Hanley v Minister for Defence

• Jurisdiction: Ireland
• Judge: Keane, J.
• Judgment Date: 01 January 2000
• Neutral Citation: [1999] IESC 86
• Court: Supreme Court
• Docket Number: [S.C. No. 237 of 1998],237/98
• Date: 01 January 2000

[1999] IESC 86

THE SUPREME COURT

Hamilton, CJ,

Denham, J.

Keane, J.

Murphy, J.

Lynch, J.

237/98

Between

Kevin Hanley

Plaintiff/Respondent

and

The Minister for Defence, Ireland and The Attorney General

Defendants/Respondents

Abstract:

Personal injury - Army deafness - Test case - Green Book - Quantum - General damages - High Court Scale - State Scale - Appropriate method of measuring present hearing disability - Appropriate method of measuring future hearing disability - Appropriate basic unit for each percentile of disability - Whether basic unit in High Court Scale too high - Whether Green Book can be departed from - Civil Liability (Assessment of Hearing Injury) Act 1998 (No 12).

Digest

The Court was satisfied that the High Court Scale being applied in cases where hearing disability was being assessed could lead to excessive awards for relatively minor disability and that the submitted State Scale, (as amended), was a more appropriate barometer. The Supreme Court so held in dismissing the appeal and further saying that the Green Book should not be applied rigidly if there was a risk of injustice.

1 JUDGMENT delivered the 7th day of December, 1999 by Keane, J.

2 Introduction

3 The plaintiff is an army private who lives in Limerick and was born on the 24th April 1963. He joined the army in 1980 and was still in the army when the case was heard in the High Court. It is accepted on behalf of the defendants that, during the course of his army career, he was exposed to excessive noise from the discharge of weapons and that they were negligent and in breach of their duty to him in failing to provide him with any form of ear protection. As a result, the plaintiff suffered, and will continue, to suffer, from a hearing loss and tinnitus. The action having come on for hearing in the High Court before Johnson J as an assessment of damages only, he was awarded the sum of £50,575 made up as follows:-

General damages to date	£24,750
General damages for the future	£15,825
Loss of earnings for the future	£10,000

4 The defendants now appeal to this court on the grounds that each of the sums awarded is excessive and/or contrary to the evidence.

5 The claim in this case is one of a huge number of similar claims made by members of the defence forces, some of which have already been heard in the High Court and, in some instances, have been the subject of appeals to this court.

6 With a view to establishing criteria for the assessment of hearing disability, an expert group was established by the Minister for Health and Children in November 1997. The expert group presented their report entitled “Hearing Disability Assessment” to the Minister in 1998. It has since become known as, and will be referred to in this judgment as, "the Green Book". On the 12th May 1998, the Civil Liability (Assessment of Hearing Injury) Act 1998 (hereafter "the Act") become law. The provisions of the Act are referred to in more detail at a later stage: at this point, it is sufficient to note that they inter alia require the courts, in all proceedings where damages are claimed for personal injury arising from hearing loss, to have regard to certain parts of the Green Book. The Act and the Green Book were considered by the High Court (Lavan J) in Green v. The Minister for Defence & Ors. ( unreported; Supreme Court, 3rd June, 1998) and it will also be necessary to refer to that judgment in more detail at a later stage.

7 The Act, although requiring the courts to have regard to certain parts of the Green Book, did not prescribe any formula for translating the degree of hearing disability established in any case into monetary compensation. From his experience in dealing with many of these cases, the learned High Court judge had concluded that it was desirable that there should be established, so far as practical, a formula for translating hearing disability assessed by reference to the Green Book into such compensation. Having heard evidence from a number of experts called on behalf of both the plaintiff and the defendants, in a written judgment delivered on the 31st July 1998 he calculated the damages to which he considered the plaintiff entitled in accordance with a formula set out in the form of a scale at the end of the judgment.

8 During the hearing of the appeal, at the request of the court, the defendants furnished a scale which, in their submission, was more appropriate than that adopted by the learned High Court judge. The two scales are respectively referred to in this judgment as "the High Court Scale" and "the State Scale" and are set out in Appendices A and B to this judgment.

The plaintiffs injuries

9 The plaintiff joined the army in 1980 when he was 17 or 18 years old. He said that from the beginning of his career he noticed that when he came from the firing range, there was a buzzing in his ears, but that he did not take any notice of it because it was regarded as "a normal thing" amongst soldiers. The buzzing would last for a couple of hours after the range practice and then go away. In the three of four years prior to the hearing, he had noticed that this buzzing, which he now knew to be correctly described as tinnitus, was increasing and that he had it now about three or four times a week. In 1995 he was referred for an audiogramme, an accepted method of determining hearing loss. It was clear from this audiogramme that the plaintiff had suffered a hearing loss, the extent of which will be discussed in greater detail at a later stage.

10 The plaintiff said that the effect of this hearing loss was that, when he was in a group of people, he found it difficult to hear and understand what people were saying. While listening to the radio or watching television, he had to have the volume turned up, which was a natural source of irritation to his family. He also thought that this affected his social life, since he had to keep asking his wife to tell him what people were saying to him.

11 The plaintiff said that until recently his duties involved him working as a waiter in the officers' mess. He found that, as a result of the background noise during functions in the mess, he had to ask people to repeat their orders or requests and that he found this embarrassing. As a result, he gave up that particular job after about two years.

12 The plaintiff said that in quiet surroundings, talking to a single person, he was able to communicate quite well. He could also conduct telephone conversations in a normal fashion, except that he would have to close the doors or lower the volume on the television. He would also on occasions fail to hear the telephone or the doorbell ring.

13 The plaintiff said that, as a result of the hearing loss disclosed by the audiogramme, he had been reduced from grade 1 to grade 5. He was concerned that this might lead to his being discharged from the army at some stage, although he had intended to stay in the army until he was 60.

14 The learned High Court judge's findings as to the effect on the plaintiff of his hearing loss were as follows

"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 downgraded 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...

"[The plaintiff] has indicated he wants to spend the remainder of his career [in the army] and of course if he can then all is well. I have asked the parties if it were possible for me to make an award for damages which would not be implemented unless he lost his position in the army through loss of hearing but it was indicated by the parties that this was not in my power to do.

"...I have stated above, I have been assisted by Commandant Loftus' evidence that this eventuality is unlikely to occur and that he will not lose his position in the army.

"However, I am satisfied that on the balance of probabilities his opportunities for serving in the Lebanon will be reduced and indeed for promotion and other additional duties...

"...I intend to allow a sum of £10,000 in respect of this to be added to the damages already given."

The scientific assessment of hearing disability

15 Hearing impairment or hearing loss can take a number of forms. They can be divided, however, into three main categories, sensorineural hearing loss, conductive hearing loss and mixed hearing loss, the third being a combination of sensorineural and conductive hearing loss.

16 Sensorineural hearing loss is usually irreversible and permanent. It can be caused by a number of factors, including the ageing process and noise. Conductive hearing loss is of mechanical origin and can be rectified by surgery. In a case such as the present, accordingly, one is concerned solely with sensorineural hearing loss.

17 That form of loss affects the cochlea or auditory nerves in the ear. There are, at the outset, 23,000 microscopic hair cells inside the cochlea which detect the presence of sound vibrations and send the appropriate electrical information to the brain. However, both the hair cells and the attached nerves degenerate with the passage of time, the process known as "Age Related Hearing Loss" (ARHL). It is also sometimes referred to as "presbyacusis", but under that description is more properly confined to the elderly. Age related hearing loss in fact begins as early as the second decade of life.

18 Noise Induced Hearing Loss (MHL) is due to loss of hair cells in the cochlea. The damage can be caused by...