High Court 

Gardiner v Minister for Defence and Others

1995/1702p  

13 March 1998 

JOHNSON J: 

The Plaintiff in this action claims damages against the Defendants in respect of personal injuries which he alleges he suffered as a result of the negligence, breach of duty and breach of statutory duty of the Defendants in and about their employment of the Plaintiff as a serving soldier. 

The Plaintiff was born on the 9 June, 1943 and he served in the army for a total of 16 years. He joined up in 1961. He served for 4 years and then retired from the army and rejoined in 1971 and served for 14 years until 1984. Outside the army he worked in many occupations but at no time was he exposed to any excessive noise except in the army. 

Whilst in the army he was exposed to the noise of many weapons which he utilised but in particular he was exposed to the mortar. He became a mortar specialist in the army and finished up as a mortar sergeant. A mortar is a particularly loud weapon. 

This required additional training and firing of the mortar over a considerable period. He served in the Congo and Cyprus as a mortar-man. 

His duties as a number one mortar-man was to get the mortar on target and when the mortar was on target to give instructions to the number two man to load up and fire. It meant being right beside the gun and he was therefore totally exposed to the noise of the weapon. 

In addition to the other normal weapons which he may have used, he was on a number of shooting teams and this required a great deal of additional training and practice. 

The Plaintiff's evidence regarding his exposure to these sounds and the extent of the training which he underwent was un-contradicted and indeed unquestioned to any extent by the Defendants. 

In addition, the Plaintiff gave evidence which is un-contradicted that at no time was he provided with any ear protection during the course of his service in the army nor was it ever recommended to him that he should use ear protection. 

This was negligence on the part of the Defendants as his employers and in addition it was in breach of their own regulations. 

The Plaintiff accepted that he had a large number of other illnesses which were totally unconnected with the hearing but he said that in 1975 or 1976 he began to get a buzzing noise in his ears which he did report to the doctor, a Dr McCann. Dr McCann was an army doctor but at no time did Dr McCann relate the buzzing noise he had in his head to any hearing deficiencies which he might suffer and he was told he had flu and he had no tests. Subsequently, after further complaints he was detained in hospital for two weeks but nothing was done and still no tests were taken. 

No explanation was ever given to him regarding the buzzing in his ears and therefore no recommendation was made that he should wear ear protectors. 

After the Plaintiff left the army in 1983, he suffered a great deal of discomfort from other non-related medical conditions which were of a life threatening nature. However, all through this period he says and I accept, the buzzing in his ears continued but as he said himself, having regard to the nature of the other ailments from which he suffering, this was not any major problem. 

However, as a result of a conversation with a niece of his who questioned him regarding his hearing, he went to his Solicitor in 1994 and was sent from there to Dr Flynn who did the audiogram and concluded that the Plaintiff was suffering from noise induced hearing loss and that the buzzing in his head was tinnitus and that these two conditions were permanent. 

Dr Flynn, who has a great deal of experience in industrial employment medicine, had known the Plaintiff for a number of years and came to the conclusion that he was an honest man and that he was experiencing the particular difficulties which he suffered, namely, tinnitus and having some difficulty in conversation when there was more than one person in the conversation. The Plaintiff in addition complained of sensitivity to noise particularly the stereo of his son. 

It is most interesting to note that in the course of his evidence the Plaintiff protested that he was not deaf but just had a hearing difficulty relating to conversations with people when there was more than a one to one situation. 

I find as a fact that the first time the Plaintiff related the noise in his ears and his hearing impairment with his experience in the army was in 1994 or early 1995. I found that Mr Gardiner, the Plaintiff, was a very impressive witness who certainly did not in any way over-emphasise his hearing impairment or in any way exaggerate, in my mind, his condition. The issues which I have to try are as follows:- 

1. Was the present condition suffered by the Plaintiff noise induced as a result of the negligence of the Defendants? 

2. If the answer to question 1 is yes, what level of the impairment it should be to assess damages? 

There is no doubt the Defendants were negligent. There is a dispute between Dr Flynn and Mr Kelly regarding as to whether or not the present hearing condition was noise induced or is a loss at all. Mr Kelly is adamant that his present condition is within normal limits and in any event, whatever condition he may suffer from, is due to age rather than the noise to which he was exposed. Dr Flynn on the other hand is quite clear that the condition which he has is noise induced and is genuine. 

I have heard a great deal of evidence regarding various methods of measuring hearing loss as to whether or not one should go above 3,000 hertz when so measuring. 

In this regard I think it is necessary to say the following. There is no standard agreed by the doctors in this country or indeed, as far as I can make out, in any country. Far from the American Medical Association being accepted everywhere, I am now told it is accepted in 27 states in the United States and in all the others states they have varying different types. In the UK there are 8 different standards which are utilised in many Courts. In Ireland whereas there is no accepted and agreed medical standard, the Irish army introduced in October 1997 a categorisation, I am told in accordance with European Directive, of hearing ability. Colonel Collins would not accept that it was a measure of hearing impairment, though the word impairment is used continuously throughout but, in my view, this distinction was nothing more than semantics, Colonel Collins did agree that under the army's own regulations, the Plaintiff would be regarded as being moderately impaired. However, it is to be noted that in the Irish Army's own regulations either for hearing ability or hearing disability measurement goes up to 8,000 hertz and not the 3,000 hertz as urged by the American Medical Association Standard. If the legislature wish the Courts to accept any specific standard then it is for the legislature to legislate to that end. It is not for the Courts to make law, it is for the Courts to interpret law and in the meantime to try cases on the evidence which is presented and that includes the Plaintiff's evidence and to assess as best they can that evidence and come to a verdict. I asked for written submissions in this case and they finally arrived on Wednesday 4 March. In the course of the submissions of the Plaintiff it came to light that a decision had been given by Mr Justice Barron in a case called James Bastick v The Minister for Defence & Ors, judgment was given on the 24 November, 1995. That case in which the present Defendant was a defendant was unappealed and therefore it is the law as it presently stands in this country. I quote from that judgment: 

"The question, so far as I am concerned, is not so much whether there is a hearing handicap or not. The question is, is the condition of the hearing such that it affects the quality of life. That said, it also seems to me to be important that there is no absolute standards because the Plaintiff would be entitled to damages even if he was at the upper range of normal hearing if that hearing was in fact less good than the hearing he had previously had. So when we were discussing whether his present hearing causes a handicap or does not cause a handicap, we are using the wrong base." 

Later on Mr Justice Barron said and I quote:- 

"The other thing which is quite clear from the evidence of Mr Kelly is if you have no handicap it does not mean your hearing is perfect. But there is a gap between the two things and so far as this Court is concerned it is dealing with the imperfections of hearing and the imperfections in hearing brought about by the cause of action." 

That case commenced in 1991. That is the law and I intend to follow that case. There are four comments I would like to make about it. 

1. It appears to me to set the law out accurately and indeed it is exactly the law which I have been applying in any of the cases which I have decided in this regard. 

2. Despite the fact that the Defendant was a party to that case, and apparently filed a notice of appeal on the 19 December, 1995 no further steps were taken in the appeal such as lodging the Books of Appeal, no stay was asked for in the High Court, no stay was asked for in the Supreme Court and I have been informed by Mr McCarten for the Plaintiff that the decree has actually now been paid and, therefore, it is difficult to see that the Defendant in this case was in any way seriously discontented with the decision. 

3. This case was not referred to in the initial submissions for the Defendant but was referred to in replies to the Plaintiff's submissions with a suggestion that because it was under "appeal", I should not follow it. In this regard, because it is a decision of the High Court and because I agree with it and because no real steps have been taken to prosecute the appeal by the Defendant, I intend to follow it. The appeal has now been withdrawn. 

4. It is well to note that according to the Dail Committee as reported in the papers 1,488 cases of the Army hearing cases have been dealt with to date. 1,405 of these were settled without admission of liability. Of the balance, namely 83 cases, 51 were either withdrawn or dismissed. Therefore, an award appears to have been made in only 32 cases. Of these 32 cases, in none, was an appeal taken to the Supreme Court which was pursued to a judgment. 

Therefore despite all the evidence given relating to handicap, disability or otherwise, the issue which this Court has to deal with his impairment or imperfection in hearing brought about by the negligence of the Defendants, if any, which affects the quality of life of the Plaintiff and this is the law in Ireland and as to what the American Courts say is a handicap or otherwise is not the law in this country. 

Mr Kelly's evidence is that the Plaintiff does not suffer from noise induced hearing loss and that his hearing is in the normal range for his age. This is based mainly on statistics produced by Mr Kelly and his interpretation of them and of the audiograms. 

He appears to ignore or discount the evidence of the Plaintiff as to the discomfort he suffers from tinnitus and to the disability or impairment which he has in relation to the conversations of other people. 

That is a luxury which I cannot indulge in as I must try cases in accordance with law on the evidence which I have before me and that includes, as it does in every case, the evidence of the Plaintiff, the demeanour of the Plaintiff and the impression as to veracity which the Plaintiff creates to the Court. 

I accept the present complaints of the Plaintiff and I accept that they interfere with his quality of life and that is particularly having regard to the tinnitus from which he suffers and having regard to that, I therefore prefer the evidence of Dr Flynn over that of Mr Kelly. I therefore make the following findings:- 

1. The Plaintiff is a truthful person who served in the army and was exposed to gunfire for a large number of years. 

2. The Defendant was negligent in failing at any time to provide the necessary ear protection to the Plaintiff which would have been reasonable to provide and which was designated to be provided by the Defendant's own regulations over a long period of time. 

3. I am satisfied that as a result of this exposure the Plaintiff has suffered impairment of his hearing. This produces difficulty in hearing during conversations and in addition he suffers from tinnitus which he finds extremely distressing. 

4. I am satisfied that the Statute of Limitations does not apply in this case as the Plaintiff was not aware that the condition of his ears was ascribed to the noise of gunfire until 1994, early 1995. I am particularly impressed by the Plaintiff's protestations that he is not deaf but that he has difficulty hearing and this is a distinction which is quite clear. There are many people whose sight is impaired but who are not blind. Under those circumstances, I will award the Plaintiff £20,000 damages. 

Lastly, I think it is necessary to say that each case that comes before these Courts must be tried individually. Each Plaintiff individually assessed, the evidence of each witness individually assessed and the grounds upon which each witness bases his opinions, particularly the expert ones, individually assessed. These must be measured against the law as it stands at the present moment and, as I have stated before in this judgment the Constitution provides that it is the Oireachtas who should make the laws.