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Barry v. Ireland [1999] IESC 85 (7th December, 1999)
THE
SUPREME COURT
No.
315/98
Hamilton
C.J.
Denham
J.
Keane
J.
Murphy
J.
Lynch
J.
BETWEEN:
PHILIP
BARRY
PLAINTIFF/RESPONDENT
AND
THE
MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS/APPELLANTS
JUDGMENT
delivered the 7th day of December 1999 by Lynch J. [Nem. Diss.]
1. This
is an Appeal by the Defendants (hereafter the State) from a Judgment and Order
of the High Court (O’Donovan J.) delivered and made on the 23rd October
1998 whereby the State was found to be liable to the Respondent for noise
induced hearing loss suffered by him and damages were assessed in his favour at
the sum of £31,845 made up as follows:-
|
Pain
and suffering to date
|
£9,800.00
|
|
Pain
and suffering in the future
|
£12,045.00
|
|
Special
damages in the future
|
£10
000 00
|
|
Total
|
£31,845.00
|
________________________________________________
(2)
2. By
a Notice of Appeal dated the 10th November 1998 the State appealed to this
Court:-
“From
that part of the Order and Judgment of the High Court whereby the Plaint
if
was
awarded the sum of £1 0, 000.00 for ‘future losses “, which,
added to the other sums awarded, brought the costs awarded on the matter within
the jurisdiction of the High Court, for an Order of this Court that the said
Order be set aside in so far as it relates to the said award of £10, 000
and that in lieu thereof this Court do assess the damages to which the
Plaintiff is entitled or, alternatively do direct a new trial of the issue as
to damages to which the Plaintiff is entitled and award such costs as such
award would attract.”
3. No
appeal was brought against the finding of the High Court that the State was
liable to the Respondent in damages for the noise induced hearing loss suffered
by him and the ambit of the Notice of Appeal of the 10th November 1998 as
regards the damages assessed was somewhat ambiguous. By a further Notice headed
“Amendment of Notice of Appeal” dated the 1st July 1999 the State
notified the Respondent as follows:-
4. “Take
notice that at the outset of the hearing of the Appeal in the above matter an
application will be made to this Honourable Court by counsel on behalf of the
above named Defendants/Appellants to amend the Notice of Appeal herein to
insert and allow an Appeal from the Judgment and Order of the High Court in
addition to the Appeal in respect of the sum awarded for ‘future losses
“, being £10, 000, referred to in the said Notice of Appeal, in
respect of the following:-
(a) the
award of damages for pain and suffering to date £9, 800.00
(b) the
award of damages for pain and suffering in the future £12, 045.00.”
________________________________________________
(3)
5. However
when the Appeal was moved before the Supreme Court counsel for the State
confined the Appeal to the sum of £10,000 “special damages in the
future”.
The
Factual Background
6. The
Respondent was born on the 7th October 1957 and is a married man with one
child. He enlisted in the Army in November 1975 at the age of 18 years. Over
the intervening years he was exposed to most types of gun fire noise, including
mortars, without any ear protection. He was promoted ultimately to the rank of
Company Quarter Master Sergeant which was the rank held by him at the date of
the trial in October 1998 at which time he was 41 years of age. He was unaware
that he was deaf although his wife and parents had been telling him that he was
deaf since the early 1980s. In 1995 he had an audiogram as part of his annual
Army medical check-up and was told that he had high tone deafness in both ears,
following which these proceedings were issued on the 12th March 1997. The
Respondent had shortly before the trial in October 1998 re-enlisted in the Army
for a further two years in the ordinary way and had been accepted for such
period.
The
Submissions
7. Mr
Reidy, Senior Counsel for the State submitted:-
(1) The
Respondent has a job as Company Quarter Master Sergeant which he is well
capable of performing.
(2) There
is no evidence that he is likely to be discharged from the Army before the
normal retiring age of 60 years.
(3) There
is no evidence of what prospects the Respondent would have in civilian life if
he were to leave. The Respondent has the ideal job for such disability as he
has and the future loss claim is a purely manufactured element of loss.
________________________________________________
(4)
8. Mr
Geraghty, Senior Counsel for the Respondent submitted:-
(1) In
answer to the last submission of Counsel for the State that the claim for
future loss of earnings was a manufactured element of loss Mr Geraghty referred
to page 1 of the transcript of the learned trial judge’s judgment in
which he says:
‘I
think it is appropriate to comment that I considered him to be a very fair and
honest man who did not attempt to exaggerate in any way.’
(2) Counsel
referred to various passages from the transcript of evidence such as the
Respondent’s evidence at Questions 23 and 24 and Dr.
O’Meara’s evidence at Question 128.
(3) Even
if the Respondent remained in the Army until the age of 60 years he will
thereafter be at the loss of opportunities for employment and leisure
activities which would have been open to him were it not for the noise induced
hearing loss suffered by him.
Conclusions
9. This
Appeal is really on the facts as found by the learned trial judge and on the
question as to whether there was credible evidence to support such findings. It
is appropriate that I should first quote the above two extracts from the
Transcript of Evidence which were referred to
(inter
alia)
in
the submissions of Counsel for the Respondent.
“23
Q. Now you have had 23 years service in the Army?
A. That’s
correct.
24
Q. What do you intend to do for the future?
________________________________________________
(5)
A. I
was hoping to go out but I think my job prospects outside might be a bit
restricted due to the fact of my hearing. I have not checked it out for the
moment because I signed on only recently for another two years. So I have two
years to decide now what I intend to do.
128
Q.
Can
I ask you Dr. O’Meara as to whether the deterioration in hearing is a
progressive deterioration?
A. It
is. As it progresses if there is already some high tone deafness it extends
more into the lower tones as well as increasing in the higher tones, so the
speech frequencies become affected. I am concerned My Lord about a number of
these men when they leave the Army they go into something like security and he
is going to have trouble hearing on a mobile phone. He is going to have trouble
taking, picking up a message on the mobile phone. I have experience of some of
these men who have left the Army: one in particular who had to leave the Army
because he could not pick up messages on the mobile phone. He had to leave
security, sorry.”
10. I
now quote some further extracts from the transcript. In answer to
cross-examination by counsel for the State in the High Court the Respondent
said at Questions 60 to 65 as follows:-
“60
Q. Now you say in your job, just coming to your hearing for a moment, you say
in your job you have to use the telephone?
A. Yes
fairly regularly.
61.
Q.
Yes.
That would be so in many events in administration, in the ordinance, it means
taking calls from other units?
________________________________________________
(6)
A. Yes.
62. Q.
And with them mentioning what they wanted and whether you can supply it?
A. Yes.
63. Q.
What is the background noise you complain of that you cannot hear properly?
A. Inside
in the office I would have 3 out of 4 offices there. They are enter clerks they
would be called. They keep the books up to date under my supervision and these
chaps would be talking and they are working away at the time and if they are
talking I would find it difficult to hear.
64. Q.
On the telephone?
A. On
the telephone yes most certainly. If I put it up to my right ear, because I am
right handed, I would be inclined to switch it to my left ear.
65. Q.
There is improvement when you put the telephone to your left ear, is that
correct?
A. That’s
correct, yes.”
11. Mr
Patrick O’Meara, Ear, Nose and Throat Surgeon said at Questions 123 to
128 and Questions 132 to 134 as follows:-
“123
Q. Well is it your view than that he has both a hearing deafness in the speech
frequencies, particularly on the right side and also a high tone deafness in
both ears?
A. Yes,
that is right.
124
Q. I take it that there is no useful treatment for this?
________________________________________________
(7)
A. No
useful treatment My Lord and this type of deafness with a steep drop, a hearing
aid is not of much help. I am thinking of when he is older.
125
Q. Yes.
A. I
would like to make one other remark and that is with regard to the high tone
deafness in the left ear. When he gets older - the graph is already beginning
to come down at three thousand in the left ear. As you get older the deafness
extends into the lower tones. This is the pattern that always happens as you
get older. So that he is going to have significant trouble even with his left
ear at
55,
60
years of age.
126. Q.
What about his right ear as he gets older and moves into the age bracket 55 to
60?
A. Why
do I say 55?
127. Q.
No in relation to his right ear how will that progress as he gets older?
A. Well
again I think calculations have been made as to what extra deafness he will
have in percentage wise when he is about 60, 62. I think this has been
calculated. I have not done the calculations.
128. (already
quoted above).
132. Q.
Doctor if this man in two years time, when he I think will be then 43 years of
age, decides to go to civilian life?
A. Yes.
133. Q.
Apart from security are there any other job opportunities denied to him or made
more difficult by reason of his condition?
A. Well
my only experience My Lord is that a number of places in employment now,
particularly any place where there is noise in the
________________________________________________
(8)
occupation
test Applicants, they test the hearing of Applicants and if their hearing is
not normal they are not accepted because they are afraid of litigation later
against the place of employment. So this is, more and more places are testing
people’s hearing.
134.
Q.
If
such a test were carried out I would presume his then current condition would
emerge via
A. Some
of them are very strict. Some of the men in the Army go for transport. C.I.E.
and these places are extremely strict with regard to hearing.”
12. The
learned trial judge stated and made findings of fact particularly at page 3 and
page 9 of the Transcript of his Judgment as follows:-
“Mr
O‘Meara said that it was his view that the Plaintiff would have problems
with regard to future employment when he left the Army. He said in his
experience of soldiers with similar hearing problems, they would have
difficulty getting work in the security area because they have difficulty using
mobile phones and in respect of an awful lot of other jobs it is becoming the
practice nowadays for would-be employers to carry out hearing tests on the
staff that they intend to employ and if those tests indicated a hearing loss
they would reject them because they were afraid of claims being made against
them.
However,
on top of that and having regard to the decision of Mr Justice Barron in the
case of
Bastik
v The Minister for Defence
which was delivered in November 1995
________________________________________________
(9)
that
in cases of this nature regard must be had for the effect which a loss of
hearing might have or will have on a Plaintiff’s quality of life I think
I have to have regard to the unchallenged evidence of both the Plaintiff
himself but more particularly that of Dr. O’Meara as to the problems
which this Plaintiff may experience in the future with regard to getting
employment when he leaves the Army. He said he fears for the future in that
respect because he feels that his hearing problems may inhibit his prospects
for employment. Dr. O’Meara, who was not challenged, said that in his
experience the Plaintiff has very good reason to be worried because he will
have problems in Dr. O’Meara ‘s view obtaining employment in the
future. Now I have no figures in that regard but it seems to me that in the
light of Dr. O’Meara ‘s evidence it would be reasonable for me to
conclude that the probabilities are when this man leaves the Army and goes out
into civilian life and tries to get employment he is not going to be able to
command the type of income he might have been able to command had he not got
this hearing loss. Again somewhat arbitrarily, but I think reasonably, I would
assess his future loss in that regard at £10,000.”
13. The
question for this Court is as to whether there was reasonably credible evidence
to support the foregoing findings of the learned trial judge. In my view the
few passages which I have quoted above from the transcript of the evidence
given at the trial clearly support the findings of the learned trial judge and
in these circumstances I would dismiss this Appeal.
© 1999 Irish Supreme Court
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