (ASSESSMENT OF HEARING INJURY) ACT 1998 S4

R V POLICE COMPLAINTS BOARD EX PARTE MADDEN & RHONE 1983 2 AER 353

ISHAK V TWOWFEEK 1968 1 WLR 1718

R V D (C) 1976 1 NZLR 436

CIVIL LIABILITY (ASSESSMENT OF HEARING INJURY) ACT 1998 S4(2)

CIVIL LIABILITY (ASSESSMENT OF HEARING INJURY) ACT 1998 S1

MAHER V AG 1973 IR 140

Synopsis

- [1998] 4 IR 464

1 Judgment of Mr. Justice Lavan delivered the 3rd day of June, 1998.

2 This case is one of a considerable number of actions maintained by serving and retired members of the Permanent Defence Forces claiming compensation for noise induced hearing loss and/or tinnitus. Johnson J. in Gardiner -v- The Minister for Defence, Ireland & the Attorney General, (unreported) refers to the Dail Committee dealing with this matter as stating that 1,488 cases of this type have been dealt with to date. Of these 1,405 have been settled without admission of liability. Of the balance, namely 83 cases, 51 were either withdrawn or dismissed. He therefore concluded that an award appeared to have been made in only 32 of those case. He also notes that of those 32 cases no appeal was taken to the Supreme Court which was pursued to a judgment. I think it is fair to say that in Ireland actions for noise induced hearing loss and/or tinnitus were quite rare until the early 1990's. I note from Dr. White's "Irish Law of Damages" published in 1989 that there is in fact only ??? Supreme Court decision, namely, that of Horgan -v- Cork County Council, ( unreported) 22nd April, 1982 in which a hearing injury was considered.

3 I think it is of some interest to draw a comparative assessment of what occurred in the United Kingdom. In the case of Ochwat & Anor, -v- Watson Burton, (unreported) Queen Bench Division dated the 26th June, 1997 Smith J. gives a most informative and incisive history of noise deafness litigation and the development of compensation schemes in the United Kingdom. Concerning that history he has this to say:-

"It has been known in medical circles for at least 150 years that exposure to loud noise can damage the hearing. In the early 20th Century some attempts were made to provide ear protectors to mitigate the affect of noise on the hearing of men exposed but there was very little progress. After the Second World War there was an increased medical and industrial interest in noise induced deafness and this provided an interest to the development of ear protectors. During the 1950's several forms of protection became commercially available. Interest and public discussion increased and in 1963 the Ministry of Labour published a pamphlet entitled "Noise and the Worker" which explained the risks of noise exposure and provided advice on noise reduction and the use of ear protectors. In 1972 the United Kingdom Government published a Code of Practice which provided more detailed guidance to employers at the measurement of its noise, its reduction and the protection of their workers."

4 In that same year came the first report of a claim for damages for noise induced deafness: Berry -v- Stone Managanese & Marine Limited, (1972) I Lloyds Report. The plaintiff alleged exposure to harmful noise; the defendants denied liability but did not seek to argue that there was any date before which they could not have been expected to appreciate the risk of harm. The Judge found for the plaintiff and awarded damages of £2,500 as the appropriate award for the whole of the plaintiff's hearing disability due to noise.

5 During the next few years a trickle of cases went through the Courts, contested only a to the quantum of damage. In retrospect, this was surprising because, of the thousands of men who were then suffering from noise induced deafness and were coming forward in large numbers to claim damages, a very large proportion must have been exposed to noise during the 1930's, 1940's and 1950's. It was not until 1978 and the hearing of McGuinness -v- Kirkstal Forge Limited, (unreported) that an employer contended that he was not liable for any damage caused before the date on which he ought as a reasonable employer to have appreciated the risks of noise damage and to have done something to protect his workers. In McGuinness. Hodgsor J. held that it was not until the publication of "Noise and the Worker" in 1963 that an employer in the engineering industry ought to have had that knowledge. In the event he also found that the plaintiff's hearing loss had not been caused by exposure to noise but was of constitutional origin. Thus no damage fell to be awarded and the Judge did not have to grapple with the problem of how to asses damages for that part of the hearing disability caused by the post-1963 exposure.

6 However, the legal profession, insurers and Trades Unions had to grapple with the problem. It was hoped that a plaintiff would not recover for that part of the damage which had been caused before the date of guilty knowledge, which for most employers was assumed to be 1963. It was realised that there would be many thousands of noise-deafness claims to be dealt with during the next few years. These would be complex, time consuming and expensive. The Iron Trades Employers Mutual Insurance Association Limited (the Iron Trades) who ensured many employer in the heavy engineering industry entered into an agreement with the Amalgamated Society of Boiler Makers, Ship-rights, Blacksmiths and Structural Workers, (the Boiler Makers Union) whereby the insurers would pay compensation according to an agreed scale. The first such agreement came into effect in January of 1980 and was renewed with some amendment in February 1981.

7 In September 1982 the Boiler Makers Union became dissatisfied with the scheme and withdrew. There was a perception that plaintiffs would do better by going to Court than by settling under the scheme. A group of cases was prepared for trial and battle was joined in Newcastle before Mustill J. (as he then was) in Autumn 1983. The case was reported as Thompson -v- Smith Ship Repairers (North Shields) Limited, (1984) 1 Q.B. at 405, (1984) 1 All E.R. at 881. The plaintiffs were fitters and labourers who had worked in various ship yards in the north-east for many years, some going back into the 1930's. They were suffering from varying degrees of noise-induced hearing loss and tinnitus. Mustill J. found that the employer's date of guilty knowledge was 1963. Much of each plaintiffs hearing loss had been caused before then and he was only to be compensated for the increase in his disability which could be attributed to the negligent exposure between the date of guilty knowledge and the date on which ear protectors had first been provided.

8 Mustill J. referred to the fact that it was not until the early 1970's that any effective and systematic provision was made for the protection of persons employed in ship yards, although they had long been recognised as noisy places. Mustill J. stated that terms such as "deafness, hearing loss and damage to hearing" were "not sufficiently precise" for assessing the harm done, the extent thereof and the appropriate compensation. He therefore decided to adopt the terminology proposed in the "Blue Book",approved by the Councils of the British Association of Otalaryngologists and the British Society of Audiology. These definitions are contained in page 413 of his judgment.

9 Mustill J. described the different methods of assessing hearing loss and in particular the technique used in schemes to compensate large numbers of sufferers. This technique was to use and average of 0.5, 1 and 2 Khz. A system known as the Coles/Worgan scheme was then devised, which took account of an average of 4 Khz, in addition to the lower frequencies. Other averages were also adopted in the United Kingdom, including the Department of Health and Social Security. Mustill J. refered to recent opinions which favoured an average of 1, 2 and 4 Khz, and formed the basis of the Blue Book. He felt it Unnecessary to decide which of these methods was preferable.

10 Mustill J. determined that there was direct evidence that the defendants had actual knowledge of the risks from 1963 onwards, when they received the report of the Ministry of Labour, "Noise and the Worker". However actual knowledge could be inferred much earlier than 1963.

11 The problem according to Mustill J. was identifying the date at which a reasonable employer would have recognised the risk of excessive noise in his premises, found a solution, adopted a solution, and put it into effect. He adopted 1963, the date of publication of the "Noise and the Worker" report, as the dividing line.

12 Mustill J. was referred to a report of 1970 entitled "Hearing and Noise in the Industry", by W. Burns and D.W. Robinson, which formed the basis for a set of "Tables for the Estimation of Noise-induced Hearing Loss" (the "N.P.L. Tables"), a report of the National Physical Laboratory Acoustics of June 1977. The formula adopted therein is described at pages 425 to 426 of his judgment. The plaintiffs argued...