THE HIGH COURT
									1997/2119p
BETWEEN

MICHAEL FRANCIS DUNNE
									PLAINTIFF
AND
THE MINISTER FOR DEFENCE, IRELAND AND
THE ATTORNEY GENERAL
									DEFENDANTS

Judgment delivered by Mr. Justice Barr on the 10th day of July, 1998.

	The plaintiff claims that he has suffered deafness and tinnitus in both ears as a result of unprotected exposure to rifle, bren gun and mortar fire while a member of An Forsa Cosanta Aitiuil (FCA) for a five year period from October, 1964 to October, 1969.  It is common case that in course of service he was on occasions required to fire 303 rifles, a bren gun and a mortar gun.  No protection against noise was provided by the army authorities. The plaintiff contends that his disabilities were caused by the negligence of the latter in failing to protect him against the risk of deafness and tinnitus from unprotected firing of such weapons.
	Three issues are raised on the pleadings.  First, the degree of deafness and/or tinnitus (if any) sustained by the plaintiff.  Secondly, the cause of any such disability which is found to exist and, thirdly, whether the plaintiff's claim is barred by Section 3 of the Statute of Limitations (Amendment) Act, 1991. 
	The plaintiff was born in 1948 and is a painter and decorator by trade.  The FCA is a part-time branch of the national army.  It entails periods of duty on some evenings and occasionally at weekends about eight to twelve times per annum.  There is also an annual camp of two weeks duration.  The plaintiff stated in evidence that he attended four annual camps in course of which he fired in all about 100 rounds of rifle ammunition.  He was on the range for one hour on two days of each camp period.  He would have been about half an hour actually firing on a target range and half an hour in the butts assisting there while others were firing.  He discharged a bren gun twice during his period of service.  As to mortars; he was introduced to that type of weapon about two years before the end of his period of service and was on a four man team which fired about 40 shells in all.  The latter makes a rocket-like noise when the weapon is discharged and there is an explosion as the shell hits the ground about half a mile from the firing point.  No hearing protection of any sort was provided by the army for the plaintiff on any firing exercises.  Discharging 303 rifles caused him a mild degree of tinnitus on each occasion which lasted for a few minutes.  The foregoing facts are not in dispute and I accept the plaintiff's evidence in that regard.
	The plaintiff deposed that he did not notice anything wrong with his hearing, nor did he suffer tinnitus again until 1996.  At Christmas in that year he found that he had some difficulty in hearing his friends as six or seven of them sat together in a busy public house having drinks.  His friends started slagging him in that regard.  In January, 1997 he travelled to Mullingar in a van with a fellow worker to do a job there.  On the way home they gave a lift to a couple of people who sat in the back of the van.  He found that he could not follow what they were saying, though his colleague in the front of the vehicle had no such difficulty.  He stated that it then dawned on him that he might have a hearing problem.  His wife also complained from time to time since August, 1996 that he had the volume of their T.V. at a level which she found too loud. 
	As to tinnitus; the plaintiff stated that he suffers from noise in his ears.  At night when it is quiet he has a ringing in his left ear in particular which is such that he has to get up and walk around.  He also tries to go to sleep in his bedroom with the T.V. turned on so as to avoid silence.  The attacks of tinnitus occur once or twice a week and there is no particular pattern to them.  The tinnitus has become worse over the past twelve months.  Mrs. Dunne, the plaintiff's wife, gave evidence corroborative of the foregoing.
	The plaintiff's brother in law, Richard Monks, also gave evidence on his behalf.  Mr. Monks was a company quartermaster sergeant in the medical corps until retirement in May of this year.  He settled a deafness claim against the army in October, 1997 for £31,000.  He had consulted a solicitor in early 1996.  The plaintiff stated that when he realised that his hearing was deteriorating after the episode in the van coming from Mullingar in January, 1997, he discussed the matter with Mr. Monks.  He recommended him to consult a solicitor who would arrange for his hearing to be tested by a medical specialist.  Mr. Monks corroborated that evidence and conceded that he probably would have discussed the symptoms of deafness with the plaintiff at that time.  The latter took his brother in law's advice and consulted his solicitor who in turn arranged for him to be examined by Dr. George Fennell, a leading expert in the area of deafness.  He had an audiogram carried out which establishes that the plaintiff suffers a minor hearing deficiency at the level of 4,000 hz., i.e., at a sound level which is significantly above that of normal speech.  Dr. Fennell was emphatic that the audiogram indicates noise deafness which is not age related.  In his opinion there is positive evidence of noise induced deafness in both ears which is referable to his weapon firing experience in the army.  However, he also stated that the plaintiff's hearing is normal except at 4,000 hz. which relates to upper sounds.   He expressed the opinion that the plaintiff has suffered a mild degree of hearing loss which he described as slight and that this would be manifest when there is surrounding noise as in a busy pub.  Dr. Fennell also expressed the opinion that the effect of the ageing process on noise induced deafness such as that suffered by the plaintiff would be of little significance.  He also does not expect any further significant degree of deterioration in the plaintiff's deafness.
	Mr. Lyall Lydon, a consultant engineer, gave evidence as to the noise levels generated by the various types of weapons fired by the plaintiff.  There is no doubt that these are substantially above acceptable limits where no ear protection is provided and may have damaged the Plaintiff's hearing.  In the light of his evidence it follows that the army was negligent in causing or permitting the plaintiff to fire the weapons in question without appropriate hearing protection.
	Mr. Dermot Donegan, audiologist, gave evidence about tinnitus.  He stated that in addition to noise there are a number of other sources of tinnitus such as excessive smoking, certain medications, hypertension and diabetes.  In his opinion it would not be possible to establish a probability that the plaintiff's tinnitus is noise induced without first checking out whether any of the other potential causes might be relevant in his case.  The Plaintiff's general health has been such that he has had no occasion to consult a G.P. in recent years and has not done so in the past twenty years or more.  However, the practice in Finglas of which Dr. Finola Kelly is a member, are the Dunne family doctors.  She examined the Plaintiff on two successive days earlier this week.  On each time his blood pressure was recorded as 140/90.  The normal level for his age is 120/80.  The raised level might be attributable to "white coat" tension (and in that regard the Plaintiff did appear to Dr. Kelly as being somewhat tense) or it is indicative of hypertension.  It would be necessary to check his blood pressure again several times to ascertain whether it remained at that level or reverted to normal thus confirming the "white coat" diagnosis.  A urine and a blood test indicated a slight raise in sugar levels but below that indicative of diabetes.  Other possible sources of tinnitus referred to by Mr. Donegan in evidence were ruled out by Dr. Kelly on examination of the Plaintiff.  
	Mr. Maurice O'Connor, an E.N.T. surgeon called on behalf of the defence, also expressed the same opinion regarding the plaintiff's tinnitus.  He had an audiogram carried out which gives substantially the same result as that relied on by Dr. Fennell.  However, Mr. O'Connor regards the plaintiff's hearing loss at 4,000 hz. as being within acceptable limits which do not constitute a significant disability.  This is also borne out by the method of assessment of hearing loss contained in the Green Book.  The latter does not take age into account and is intended as a broad guide for the assistance of the court.
	My conclusions are as follows:-

1.	I am satisfied that the plaintiff is a truthful witness and that he probably did not realise that he had any hearing deficiency until 1996.  Accordingly, the date of knowledge on which he became aware of his deafness, as defined in Section 2(1) of the Statute of Limitations (Amendment) Act, 1991, is August, 1996.  It follows that his claim against the defendants is within time.

2.	I accept the plaintiff's evidence and that of Dr. Fennell that he has suffered a minor hearing loss which was noise induced and was probably caused by his exposure to gun fire during his period of service in the FCA.  I also accept his evidence that he has not been exposed to any other harmful noise which might have caused the hearing loss of which he complains.

3.	The plaintiff's deafness was caused by the negligence of the army authorities in failing to provide him with appropriate hearing protection when firing weapons and other related activities.

4.	The degree of hearing impairment suffered by the plaintiff is slight and occurs only at or about the 4,000 hz. frequency.  The plaintiff's hearing is normal up to 3,000 hz. and again from 6,000 hz.  That minor deficiency is unlikely to deteriorate significantly in the future. 

5.	I accept Dr. Fennell's evidence that the plaintiff's hearing loss is noise induced and though slight in nature it exceeds normal limits but only at or about the 4,000 hz. frequency.  The hearing disability suffered by the plaintiff is such as to entitle him to an assessment of damages.

6.	As to the Plaintiff's tinnitus, I accept that he suffers from a minor form of that condition intermittently at times of silence.  I am not satisfied that he has established on the balance of probabilities a connection between it and exposure to army weapon fire over thirty years ago.  Dr. Kelly's recent examination reveals that he may be suffering from hypertension which could be a source of tinnitus.  This would explain why it did not become apparent to the Plaintiff for such a long time.
	I assess damages in the sum of £8,000.