Greene v. Minister for Defence [1998] IEHC 88; [1998] 4 IR 464 (3rd June, 1998)

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1. 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 Of the balance, namely 83 cases, 51 were either withdrawn or dismissed.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 one Supreme Court decision, namely, that of Horgan -v- Cork County Council , (unreported) 22nd April, 1982 in which a hearing injury was considered.

2. 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's 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.

In that same year came the first report of a claim for damages for noise induced deafness: Berry -v- Stone Manganese & Marine Limited , (1972) 1 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.

During the next few years a trickle of cases went through the Courts, contested only as 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, Hodgson 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 assess damages for that part of the hearing disability caused by the post-1963 exposure.

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 employers 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.

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.

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.

3. 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 an average of hearing losses at selected frequencies. The United States introduced an 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. referred 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.

4. 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.

5. 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.

6. 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 against reliance on the N.P.L. Tables. They claimed that they did not provide an accurate statistical representation of how a sample of the population was likely to react to excessive noise.

7. Mustill J. concluded that the N.P.L. Tables could not be rejected outright and decided to approach the case on the basis that the Tables were broadly reliable, citing the fact that they were the only comprehensive source of data available at that time. Furthermore, he decided that there was nothing 'fundamentally unsound' in the use of the Tables for retrospection, based on the evidence of an expert witness. However, warning against the use of the statistical data in individual cases.

8. The solution adopted in the Blue Book regarding the relationship between impairment and disability was cited as a 'practical and economic basis on which to administer schemes involving large numbers of claims'. Recognising that the actions were test cases, Mustill J. nonetheless stated that the 'object of this judgment is not to devise a scheme which can readily be put into practice'. The validity of the Blue Book system having been put in issue, he decided that no simple solution had been established by the material before the Court. The judgment proceeded to deal with apportioned of liability and the award of damages, before addressing the circumstances of each individual plaintiff in turn.

12. The Factories Act, 1955 set out requirements in relation to safety, health and welfare which were applicable in factories and industrial situations such as building sites and included enabling provisions for Regulations. There were no provisions in relation to noise in the Act. In 1975 Regulations on noise were made under the 1955 Act. These were the Factories (Noise) Regulations, 1975 (S.I. No. 235 of 1975) and were therefore applicable in the same situations as the 1955 Act. These Regulations required that persons employed should not be exposed to sound pressure levels in excess of 90dB(A) unless either:-

13. The Regulations also required that barriers or warning notices be erected in areas where the noise level exceeded 90dB(A). In effect, these Regulations required employers to provide ear protection if the working environment had noise levels above 90dB(A). These Regulations were enforced by the former Industrial Inspectorate of the Department of Labour. While there was a general requirement in the Regulations to control the duration and level of exposure so as to be unlikely to cause harm, the provision and use of ear protection was given equal weight with any other control method. Inspectors visiting noisy factories following the enactment of the Regulations would recommend, inter alia, the provision of ear protection and encourage employees to use them, in particular if measurements indicated the level was above 90dB(A). The use of ear protection, ear plugs and ear muffs has increased since the 1975 Regulations came into force.

14. The Safety, Health and Welfare Work Act, 1989, ushered in a prevention based system covering all employees, in which hazard identification, risk assessment and preventive measures became the norm.

15. On the 1st July, 1990, the European Communities (Protection of Workers) (Exposure to Noise) Regulations, 1990 (S.I. No. 157) of 1990) came into force. These Regulations implemented an EC Directive on Noise (86/188/EC). The Regulations set out a comprehensive legal framework for a hearing conservation programme. They are accompanied by a guidance booklet and a leaflet, available from the Health and Safety Authority (1991 and 1992). These Regulations require the following actions where exposure exceeds 85dB(A):

17. As I have said, hearing loss cases were very rare in the Irish system. The first reported judgment of a hearing loss case similar to the case before me was that of a judgment in James Bastick -v- The Minister for Defence & Ors ., a judgment of Barron J. (unreported) given on the 24th November, 1995. From in or about that time some 11,500 cases have been issued by serving and retired members of the Permanent Defence Forces against the Defendants in this case. I also understand that this number is increasing at the rate of some 100 cases per week.

18. I have already referred to the fact that in 83 cases so far heard, 51 were withdrawn or dismissed and awards were made in 32 cases. Faced with this avalanche of claims, the Government acted by passing the Civil Liability (Assessment of Hearing Injury) Act, 1998 ("the Act") which was signed into law by the President of Ireland on the 11th May, 1998.

"An Act to provide for judicial notice to be taken of a report to the Minister for Health and Children by an expert hearing group which was published by the Department of Health and Children on the 9th day of April, 1998, to provide for Courts to have regard to certain matters contained in that report in certain circumstances and to provide for connected matters."

(a) hearing loss caused by injury which results in the deviation of an individual's hearing, as measured by pure tone audiometery, from previous measurement, where available, of his or her uninjured hearing or where such measurement is not available, from that predicted as normal for his or her age, and

4.(1) In all proceedings claiming damages for personal injury arising from hearing loss, the Courts shall, in determining the extent of the injuries suffered, have regard to Chapter 7 (Irish Hearing Disability Assessment System) of the Report and, in particular, to the matters set out in paragraph 1 (Summary) and Table 4 (Disability Percentage Age Correction Factor) to paragraph 7 (Age Related Hearing Loss Correction) of that Chapter, and the said paragraph 1 and Table 4 are, for convenience of reference, set out in Part I and Part II, respectively, of the Schedule to this Act.

(2) In all proceedings claiming damages for personal injury arising from tinnitus, the Courts shall, in determining the extent of the injuries suffered, have regard to the classification method contained in paragraph 9 (Tinnitus) of Chapter 7 (Irish Hearing Disability Assessment System) of the Report.

20. The schedule to that Act contained at Part 1, Chapter 7.1 of the Report which provides a formula to assess hearing disability and Part 2 of the Schedule provides for a table dealing with disability percentage age correction factor.

22. The terms of reference of that group were that in November of 1997, the Department of Health and Children established an expert group to examine and make recommendations on an appropriate system and criteria for the assessment of hearing disability arising from hearing loss, with particular reference to noise induced hearing loss. The Group consisted of eight doctors who were experts in their field of practice.

23. The Group employed the World Health Organisation Definition of Impairment and Disability. The World's Health Organisation defines impairment as any loss or abnormality of psychological, physiological or anatomical structure or function. A hearing impairment therefore represents evidence of disorder of the organs of hearing.

24. The World Health Organisation defines disability as any restriction or lack of ability to perform an activity in a manner within the range considered normal for a human being. A hearing disability therefore, is the inability to hear everyday sounds in either quite or noisy backgrounds, in a manner that is considered to be normal for humans.

4. The Group met with a number of individuals with relevant areas of expertise or interest, i.e., a representative of the faculty of occupational medicine, the Director, Medical Corps of the Defence Forces, the Chief Medical Advisor to the Department of Social Welfare and representatives of the Permanent Defence Forces Ordinary Ranks Representative Association (P.D.F.O.R.R.A.).

5. Internationally recognised experts on hearing assessments were identified and their advice obtained. The Group met with Professor P.W. Alberti, General Secretary of the International Federation of Otorhinolaryngological Societies and Professor of Otolaryngology, University of Toronto, Professor Mark Lutman, Professor of Otolaryngology, Institute of Sound and Vibration Research, University of Southampton and Professor R.R.A. Coles, Institute of Hearing Research, Medical Research Council, University of Nottingham.

27. The Report outlines the pathophysiology of noise induced hearing loss. It describes European legislation in the field of hearing protection and methods of screening for hearing loss. The difference between screening for hearing loss and the diagnosis of hearing impairment is clarified. The standards for clinical and audiological diagnosis of hearing loss are described. Hearing disability assessment methods from a number of other countries are documented. The proposed Irish scheme for assessment of hearing disability is described, and the scientific basis for its elements discussed. Recommendations for diagnostic testing of hearing impairment and assessment of hearing disability are made.

28. The Report is extensive and deals with hearing disability, age related hearing loss and noise induced hearing loss. It traces the development of noise legislation in Ireland commencing with the Factories Act, 1955 and legislation introduced in 1974. It also referred to the noise regulations introduced in 1990 being the European Communities (Protection of Workers) (Exposure to Noise) Regulations, 1990 (S.I. No. 157 of 1990) which came into force on the 1st July, 1990. The Report is extensive and comparative and sets out the basis for establishing the formula for assessing hearing disability which is incorporated in the First Schedule to the Act.

29. Following the issue of the above Report, a group of doctors involved in appearing for litigants in a variety of types of personal injury actions came together and prepared their report, which for convenience, I refer to as the "Blue Book".

31. The Plaintiff's case came on for hearing in the High Court the day following the coming into force of the Act. This case and a number of other cases were adjourned for one week to enable the litigants and their legal advisors to consider the Act. The Act has not been challenged by this Plaintiff.

32. In this case the Plaintiff claims damages for noise induced hearing injury which he claims to have suffered in the course of his employment with the Defence Forces between 1956 and 1996. He claims the injury was caused by the negligence and breach of duty of the Defendants, their servants or agents, in particular by their failure to furnish the Plaintiff with adequate hearing protection and their lack of compliance with their own internal Regulations and Safety Rules. The Defendants delivered a Defence denying negligence, invoking the Statute of Limitations and claiming contributory negligence, invoking the Statute of Limitations and claiming contributory negligence. The Plaintiff's Reply denied contributory negligence and denied that the action was barred by the Statute of Limitations.

33. Since the commencement of the proceedings the Civil Liability (Assessment of Hearing Injury) Act 1998 was enacted. A booklet was also published by the Department of Health and Children on 9th April 1998 entitled " Hearing Disability Assessment " (the "Green Book"). The Defendants subsequently amended their Defence and claimed that any entitlement to damages must be calculated in accordance with this Act, unless there were substantial grounds to show this formula would render an injustice to the Plaintiff. The Defendants further submit that no such substantial grounds exist in this case. The Plaintiff, in the Reply, denied that the Court was bound to find substantial grounds in order to avoid the application of the statutory formula in the Act. In the alternative, the Plaintiff claims that such substantial grounds exist in this case. The Plaintiff further submits that the relationship alleged to exist between the amount of damages for total deafness and the amount of the Plaintiff's disability, is inappropriate as a means of assessing damages in this case.

34. The Plaintiff is a 59 year old retired member of the Permanent Defence Forces. He was born on the 3rd May, 1939. In 1956 he joined the Forsa Cosanta Aitiuil and remained a member until 1972. He served in a number of non-combatant roles during that time.

35. In 1972 he transferred into the Permanent Defence Forces. From 1972 until 1996 he was generally based at Costume Barracks, Athlone. During the period 1972 to 1978 he was an expert marksman and served upon his battalion shooting team. This involved the extensive use of the FN rifle five days a week for some six months in each year during that period. He was not required to carry out any further duties at that time. I accept his evidence as to the extent of these gunnery exercises and the amount of ammunition which was used therein.

36. Some time between 1977 and 1978 he was transferred to duties as a store-man at the aforesaid military barracks. He served in this capacity until his retirement. He took early voluntary retirement at that time.

37. During the course of his 18 years as a store-man he was engaged in duties dealing with delft, cutlery, bed linen and similar matters. He worked on a daily basis from 8.30 a.m. to 4.30 p.m.. He received 21 days annual holidays and once each year he was engaged in range training. He was also assigned guard duty once every week or two weeks but as I understand matters this did not entail the use of firearms. Each annual range practice involved between seven and ten days rifle practice.

38. From the time the Plaintiff entered the Permanent Defence Forces until 1993 he attended for medical care before different army doctors. He had no problem with deafness or tinnitus up to that time nor did he ever make a complaint in relation to either matter to any person.

39. On the 12th March, 1993 the Plaintiff attended before Colonel Collins of the Army Medical Corps for a medical problem unrelated to this case. The Plaintiff claims that he had no annual medical for some years prior to that date but his LA30 does not seem to bear this out as there are entries prior to this date in 1993 and 1992. Colonel Collins carried out a full medical examination of the Plaintiff on this date and reported, amongst other findings, a loss of 40 decibels at 4,000 Hz. in the right ear. One of the striking features of this case is that up to that date the Plaintiff never considered that he had any problem with his hearing.

40. The Plaintiff gave evidence as to the non-use of ear protectors for some years during his service and as to the inadequate type of protectors subsequently provided. In this regard I accept his evidence.

43. The Plaintiff is a pleasant 59 year old retired person who enjoys his retirement as he is perfectly entitled to do. I regret to say that I found his evidence unconvincing as to the problems of noise induced hearing loss and tinnitus following his medical examination in 1993. His evidence in relation to these matters were unconvincing and especially so during cross-examination. I found him to be extremely uncomfortable in relation to his cross-examination and generally unable or unwilling to respond frankly to the questions that were put to him by Counsel for the Defendants. I found the Plaintiff's wife, Mrs. Patricia Green, to be a very pleasant person who likewise was unconvincing as to the onset and symptoms of noise induced hearing loss and tinnitus. She likewise appeared very uncomfortable in the witness box.

45. The Plaintiff also called Mr. Savage-Jones, an E.N.T. Consultant. He gave evidence in relation to his view of the Green Book (which I shall return to later) and also in relation to the Plaintiff's medical history.

46. Mr. Howard Jones saw the Plaintiff for the first time on the 15th October, 1997. His history included the Plaintiff's time in the Permanent Defence Forces and the types of weapons with which he trained. At that time the Plaintiff's principal symptoms were those of difficulty in hearing, particularly in the presence of background noise and group conversation. The Plaintiff also experienced tinnitus which he described as being right unilateral occurring several times per week with the duration between two and five hours. The Plaintiff considered the intensity of his tinnitus to be moderate and it did not interfere with his sleep pattern.

47. As will be seen from the transcript, the evidence in relation to the history taken from the Plaintiff was minimal. It did not include the dates when the Plaintiff first complained of hearing loss and/or tinnitus.

48. This witness then introduced an audiogram taken on the 15th October, 1997. According to the witness this audiogram was performed by a Ms. McKinnon, a senior technician in the Regional Department of Tullamore Hospital. As will be seen from the photostat audiogram, Exhibit 1, it is unsigned.

50. It is a standard audiogram with recorded frequencies between 1 to 5 and 8,000 kilohertz. It is to be distinguished from the audiogram prepared by Ms. Judy Nugent and relied upon by Mr. Fennell. The latter audiogram contains frequencies at 750, 1,500, 3,000 and 6,000 kilohertz.

51. Taking Mr. Savage-Jones' evidence, on its face value, he is of opinion that the Plaintiff has a 2% hearing loss applying the standards of the "Black Book" which is in use in the United Kingdom. It is a matter of total coincidence that this figure accords with the assessment of hearing loss put forward by the Defendants applying the formula used in the Green Book.

53. The audiograms relied upon by Ms. Nugent and Mr. Fennell were two, one prepared by Ms. Nugent and a photostatic audiometric diagram from Hinchcliffe book on Hearing. They contained without explanation findings at half octave steps which appear to be unusual in standard 150 audiogram charts.

54. During the course of the evidence it became clear that the Plaintiff wished to allege that the formula was unfair and, secondly, that the provision of a fence at 20 decibels was unfair, and, that the make up of the expert Group was not representative. Evidence to that effect was adduced by Ms. Nugent, Mr. George Fennell and Mr. Savage-Jones.

55. The Defendants called Professor Peter Alberti who has a world-wide reputation in his field and who was consulted by the expert Group. Professor Michael Walsh, Professor of Otolaryngology in the College of Surgeons, Dublin. He is responsible for the training of surgeons in the speciality in Ireland. He is also a member of the United Kingdom Surgical Advisory Committee in E.N.T. surgery, Professor Alexander Blayney, a fellow of the Royal College of Surgeons, London, and of the E.N.T. Surgeons of Ireland and General Surgery. He also has a Master's Degree in Surgery from the National University of Ireland. He is a consultant at the Mater Hospital and the Children's Hospital Temple Street, Dublin. He practises in the field of E.N.T. but with a specific interest in otology, in other words, the diseases in and surgery of the ear.

"In general there have been several efforts at this type of exercise. It is a very difficult task and I think this has been done in a workman like way. There is a good regard for previous efforts and attempts of other schemes that have been used. I think this is an expert Group that has been put together. It is made up of experts to provide an expertise. They have, however, as I read it, taken counsel from a variety of interested parties about what should go into it and I think it is about as good as you can get at the present time. It strikes me as pretty balanced in that I believe that both sides could argue against it as being too lenient on both situations. That usually to me is the sign of a good compromise. They are compromises because any scheme of rating hearing disability based on pure tones is a surrogate for hearing."

"My sense is that it favours the people who are claiming. I say this for two reasons; many schemes stop at 3,000 hertz, they do not include 4,000 hertz in the equation. They use one or the other. They do not use both. They use one or the other but 4,000 is more likely to be worse hearing than 3,000. The second reason is that the age correction is little and comes in late where others (schemes) put in age corrections much earlier. The third is that the point at which compensation begins at 20 decibels is lower than several that are out in the field. So when you put those three together I think it is leaning over backwards in favour of the claimant."

"Well the discussion revolves around the ability to hear speech in a background of noise. It has been generally accepted that in perfectly quiet surroundings one can make out enough of the sound of speech between 500 and 2,000 to cope. So to take into account background noise some higher frequency hearing is required and the scientific basis suggest that there is more power in 3,000 than in 4,000, although 4,000 has some power as well. If 4,000 is used then it entrains the 3,000 frequency with it. So the American Academy, we in Canada, and several British schemes were based on 3,000 (as having) the top frequency."

"I do not know of a system that uses 8,000. It mixes in ageing very badly. The reason for testing 8,000, I believe that the Green Book calls for hearing testing at a wide range of frequency, 250 to 8,000. As I understand it or the reason I would think that that it is there is because hearing testing is done for many purposes not just assessing pensions. It is done for diagnosis and so low frequency hearing is tested to catch conductive hearing losses. High frequency hearing loss is tested to see the early signs of ageing but also in noise cases, punitive noise cases to see if there is a notch, because we have heard that the notch is usually at 4 Khz but it may be at 3 or 6 but implicit in a notch is a recovery. If the test is not done to see if there is a recovery it makes it very difficult to distinguish between a hearing loss from noise and other reasons, but the 8,000 Hz has little practical importance in the comprehension of speech in a noisy place. It may add little quality to the hearing of music, it may add quality to speech but for practical purposes it is being tested and found unnecessary."

"That is a pretty broad question but certainly it would cut off song birds, they (people) may have difficulty with some of the overtones of music. (People) will hear music as if it was coming out of a not so good AM radio rather than FM radio."

"The figures on the audiogram are octave steps. In fact the units accurately are 256, 512 and 1,024 but for simplicity they have become 250, 500 and 1,000, moving up the piano now from middle C up in octave steps and it is no accident that the audiogram (before your Lordship) have no 3,000 and no 6,000 put in there because they are the half octave steps. The audiogram is labelled usually in octave steps."

62. Having regard to Professor Alberti's entire evidence, of which the foregoing is merely illustrative, I am satisfied that I should accept his opinion on the Green Book and its formula as being reasonable.

63. Professor Michael Walsh gave evidence as being a member of the expert Group aforesaid. He confirmed that he was appointed by the Minister for Health and that the only instruction given to the group was the construction of a formula that was suitable for assessing hearing disability. He explained how the Group operated and obtained its information.

"This is probably the most difficult part of the whole exercise really because tinnitus is such a difficult thing to deal with scientifically. Basically the classification is on the basis of our clinical experience. Your assessment of tinnitus is always a one to one with the patient, an individual, and how it affects their lifestyle. The patients we see with hearing loss who complain of tinnitus, in a severe manner that distracts them, upsets their whole life, is extremely rare. Often when it comes out at the beginning it is very distressing and after a period of time (people) usually adapt to it through a process called habituation where the brain suppresses the effect of the tinnitus."

65. In addition, he explained the basis for the conversion of categories of tinnitus into specific disability percentages. He further explained the reason for the selection of the fence at 20 decibels. This he explained that:-

"studies showed the majority of people who had a hearing threshold of 20 decibels or less had not hearing difficulties in the presence of background noise. So it was really based on the fact most other formula have higher fences 25 up to 35 and some of them even up to 40 and 50."

66. In his view the fence is really on the borderline of the pure tone audiogram of normality. Professor Blayney gave evidence of his involvement in cases coming before the Courts arising out of claims for hearing loss by members of the Permanent Defence Force. He was not on the expert Group but his views were sought. When asked his view of the fairness or otherwise of the system of assessment set out in the Green Book to grading these claims, he was of the view that this was a fair assessment. He continued:-

"It is an extremely difficult thing to produce a mathematical formula that deals specifically with a human body because the human body, its physiology does not lend itself to mathematical abstraction and as we are all aware, over the past few years there have been a number of formula and different types of assessment from the (United) States and United Kingdom presented in these Courts and there have been faults and failings in all of these. So it would be facile to say this is an absolutely perfect answer to all our problems, it is not. As I say it is impossible to produce an absolutely perfect mathematical assessment but I do think that it certainly represents a serious massive effort over a three month period to try to come to grasp with the difficult subject and to try to produce a formula that makes sense in this domain. So in that way, I think it has been successful overall."

67. As to the frequencies used generally, the witness expressed the view that the most important frequency for speech is 2,000 Hz. He goes on to say that this is then aided and abetted by findings at 500 Hz and 1,000 Hz. These he identified as the most important three frequencies. Whilst one sees a spectrum of frequencies that range from 1 to 8,000, speech is basically centred between 500 and 2,000 Khz.

"I said in audiological terms and probably even rare in tinnitus terms again having worked on tinnitus, having been involved in trials in Oxford in tinnitus, it is an extremely subjective system. The number of patients with excruciating incapacitating tinnitus I would probably see one per annum in my practice and I am interested in that area. So that you know I think that if a particular individual has a track record of a major problem with that symptom then they should be compensated but this goes with a time tried history. They cannot just appear with excruciating tinnitus. They should, by the time they come to Court, have been through the entire panacea of investigation and treatments."

"I think it has been extremely well done and I do not think it can necessarily be improved on bar one or two faults or failings, minor inadequacies which may need to be adjusted are certainly taken into consideration when specific cases are presented to the Court."

71. The last witness called on behalf of the Defendants was Colonel Maurice Collins. He is the Director of the Army Medical Corps. He was called to explain the operation and reason for the Army Regulations in the hearing field. He also gave evidence concerning the Plaintiff's attendance for examination on the 12th March, 1993. He does not have any recollection of a complaint of tinnitus. However, he is certain that were there such a complaint he would have noted it. I accept his explanation as to his standard practice on examination of any of his patients and likewise I accept that he would not withhold any information from his patients. I am satisfied I can rely on his evidence in relation to the examination on that date.

"Judicial notice refers to facts which a Judge can be called upon to receive, and to act upon, either from his general knowledge of them, or from enquiries to be made by himself for his own information from sources to which it is proper for him to refer: Commonwealth Shipping Representative -v- P&O Branch Service , [1923] A.C. 191 at 212 - House of Lords per Lord Sumner. Judicial notice is therefore a means of establishing rather than providing a fact.... It is thus unnecessary for any party to lead evidence to establish the findings of the expert group as contained in its report in any such proceedings. The Court is entitled to act upon such facts as if they were given in evidence before the Court by a competent witness in the ordinary way. That does not, of course, mean that the Court is bound to accept that evidence any more than it is bound to accept any other evidence which may be put before it. The doctrine of judicial notice concerns itself with the method of establishing facts rather than the weighing of conflicting evidence."

74. The Defendants submit that the interpretation of Section 3, described above, requires that Section 4 must be given an independent meaning and effect. The Defendants state that "it is a fundamental principle of the construction of statutes that provisions are presumed not to be included in vain, or for no purpose". They deduce that Section 4 must therefore "mean something more than that the contents of the report (including the formula contained therein) are to be evidence to be weighed in the balance in any proceedings".

75. The requirement in Section 4 to have regard to the statutory formula "in determining the extent of the injury sustained" is interpreted by the Defendants as meaning that "regard has to be had not merely to the fact that one injury is defined by the statutory formula as being more serious than another, but also to the fact that a particular mathematical proportionality is expressed as and between two such injuries". "The statutory formula does not merely rank injuries in terms of seriousness" but rather "allocates to each level of injury a percentage loss and thus establishes a direct proportionality between each injury".

76. According to the Defendants the word "shall" must "be viewed and interpreted in the context in which [it].. appear[s] in the particular statute". The use of the word "shall" in the context of "having regard to" is submitted to have the effect of requiring the Court to give "very serious consideration" to the formula, while falling short of a requirement to apply it.

77. The Defendants therefore conclude that Section 4 requires the Court to "pay special attention to the statutory formula". They submit that "to suggest that the statutory formula has no greater weight than any other evidence put before the Court would... be to render Section 4 of no effect". "The Statutory formula would, as part of the report, be a matter which the Court would be entitled to take into account under Section 3 in any event. Section 4 must therefore mean that the Court is required to pay greater regard to the statutory formula than simply taking it into account".

78. In the submission of the Defendants, the Court should have regard to the statutory formula by applying in it all cases, unless it can be established that the formula would give rise to a "substantially unfair result".

"Furthermore, given that the result of the application of the statutory formula is to produce a percentage figure, it is submitted that the Court should (again, in the absence of special circumstances) have regard to the fact that the formula is expressed as a percentage and, therefore, award the appropriate percentage of the damages which the Court would consider applicable in the case of total deafness (or 100% loss)., The Act does not require the Court to apply the formula at all, or by means of a strict application of the percentage test. However the Act does require the Court to have regard to that formula, and it is submitted the way in which the Court should so have regard is by applying the formula.... in all cases where it cannot be shown that there are strong reasons for departing from it."

79. The Defendants submit that the evidence of Professor Alberti, Professor Walsh and Mr. Blayney make is clear that "the statutory formula is not merely a reasonable, but a particularly good, attempt at what is a difficult task". They further submit that "the evidence supports the fact that the formula devised by the expert group is, if anything, more favourable than other such formulae to persons suffering the particular type of hearing loss encountered in army deafness claims". It is submitted on behalf of the Defendants, that "the range adopted in the statutory formula has been shown to be the appropriate range" and that "the selection of the particular points within that range for use in the calculation have also been shown to be ideal".

80. The Defendants claim there has not been effective evidence to counter either the contentions of Professor Alberti that the formula gives a very good fit with actual hearing loss as perceived by the individual, nor the contentions of Professor Alberti and Mr. Blayney that "normality is a range of hearing rather than a specific point". On the latter issue, the Defendants submit that "some form of low fence is required to have regard to the fact that persons can properly be said to have normal hearing while, at the same time, having hearing which is somewhat worse than persons who have precisely the median hearing for their age". They further submit that the evidence established the formula as a fair and reasonable one, while accepting there may be a small minority of cases requiring exceptions.

81. The Defendants urge the Court to find that the statutory formula was established by cogent evidence to be a "fair and reasonable exercise by the Oireachtas of its judgment based on expert assistance as to the appropriate scale for the assessment of percentage hearing loss".

82. Having accepted that there could be an extremely limited number of cases where an individual could show the statutory formula was unfair to them, the Defendants submit that this case falls far short of such circumstances. The Defendants do accept that an individual may have a loss which does not amount to a disability and yet be entitled to some damages. However they urge that unless such cases fall within the exceptional circumstances already mentioned, the damages should be nominal. In this case, the Plaintiff has a scoring loss under the statutory formula of 2% and the Defendants submit that he should obtain nominal damages only. "Exceptions to the application of that rule should, it is submitted, only arisen when there is clear and persuasive evidence that the statutory formula would operate unfairly in the unusual circumstances of a particular plaintiff".

83. The Plaintiff submits that "the Court must accept Section 4 as it is enacted, and not as the Defendants would wish it to have been enacted". If the Legislature intended the formula to have the degree of evidential weight suggested by the Defendants, the Act should have provided accordingly. Furthermore, in the submission of the Plaintiff, the interpretation of Section 4 advanced by the Defendants would "amount to a very serious interference and a challenge to the independence of the Judiciary and of the Courts as guaranteed by the Constitution, in that it would seek to direct the Courts to treat one item of evidence with greater weight than another and with retrospective effect, and in a manner which almost certainly would adversely affect the rights of the Plaintiffs, including the Plaintiff in this case".

In R. -v- Police Complaints Board (ex parte Madden and ex parte Rhone R.), (1983) 2 All E.R. 353, McNeill J. was obliged to consider the meaning of the terms "shall have regard to" in the context of disciplinary charges. He concluded that it meant no more than that the Board was required to take the guidance of the Secretary of State into account, but was not obliged to comply with it.

In Ishak -v- Twowfeek & Anor. , (1968) 1 WLR 1718, Lord Pearson stated that the requirement to "have regard to" certain matters means that they must be taken into account, considered and given due weight, but the charitable board in question retained an ultimate discretion in the exercise of their functions.

84. The decision of Somers J. in R. -v- C.D. , (1976) 1 N.Z.L.R. 436, described the phrase "shall have regard to" as not affecting or limiting the discretion of the Court. He stated that the matters referred to in the legislation were to be considered, but may be rejected or given such weight as was suitable.

85. The Plaintiff submits that the terms "hearing injury" and "hearing disability" are two separate and distinct concepts. They claim that it would be possible to have a hearing injury but at the same time not suffer from a hearing disability. They submit that such a person

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

2. It provides that the Courts must consider the formula in the Green Book and then decide whether to use this formula to determine the extent of the disability or whether to consider some other formula, at all times leaving this determination to the Court's discretion.

1. The inclusion of 500 Hz in the calculation of a hearing disability is criticised by Mr. Lawton and Ms. Judy Nugent ad the Plaintiff's claim that, as it is a low frequency which is almost never damaged by noise, it has the effect of unfairly weighing the overall result in favour of the Defendants.

2. The exclusion of 3,000 Hz from the calculations was also criticised by expert witnesses, as it is an important frequency which is often damaged by noise. The Plaintiff disputes that such a calculation could be deemed accurate, as it fails to take into account this important frequency. Other systems of calculating hearing disability and the systems adopted in many other countries do take account of the 3,000 Hz frequency.

5. The treatment of the subject of tinnitus in the Green Book is claimed to have been severely criticised by many medical specialists, and it is claimed that no other country has dealt with the issue in a similar manner. All the expert witnesses are claimed to have supported the notion that the assessment of the effects of tinnitus must be done on an individual basis, and not by reference to a percentage disability.

6. The medical experts were agreed that an assessment of "hearing injury" must be dealt with separately from "hearing disability" or tinnitus and could only be determined by comparing the individual's hearing to what it ought to be for their age.

89. The Defendants have admitted that the Plaintiff suffered a noise induced hearing injury and tinnitus as a consequence of negligence and breach of duty on their part. The pitch matching test indicates that the tinnitus equates with 6,000 Hz, which, they claim, confirms that the Plaintiff does actually suffer from noise induced tinnitus. This has not been challenged by the Defendants.

90. The hearing loss and tinnitus register as a hearing disability to the extent of between 2% and 3%, to which might be added another 2% or 6% for tinnitus in the event that the Court applied the Green Book.

92. The Defendants concede that a person who does have a loss not amounting to a disability, is entitled to damages. The Plaintiff submits that the Court is obliged to assess appropriate damages taking into account the pain and suffering of the Plaintiff to date and in the future. They submit that these damages should be significant, and the fact that the loss registers on the Green Book formula, should only serve to increase the damages further.

93. The Plaintiff submits that the Court should have regard to the fact that the damage was suffered over a length period of time, during which the Defendants were in beach of their own Safety Rules and Regulations. The Plaintiff claims an entitlement to compensation for the worry and anxiety caused by the proceedings, wherein the admission of liability was made only moments before the hearing commenced, in spite of the overwhelming evidence of negligence.

95. The Defendants submit that the Court is required to give "very serious consideration" and "pay special attention" to the statutory formula and they contend that the Court must "pay greater regard to the statutory formula than simply taking it into account". While the Defendants claim the consideration required to be given to the formula "falls short" of a requirement to apply it, they do state that the means by which the Court should have regard to the formula is by applying it in all cases, unless there are "strong reasons" to show that a "substantially unfair result" would ensue.

96. The Plaintiff invoked judicial support in the United Kingdom and New Zealand in favour of an interpretation of the phrase "shall have regard to", which entailed merely taking the formula into account, while permitting the Court to retain an ultimate discretion. It is noteworthy that two of the decisions cited in support of the Plaintiff's contentions ( R. -v- Police Complaints Board , ex parte Madden and ex parte Rhone (1983) 2 All E.R. 353; and Ishak -v- Twowfee & Anor ., (1968) 1 WLR 1718) concerned legislation which governed a police complaints board and a charitable board respectively. The statutes in question thus did not relate to decisions of the judiciary. The third case invoked in support of their interpretation, R. -v- C.D ., [1976] 1 N.Z.L.R. 436 related to a statutory provision which expressly stated that the considerations to which regard was to be had were "without limiting or affecting the Court's discretion" (Section 5(2) Costs in Criminal Cases Act, 1967).

97. The interpretation of judicial notice in Section 3 is not disputed. However the Defendants seek to invoke this interpretation as a means of inferring that some greater weight must have been intended by the Legislature under Section 4. Section 3 admittedly refers to the mode of proof and not the weight thereof. This does not render Section 4 superfluous however. It is clear from the submissions of both of the parties that the formula in Section 4 is relevant to the question of the weight to be attached to particular evidence. This distinguishes the legislative intent in enacting Section 4 from that of Section 3 sufficiently to overcome the concerns of the Defendant that Section 4 could be rendered nugatory.

98. The question then is the weight which should be attached to the statutory formula in accordance with the terms of Section 4. In determining the weight to attach to evidence, the Court must always retain the judicial discretion and independence which is inherent in the Separation of Powers. However, in exercising this discretion the Court is free to take into consideration such evidence as it deems fit and to weight such evidence in the manner which the Court deems to be appropriate.

99. The enactment of Section 4 clearly represents an endorsement by the Legislature of a particular formula for assessing hearing loss and tinnitus. This is a factor which the Court should consider and take into account. The requirement to "have regard to" the Green Book does not however impose a duty upon the Court to adhere strictly to its terms. Therefore, while Court must consider the approach adopted in the Green Book, it reserves the right to consider alternative approaches. The Court may then determine which is the most appropriate solution in each individual case. In the absence of a more appropriate alternative solution has been established to the satisfaction of the Court, the statutory formula should be applied. The circumstances in which the statutory formula is not applied, may in fact transpire to be as limited as the Defendants submissions suggest. However, this will be a matter for the determination of the Court in the circumstances of each individual case.

100. No constitutional challenge has been raised by the Plaintiff and he cannot now do so. In any event I do not interpret the provisions of the Act as placing a fetter on the exercise of judicial discretion. See Maher -v- A.G., [1973] I.R. 140 . What is provided for here is a fair and reasonable method for assessing these litigants hearing disabilities. The Court may in any given case deem the formula inappropriate where the evidence so establishes that it not to be applied.

101. As to the assessment of damages in this case. Taking to evidence as presented to the Court, I arrive at the following conclusions, firstly, it is common case that the Plaintiff has a 2% noise induced hearing loss. For that he must be compensated.

102. The Plaintiff also alleges that he is suffering from tinnitus. I accept on the evidence in this case and also having regard to evidence I have heard in other cases, that tinnitus may be an extremely serious disability. I also accept that it is incapable of being proven objectively. Turning to the evidence of the Plaintiff on this matter, I regret that I have come to the conclusion, that I am not satisfied, on the balance of probabilities, that the Plaintiff suffers from this condition.

103. I note that the Plaintiff had no history of such condition from 1972 until he issued these High Court proceedings in 1995. His evidence in relation to that alleged condition was unconvincing. As Professor Blayney asserted in evidence, a person claiming to suffer from tinnitus cannot "just appear". Such a person would, in his opinion, have a "time tried history". By the time the claimant comes to Court they should have been through the entire range of investigations and treatment for the condition they claim to suffer from. Having regard to these factors I conclude that I ought not make an award in relation to the claim for tinnitus in this case. As to what is an appropriate figure of compensation for a person suffering a 2% hearing disability, it seems to me appropriate to have regard to the opinion of Mustill J. in the Thompson decision. He was dealing with the absence of authoritative official guidance on the levels at which noise exposure becomes dangerous. In his view one of the more convincing explanations for the lack of urgency in dealing with noise induced hearing loss was that deafness is an underrated affliction.

"The hardships imposed by blindness are there for all the sighted to see. More imagination is needed to picture the isolation, frustration and fatigue endured by those who cannot hear. Hardness of hearing can be sometimes as much a matter for derision as for sympathy.

Furthermore, it is realistic, not insensitive, to acknowledge that the handicaps suffered by these plaintiffs are less striking than those of other victims of industrial life. Excessive noise does not kill, or shorten the expectation the life. It does not lead to paralysis, mutilation or scarring. There is no pain, although in some instances a distressing tinnitus may be an additional symptom. At the levels with which we are concerned, exposure for the whole of a working lifetime does not bring about total deafness, or anything approaching it. The symptoms do not render the sufferer unfit for their work in the industry: Indeed, more than one writer has pointed out the unpleasant paradox that a worker made deaf by excessive noise is better able to endure the discomfort of such noise than a person with unimpaired hearing. All in all, the consequences of a noise induced hearing loss goes no further than a real, but not total, diminution in the opportunity to enjoy life to the full."

105. Turning to the Plaintiff's case and the specific deficits of which he complains, I prefer the evidence adduced on behalf of the Defendants' experts. I accept the evidence given by the Plaintiff's experts as being honestly given. They are not treating doctors. Nonetheless, they act and proffer their evidence on the case history as given to them by the Plaintiff.

106. Accepting, as I do, the evidence of the Defendants' experts I find, on the balance of probabilities, that the Plaintiff's complaints are not sustained. His hearing loss is minor. He being unaware of any hearing problem prior to examination by Colonel Collins in 1993 tells its own story. On the evidence I cannot understand how he has a problem with the telephone. Likewise, with the television. The former I find difficult to accept, having regard to the auditory range provided by telephone companies. The second problem, to my mind is doubtful, on the Plaintiff's own evidence and is easily solved according to Professor Alberti's evidence. As to the Plaintiff's background noise problem, he has, on his own evidence, not altered his lifestyle.

107. On Professor Alberti's evidence I am impressed with the view that noise induced hearing loss is more probably likely to arise in the ear nearest the weapons discharge point. For a right sided shootist that ought to mean that the left ear is more likely to be damaged. That makes sense on a little reflection. The ear which is closest to the weapons butt is farthest away from the discharge point.

108. Taking the Plaintiff's case at its highest, and accepting as fact Colonel Collins' evidence as to the advice given to the Plaintiff, I conclude, on the balance of probabilities, that this Plaintiff never suffered other than a very minor noise induced hearing loss.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Greene v. Minister for Defence [1998] IEHC 88; [1998] 4 IR 464 (3rd June, 1998) URL: http://www.bailii.org/ie/cases/IEHC/1998/88.html Cite as: [1998] IEHC 88, [1998] 4 IR 464

High Court of Ireland Decisions

Greene v. Minister for Defence [1998] IEHC 88; [1998] 4 IR 464 (3rd June, 1998)