High Court 

Gilroy v Minister for Defence, Ireland and the Attorney General

1996/2949 P

3 November 1998 

O'HIGGINS J: 

The Plaintiff is a fifty year old man and served in the Army from 1971 until October 1997 when he took early retirement. The Plaintiff claims damages for personal injuries, loss and pain. Negligence is not denied and liability is not an issue. 

In November 1994 when the Plaintiff went for annual his medical check-up he was told that he had damaged his ear. Prior to that time he was aware that his hearing was "not great" but he did not realise there was a serious problem. Shortly before being seen by Mr Fennell on behalf of the Army the Plaintiff thought that he had suffered injury. It has deteriorated since 1994. 

(a) He finds it difficult to be in crowd of even three or four as he would not be "in on" the conversation. 

(b) He has difficulty in conversing in groups. 

(c) He has to turn the television up loud in order to hear. 

(d) He has to have the radio off in the car because he cannot hear a person talking when the car radio is on. 

(e) He has a problem on the telephone with his left ear. The left ear is worse than the right. 

(g) He had a part-time temporary job in a public house for a few days around Christmas of 1997, but had to give it up because of his hearing. 

I accept the Plaintiffs evidence in all those matters. 

He also complains of a buzzing in the ear or tinnitus. He said he previously had it after firing on the range, but never thought much of it. His evidence was that he now gets it perhaps fifteen to twenty times a month, and it can last up to an hour and a half or longer and that perhaps ten times a month it might be sufficiently bad to make him get up out of bed in the night time. He said he had tinnitus for four or five years up to the time when he first saw Mr Fennell. He never complained about the tinnitus because he thought it was a normal thing. When seen by Dr Viani for the Defence in December 1997, he told her that he had some very slight tinnitus and it did not cause him trouble. Moreover, according to the report of Mr Savage Jones dated the 15 December, 1997: "Mr Gilroy describe his tinnitus as occurring twice per week for ten minutes; this not considered to be clinically significant". 

In my view the Plaintiff is exaggerating the extent of his tinnitus and I do not find his evidence on that point very convincing. If there was a significant problem he would not have told Dr Viani on specific enquiry that he had some "very slight tinnitus". 

Mr Doogan an audiologist and an expert witness gave evidence that the Plaintiffs hearing would put him in the Grade 5 Category, even in the 1997 Department of Defence Regulations. He would be restricted in the tasks which he could undertake. When he joined the Army his hearing was A1. He gave evidence that the Plaintiff would be above the referral level in the EU Health and Safety legislation. Using the formula in the Green Book he calculated the disability of the Plaintiff as being 6.56%. The Defendants' results showed a reading of 6.25% which is not significantly different. 

The Witness had a number of criticisms of the Green Book. He criticised the omission of the frequencies 3000 and 6000, which frequencies are normally used and are used in the EU Health and Safety Regulations. Furthermore, he commented that the formula in the Green Book resulted in a perceived percentage which is supposed to represent a person's hearing disability. He said that a disability of 3% or 6% might lead one to think that that is not very much. To that extent he pointed out that it is possible to be Grade 5 in the Army, and to have zero disability according to the Green Book calculations. The Witness also criticised the 20 decibel low threshold. He described the hearing loss in the Plaintiffs right ear as mild to moderate, but said that there was a severe high frequency hearing loss in the left ear. 

The merits or otherwise of the Green Book have been considered in a number of High Court decisions including James Green v Minister for Defence & Others [judgment of Mr Justice Lavan delivered the 3 June, 1998] and also in the case of Hanley v Minister for Defence and Others a judgment of Mr Justice Johnson delivered the 21 July 1998. At page 2 of the judgment of Mr Justice Johnson the following passage occurs with which I am in entire agreement: 

"The Green book was considered by Mr Justice Lavan in the case of Greene v the Minister for Defence, Ireland and the Attorney General and decided earlier this year. Mr Justice Lavan accepted the Green Book as a fair and adequate means of measuring disability and insofar as it goes, I completely accept Mr Justice Lavan's Judgment. I support the Green Book as a measure of disability at any given point in time. 

This view is supported by Professor Alberti and I do not think there is any great dispute about it. All formulae consist of a compromise of one form or another, and irrespective of what formula is produced there will be complaints about it. However, I have no hesitation saying that the Green Book appears to me to be a fair and reasonable means of calculating disability. 

However, I further think that it is correct in stating that the Green Book should be followed by all Courts unless there is specific reason in a given case for not so doing. 

However, the basic law of Ireland is not being changed by the Green Book or the legislation thereto attached, and that is laid down by Mr Justice Barron in Bastick v The Minister for Defence in November of 1995 in dealing with the question of compensation for impairment resulting in negligence says:- 

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

I myself stated in the Gardiner case and I quote:- 

'Each case must be tried individually. Each Plaintiff individually assessed and the evidence of each witness individually assessed and the grounds on which each witness bases his opinion particularly the expert ones individually'." 

Mr Justice Johnson went on to say:- 

"However the Green Book is not complete and there are some very serious gaps in it. The Court is obliged to take judicial notice of the Green Book and have regard to it and that is what I am doing. However, as I have stated the formula in the Green Book gives merely a still photograph of the impairment measured in disability terms of an insured party at any given moment, but in the formula there is no provision made for future deterioration." 

Mr Justice Johnson devised a scale of disability percentages on the basis of a 1%-10% disability and a 10%-25% disability. I agree with his approach and the figures mentioned and propose to adopt them in this particular case. The scale reads as follows. 
	
AGE	1%-10%	10%-25%	
30	£3,000	£6,000	
35	£2,750	£5,500	
40	£2,500	£5,000	
45	£2,250	£4,500	
50	£2,000	£4,000	
55	£1,750	£3,500	
60	£1,500	£3,000	

The appropriate age in this case is for a man aged forty-nine. On Mr Justice Johnsons scale £2,000 is the appropriate figure for a person aged fifty for each per cent up to and including the first 10% of disability, and £2,250 for each percentage for a person aged forty-five. On that basis I calculate the figure for a forty-nine year old man is £2,050 for the first 10% of a disability. On that basis the Plaintiff is entitled to £2,050 x 6.5 that is a sum of £13,325. However the Plaintiff is in addition entitled to damages for future disability. I am conscious that in the Hanley case Mr Justice Johnson did not use the Appendix I in the Green Book, and was persuaded to use ISO 199 in calculating future disability. This was on the basis that the information in Appendix A of the Green Book was adapted from ISO 7029 which related to a screened population. However, no such argument has been addressed to this Court. The criticism of the Appendix to the Green Book was based on its omission of the 3000 and 6000 hertz frequencies. In this case I propose to follow the figures in Appendix 1 to the Green Book. 

Using the approach illustrated by Mr Dougan for a loss aged sixty-nine, and accepting the present loss as being 6.5%. I have taken the disability at sixty rather than at sixty-nine both for convenience and to bring it into conformity with Mr Justice Johnson's scale. At the age of sixty the Plaintiff is likely to have a 10.5% disability as opposed to his present disability of 6.5%, that is an extra 4%. 

Appendix 1 Green Book loss at 60 (53.800) minus loss at 49 (729.304) = 24.6 

Applying formula in Green Book 

Right: 65+24.6 = 89.6 / 4 = 22.4-20 = 2.4 x 1.25 = 3 x 4 = 12 

Left: 185+24.6 = 209.6 / 4 = 52.4-20 = 32.4 x 1.25 = 40.5 

Add left + right and divide by 5 = 10.5% 

In accordance with the scale devised by Mr Justice Johnson, which I adopt, the Plaintiff is entitled to £1,500 per cent for 3.5% of that disability (that is up to and including a disability of 10%) and a sum of £3,000 for each percentage over 10%, in this case that is 1/2 per cent. 

The quantum for that 1/2 per cent is £1,500. Thus at the age of 60 the Plaintiff will be entitled to 
	
3 1/2% x 1,500	= 4,500	
1/2% x 3,000	=1,500	
	6,000	

As I have already said the Plaintiff is exaggerating the significance of his tinnitus and while in accordance with the standards of the Green book it does not constitute disability, it seems to me that it would be wrong to not compensate the Plaintiff for the degree of tinnitus which undoubtedly he suffers. I would award £2,000 in respect of the tinnitus. Furthermore, I am satisfied that because of the damage particularly to the left ear the Plaintiffs work prospects are somewhat diminished, and I accept his evidence in that regard. I consider a sum of £7,500 to be reasonable compensation on that heading. 

In total, therefore, the Plaintiff is entitled to: 
	
To date		6.5 x 2050	=	13,325	
	Tinnitus		=	2,000	
	Loss of opportunity		=	7,500	
	The present day equivalent of 6000				
	pounds at age of 60		=		

The parties can mention the appropriate figure to the Court.