Hanley v Minister for Defence

• Jurisdiction: Ireland
• Judge: Justice Johnson
• Judgment Date: 21 July 1998
• Neutral Citation: [1998] IEHC 118
• Date: 21 July 1998
• Court: High Court
• Docket Number: [1996 No. 5599P]

[1998] IEHC 118

THE HIGH COURT

No. 5599p/1996

HANLEY v. MIN FOR DEFENCE & ORS

BETWEEN

KEVIN HANLEY

PLAINTIFF

AND

THE MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Citations:

GREENE V MIN FOR DEFENCE UNREP LAVAN 3.6.1998

BASTICK V MIN FOR DEFENCE UNREP BARRON 24.11.1995

Synopsis

- [1998] 4 IR 496

The Green Book is a fair and reasonable means of calculating hearing disability but the formula therein merely gives a still photograph of the impairment measured in disability terms of the injured party at any given moment. The Court was not entitled to make an award of damages for possible discharge from the army and suspend its implementation until such discharge were to occur if at all. The High Court so held in awarding the plaintiff £50,575 in damages taking into account present and future disability and reduced opportunity for taking on other duties in the army.

1 Justice Johnson delivered the 21st day of July, 1998.

2 This is an army deafness case and is being treated as an assessment by the parties.

3 The Plaintiff in this case is an army private who resides in Limerick and was born on the 24th April, 1963. After some work elsewhere he joined the army in 1980 and continues in his army career up to the present moment. In the course of his career in the army he was exposed to a great deal of gunfire, including acting as a mortar-man, without any form of ear protection, until eventually at the end of the 1980's he was given a hard plastic plug. The Plaintiff has undoubtedly suffered damage and his complaints consist of the usual ones, in cases such as this, of hearing disability in noisy circumstances, and he suffers from tinnitus.

4 It is agreed between the parties that at the present moment he suffers a 7% disability under the formula as provided for in the Green Book. The Green Book which was introduced by legislation earlier this year is a method of calculating impairment in terms of percentage disability.

5 The Green Book was considered by Mr. Justice Lavan in the case of Green -v- The Minister for Defence, Ireland and the Attorney General and decided earlier this year. Mr. Justice Lavan accepted the Green Book as a fair and adequate means of measuring disability and insofar as it goes, I completely accept Mr. Justice Lavan's judgment. I support the Green Book as a measure of disability at any given point in time.

6 This view is supported by Professor Alberti and I do not think there is any great dispute about it. All formulae consist of a compromise of one form or another, and irrespective of what formula is produced there will be complaints about it. However, I have no hesitation in saying that the Green Book appears to me to be a fair and reasonable means of calculating disability.

7 However, I further think that it is correct in stating that the Green Book should be followed by all Courts unless there is a specific reason in any given case for not so doing.

8 However, the basic law of Ireland has not been changed by the Green Book or the legislation thereto attached and that is laid down by Mr. Justice Barron in Bastick -v- The Minister for Defence in November of 1995 and he in dealing with the question of the compensation for impairment resulting in negligence says:-

"The question is, is the condition of the hearing such that is affects the quality of life. It also seems to me to be important that there are not absolute standards. The other thing is if you have no handicap it does not mean your hearing is perfect."

9 I myself stated in the Gardiner case and I quote:-

"Each case must be tried individually. Each plaintiff individually assessed and the evidence of each witness individually assessed and the grounds on which each witness bases his opinion particularly the expert ones individually."

10 I am satisfied that the Plaintiff has suffered a deal of discomfort to date, has had to give up his job in the officers mess in Limerick because of his inability to hear in crowded locations. In addition I am satisfied that he has suffered a great deal of anxiety as a result of being down-graded to Grade 5 in the army, and he has deep concerns about his future in the army, in which he hopes to remain until he is 60, in case he is boarded out of the army because of hearing difficulties. The evidence of the army personnel, particularly Commandant Loftus, reduced this eventuality to at very best a possibility.

11 As I understand it from Mr. Nugent's initial submissions, the State accepts that the law as stated by Mr. Justice Barron still applies and that the Green Book is merely a method of measuring the disability as above stated.

12 However, the Green Book is not complete and there are some very serious gaps in it. The Court is obliged to take judicial notice of the Green Book and have regard to it and that is what I am doing. However, as I have stated the formula in the Green Book gives merely a still photograph of the impairment measured in disability terms of an injured party at any given moment, but in the formula there is no provision made for future deterioration caused by the combination of noise induced hearing loss and age related hearing loss. This confusion is added further to by parts of the Green Book which indicate, and I refer particularly to page 59 thereof, dealing with age related hearing correction which does not appear to me now to be accurate, having regard to the evidence which I have heard over the last two days. In addition, the figures published at Appendix 1 at page 68 setting out in detail the figures for the ageing process for otologically normal people and the variations therein contained do not appear now to be relevant.

13 The reason it is very confusing is quite simply, that when it has been attempted to be applied, the parties have been told by experts that it is inappropriate to...