Hassett v Min for Defence and Others
| Jurisdiction | Ireland |
| Judge | Mrs. Justice Denham,Keane, J.,Lynch J. |
| Judgment Date | 07 December 1999 |
| Neutral Citation | [1999] IESC 87 |
| Docket Number | No. 114/98 |
| Court | Supreme Court |
| Date | 07 December 1999 |
[1999] IESC 87
THE SUPREME COURT
Hamilton C.J.
Denham J.
Keane J.
Murphy J.
Lynch J.
AND
HANLEY v MIN FOR DEFENCE UNREP SUPREME 7.12.1999
HANLEY v MIN FOR DEFENCE 1998 4 IR 496
CIVIL LIABILITY (ASSESSMENT OF HEARING INJURY) ACT 1998
Defence Forces
Army deafness; assessment of damages; plaintiff appealed; damages assessed by High Court in accordance with ordinary principles of law; evidence that plaintiff had not considered his hearing to be abnormal prior to undergoing audiogram; evidence that plaintiff able to perform duties as Company Sergeant without great difficulty; whether level of quantum for pain and suffering to date and into the future reflected severity of plaintiff's injury; whether trial judge misdirected herself in law and in fact in factoring capital cost of hearing aids into quantum for general damages; whether trial judge misdirected herself in law and in fact in holding that plaintiff not at loss of opportunity for promotion because of hearing loss.
Held: Appeal dismissed; damages for pain and suffering to date and into the future not disturbed; not possible to conclude that plaintiff would lose opportunity of promotion due to hearing loss.
Hassett v. Minister for Defence - Supreme Court: Hamilton C.J., Denham J., Keane J., Murphy J., Lynch J. - 07/12/99
The plaintiff had been awarded £45,110 damages as a result of hearing loss suffered while serving in the Army. The plaintiff appealed against the award arguing that the amount of damages did not adequately take into account the level of the present or future loss and suffering. There was also some disagreement as to the manner in which the future provision of hearing aids had been factored into the level of damages awarded. The Supreme Court declined to interfere with the award of the High Court holding that the findings made by the trial judge were amply supported by the evidence adduced at the trial and therefore dismissed the plaintiff’s appeal.
JUDGMENT delivered the 7th day of December 1999 byLynch J.
This is an Appeal by the Plaintiff/Appellant against a Judgment and Order of the High Court (Laffoy J.) delivered and made on the 27th January 1998 whereby the Appellant was awarded £45,110 damages in respect of noise induced hearing loss. The damages were assessed as follows:-
| Special damages (agreed) | £110.00 |
| General damages: | |
| (1) Pain and suffering to date | £10,000 |
| (2) Pain and suffering in the future | £35,000 |
| Total | £45,110 |
No issue arose on liability or causation. Accordingly the trial involved only an assessment of the damages appropriate to the noise induced hearing loss and its consequences suffered by the Appellant owing to the negligence of the Respondents. The damages were assessed in accordance with the ordinary principles of law and of course without any regard to the Civil Liability (Assessment of Hearing Injury) Act,1998, which was passed into law on the 11th May 1998 and came into operation on the 12th May 1998 some three and half months after the assessment in this case.
2 "1. The level of Quantum awarded for pain and suffering to date does not reflect the severity of the Plaintiff's injury.
2. The level of Quantum awarded for pain and suffering into the future does not reflect the severity of the Plaintiff's injury.
3. The Honourable Trial Judge misdirected herself in law and fact in factoring the capital cost of £15,880 for Hearing Aids, into the Quantum for General Damages, which said capital cost while not accepted by the Defendants was not refuted by any or any expert medical evidence or other evidence.
4. The Honourable Trial Judge misdirected herself in law and fact in holding that the Appellant was not at the loss of opportunity for promotion to Sergeant Major because of his hearing loss."
The Plaintiff was born on the 4th July 1954. He joined the Army in October 1971 at I7 years of age following a family tradition of military service. He was promoted to the rank of Corporal in October 1972 at the age of 18 years. He was promoted Acting Sergeant in 1974 at 20 years of age and full Sergeant about two years later. Thereafter he was promoted Acting Company Sergeant and finally in 1982 at the age of 28 years he was promoted full Company Sergeant which was the rank held by him at the date of trial when he was aged 43½ years.
"He has been promoted through the ranks and has served with distinction.
The Plaintiff is and always has been a career soldier. His ambition has been twofold: to remain in the army until age 60, and to reach the rank of Battalion Sergeant Major, the highest non-commissioned rank in the army."
The trial of this action was heard over a period of some eight months, commencing on the 7th and 8th May 1997, resuming on the 17th June 1997 when however no evidence was heard and concluding on the 20th January 1998 when judgment was reserved for one week. The reason for these adjournments was uncertainty as to whether the Appellant would or would not be discharged from the Army before he was 60 years of age by reason of his hearing disability. That uncertainty was ultimately resolved by the coming into force of new regulations providing for revised fitness grading of Army personnel which guaranteed that so far as the Appellant's hearing was concerned he would not be discharged from the Army before 60 years of age. As the learned Trial Judge put it:-
"As the introduction of a revised grading system for keenness of hearing was imminent the matter was adjourned pending such introduction. Under the revised Regulation 71 recently implemented the Plaintiff falls within Grade 5. Even though it is anticipated that his hearing will deteriorate with age, it is clear on the evidence, and indeed it is common case, that there is no prospect that before age 60 the combined effect of his noise induced hearing loss and the ageing process will bring him within the next grade, Grade T, with the risk of discharge from the army.
Accordingly the probability of discharge from the army for disability on account of hearing loss is no longer a factor in the case."
The learned Trial Judge then continued by describing the Appellant's hearing as follows:
"The issues which remain are, first of all, the level of the Plaintiff's hearing problem. On this issue I have the uncontested evidence of Mr F. G. Darcy, Consultant Ear, Nose and Throat Surgeon of the Royal Victoria Hospital, Belfast. Mr Darcy's conclusion, having examined the Plaintiff in October 1996 and in March 1997, was that there was evidence of hearing loss in both ears, worse at higher frequencies and worse at four kilohertz. The situation will get progressively worse with age. The results of the pure tone audiograms conducted by Mr Darcy are set out in his reports which have been admitted in evidence, and it is not necessary to record the results in detail here. Suffice it to say that the results show an average hearing threshold of 52 decibels in the left ear and 50 decibels in the right ear, on the basis of averaging at one, two, and four kilohertz."
The Plaintiff also suffers from tinnitus which Mr...
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