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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Keogh v. Minister for Defence & Ors [2004] IEHC 2 (20 January 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/2.html Cite as: [2004] IEHC 2

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THE HIGH COURT

Record Number: 2002 No. 15812P

Between

Michael H. Keogh

Plaintiff

And

The Minister for Defence, Ireland and The Attorney General

Defendants

Judgment of Mr Justice Michael Peart delivered the 20^th day of January 2004:

Until his retirement from the FCA on the 26th June 2003, the plaintiff had been a member of that organisation for a period of 46 years since 1957. By the time he retired he had risen to the rank of Batallion Sergeant Major.

In these proceedings the Plaintiff seeks damages in respect of hearing loss and tinnitis, having been exposed, as is alleged in the Statement of Claim, "to the hazardously loud noise and detrimental effect of concussion/explosions from weapons which were the property of the defendants and which were fired, discharged and/or function in the proximity of the plaintiff", due to the nuisance, negligence and breach of duty and tresspass of the defendants. The particulars of such a nuisance, negligence and breach of duty and trespass are set out in the Statement of Claim. It is not necessary to set these particulars out in full detail, but in effect it is alleged that the defendants failed to provide the plaintiff with any, or any adequate, protective clothing or equipment to protect him from suffering these injuries, and that they failed to assess and/or evaluate the plaintiff's special and individual need for special ear protection, and continued to expose the plaintiff to excessively loud noise without any adequate ear protection, when they knew or should have known that such exposure would exacerbate any hearing loss and/or any injuries already sustained.

The quantum of damages has already been agreed between the parties, and the only issue in relation to liability is the issue now before this court for determination, namely whether the plaintiff's claimed is statute barred.

It appears that the plaintiff was, and probably still is a very good shot, and was a member of a shooting team, and is rightly proud of the very great number of medals and trophies which he has won during a period of over 30 years in shooting competitions. During his time in the FCA he took part in many competitions and many practice sessions over a period of about 40 years, and he was also a supervisor of shooting activity on the ranges. There is no doubt that he had a very great exposure to firing and the noise associated with that. It appears that around 1998 steps were taken by the defendants to take precautions in relation to hearing damage, whereas, prior to that, perhaps not so much notice was taken of the potential for damage to be caused to soldiers' hearing resulting from noise levels associated with firing weapons.

The court was referred to Training Instruction TI 1/96 which is dated 8th January 1996. The latter instruction included at paragraph 7 thereof a list of matters for which unit commanders were responsible. One of these states that personnel are to be informed of their hearing grade, where such grade is notated in their record (in the present case known as the "AF 30"), and of any other notation or entry relevant to hearing. Other instructions relate to making personnel aware of the degree of protection required, arising from the notation of that grade in the AF 30, and that they are trained in current instructions governing the care of hearing, and are tested in their knowledge of care of hearing procedures, and are issued with appropriate protection when going on range practices.

The court was also referred to Defence Force Regulation 146 which took effect on 6th October 1997, which relates to the medical classification of army personnel, and section 2 thereof contains a list of different headings under which army personnel are to be graded, one of which includes "keenness of hearing". It also contains a section headed "standards of classification". Grade 1, for example, relates to "personnel with no significant impairment or disability who are considered healthy and at most require only routine medical surveillance and unscheduled medical care".

Grade 2 relates to "personnel with minor impairments or disabilities who require medical supervision and/or treatment, where the medical supervision is at intervals of not less than 6 months, or where an unexpected interruption of treatment will not create an unacceptable risk to health."

Of significance in this case is Grade 4 which relates to "personnel with marked impairments, disabilities or medical conditions requiring close medical supervision by a clinical specialist."

The court was also referred to Training Circular TC 10/96. This circular states on the first page "TI 1/96 is hereby cancelled", and that this circular amends "the Care of Hearing Regime During Field Training Procedures".

Paragraph 3 thereof states "Current Health & Safety legislation requires personnel to be protected from impulse noise greater than 140 Db. Since Small Arms generate 160 Db approx and support weapons between 170 Db and 185 Db all personnel must be protected during field training." It sets out in some detail what steps are to be taken in order to achieve effective care of hearing of Defence Force personnel, and the strategy involves education, protection, procedure and supervision. Under a heading "Hearing Conservation System Stage" it states as follows: -

"16 Personnel are individually classified by stages. Their stage is recorded in their LA 30. The protection requirements for each stage and for each activity are set out below."

In the present case the plaintiffs AF 30 form is the equivalent of the "LA 30" just referred to. This form is the plaintiff's medical record.

There is then set out a number of categories or stages. Of relevance in these proceedings are two such stages namely H2 and H4.

H2 refers to a category of hearing loss described as "early warning on hearing loss. No NIHL". NIHL means "noise induced hearing loss". In this category it is noted that "all" training activity is permitted, but that double protection must be worn, additional instruction must be given on the use of protection, and there must be six-monthly hearing checks.

H4 refers to a category of hearing loss which is described as "moderate NIHL or age induced HL". In this category the permissible training activity includes all small arms, supervising the firing of weapons, except Mors, Recoilless Anti-tank weapons, and it is particularly noted that "firing Sp weapons not permitted". In this category double protection must be worn, additional instruction on protection must be given, and annual hearing checks must be made as laid down by the medical corps.

It is clear that H4 is a category of more serious hearing loss than H2, and this is of importance in this case.

The plaintiff has stated in his evidence that he was requested by a senior officer in 1998 to have a hearing test done, and that an appointment was made for this to be carried out on the 15th December 1998 at Logs Base Hospital, also known as St. Bricans. He attended for his appointment, and the test was carried out. The result of the test was given to the plaintiff after the test been carried out on 15th December 1998. He was given one copy of the test result and was told to return it to his unit commander. He did this but before handing over the copy to his unit commander, he made a copy for himself and kept it at home. This test showed that he was in the category known as H2, which I have already referred to above and which indicated that he was in a category which indicated "early warning on hearing loss. No NIHL", and it allowed him to fire all weaponry, although it did require that double protection be worn, and that he receive additional instruction on the use of protection, and to have six-monthly checks.

As far as the plaintiff was concerned this meant that he did not have any significant problem with his hearing at that stage.

On 16th November 1999 he went for his next annual hearing check. His commanding officer made an appointment for his examination and he attended for this, just as he had done in December 1998. It appears that on this occasion he was not handed a copy of the test result after the test had been completed, because the printer at the hospital was not working properly that day, but the operator said that he would send on the test result to his unit. The plaintiff went back home. His evidence was that he never saw any copy of that test result. In the years 2000 and 2001 he attempted to make his annual appointment for a hearing test, but apparently due to pressure of work at the test centre it was not possible for him to be tested during those years.

However, on 15th October 2002 the plaintiff attended for his annual test and on this occasion the previous test results were printed out automatically and it was only at this stage that he saw the result of the 1999 test, which was the test they were not able to hand him after it was done due to the failure of printer to which I have just referred.

The 1999 test showed that as of that date, namely 16th November 1999, the plaintiff was then in the hearing loss category referred to as H4, which is a category denoting a more significant degree of hearing loss that H2. As I have already set out, the H4 category denotes "moderate NIHL or age induced HL", and permissible training activity is restricted to small arms fire, and supervising the firing of Sp weapons except those which I have already set out, and the level of protection for this category is stated to be "double protection, additional instruction on protection, annual hearing checks as laid down by medical corps".

On hearing that he was now in the H4 category of hearing loss, he was very upset that he had not been informed of this fact ever since he had that test carried out on 16th November 1999. He had assumed the he was still in the category H2 and that he did not have a significant problem. Shortly after the 2002 test was carried out on 15th October 2002 the plaintiff consulted his solicitor and a plenary summons was issued on the 10th December 2002. The date of issue of that summons is therefore about three weeks after the expiration of three years from 16th November 1999 which is the date of the 1999 Test, the results of which the Plaintiff says he was never informed of. The plaintiff says that he had no reason to suspect that he was in a worse category in 1999 since he was not conscious of his hearing being any worse than it had been in 1998.

The plaintiff also gave evidence of his employment history. It appears that he worked as a draughtsman in a firm of structural engineers until 1974 and then joined the IDA where he remained for a period of 24 years. None of these jobs involved any excessive noise which might have contributed to any hearing loss.

He also gave evidence that no hearing protection was provided in the F C A until the mid-1980s when earplugs were supplied. Subsequently an improved type of ear plug was supplied, and later again, an ear protector known as a Peltor Ear Protector was supplied which covers the ears more completely than a plug, which is merely inserted into the ear.

In cross-examination, it was put to him that he had held a high rank in the FCA and that he was an expert marksman, and that he spent a very great amount of time on FCA activities and that he loved that activity. He had no hesitation in agreeing with all this. It was also put to him that he would have been very well aware, from the publicity concerning army deafness cases during these years, that hearing problems were associated with firearms, and that in fact he had himself experienced some hearing difficulties in the 1980s. He confirmed that in the late 1980s he had experienced some tinnitis, but that it had gone away, but also that it had returned in a mild form in the mid-1990s and was now permanent. He also stated that in the mid-1990s he had experienced some hearing difficulties when in a crowded room. These problems had been very mild in the 1980s and were intermittent, whereas in the 1990s they had got worse.

It was also put to him in cross-examination that at the time of his test in 1998, his duties included going onto and supervising activity at the firing ranges, and included the distribution of hearing protectors to those on the firing range and that he was well aware that problems could be caused during firing activity. The plaintiff stated that he was aware that tinnitis was associated with that activity, but not hearing loss. It was also put to him that he must have known that problems from firing on ranges were being caused to soldiers, and therefore that since he was suffering from some element of tinnitis, he must have known that he was at that time suffering hearing damage. The plaintiff stated that any incapacity that he felt he had was simply down to his age. He re-iterated that he was not aware at that stage that he was in Category H4. As far as he was concerned, he was in the H2 category and that this category was understood by him to mean that any loss he had was not significant. He also stated that if he had known at that stage that he was in category H4, he would not have gone on to the firing range. It was put to him however that it is clear that in 1999 he knew that things were getting worse and yet he did not issue any proceedings for damages within three years and that therefore he was now out of time. It was put to him also that he was well aware that army personnel and FCA personnel had brought claims in respect of hearing loss and that he was well aware that he could bring a claim, but he said that as far as he was concerned he was in the H2 category which was in respect of an insignificant hearing loss, and that those who he was aware of who had brought claims were H4 or worse. It was also suggested to him that the reason he had made a copy of his 1998 result showing H2 was because he might have a claim but he denied this.

It was also put to him that the defendants would say that in a situation where the printer is not working after a hearing test is done, the results are always given verbally and it was put to him that this is what happened after the test was carried out on the 16th November 1999, but the Plaintiff categorically denied this.

Mr Dermot Dougan, an audiologist, gave evidence on behalf of the plaintiff. He had not carried out any test himself on the plaintiff but had analysed the tests which had been done. He stated that the plaintiff had moderate to severe high frequency hearing loss, and that it was worse in the left ear than in the right. He stated that the plaintiff was severely compromised in group situations. He was asked whether the Plaintiff himself should have been able to notice a difference in the condition of his hearing between 1998 and 1999, but he stated that a person can become habituated to a deterioration over a period of time, but it was very much a matter of conjecture. It was suggested to him in cross-examination that the plaintiff had problems with his hearing going back perhaps 15 years, and that the damage may have been done in earlier years when no ear protection was worn. Mr Dougan stated that one could argue that damage could have been done in the early years or that it was done only in later years. Some other evidence was given by Mr Dougan and also by Mr Niall Lydon, but nothing of any particular relevance or significance emerges from that evidence.

The essential point in this case for the purpose of determining the issue before Court, namely whether the plaintiff has issued his proceedings outside the time for doing so under the Statute of Limitations, is whether the plaintiff ought to have known as of the 16th November 1999 or earlier that he had a significant hearing loss for which he was entitled to be compensated.

The plaintiff states that until 2002 he was only aware that he was in the H2 category, and that as far as he was concerned this amounted to an insignificant level of hearing loss, and that this factor is borne out by what is stated about the different categories in the Training Circular, TC 10/96 to which I have referred. If he had become aware, and if the defendants were aware that he was in fact in the H4 category, this would have triggered the requirement contained in that circular as to the additional precautions to be taken by the defendants in respect of a H4 category person, and he himself would have taken action in respect of the deterioration in his hearing, and would have commenced proceedings at that stage to recover compensation. However, in the absence of that knowledge, and in the knowledge that he had only insignificant hearing loss, he took no such steps. It is submitted on behalf of the plaintiff that the defendants' own negligence produced the situation in which he was left in ignorance of the fact that he had moved from the H2 category into the H4 category, and that the defendants cannot now rely on what is their own negligence in failing to supply him with his test result, and thereby contend that his claim is now statute barred.

Section 2, subsection (1) of the Statute of Limitations (Amendment) Act, 1991 provides as follows:

"2. - (1) for the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person's state of knowledge (whether he is the person injured or a personal representative or dependent of the person injured) references to that person's date of knowledge are references to the date upon which he first had knowledge of the following facts:

(a) that the person alleged to have been injured had been injured,

(b) that the injury in question was significant,

(c) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,

(d) the identity of the defendant, and

(e) if it is alleged that the act or omission was that of a person other than the Defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;

And knowledge that the acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant."

Section 2, subsection (2) provides as follows:

"for the purposes of this section, a person's knowledge includes knowledge which he might reasonably have been expected to acquire -

(a) from facts of observable or ascertainable by him, or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek."

Section 2, subsection (3) provides as follows:

"not withstanding subsection (2) of this section -

(a) A person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice; and

(b) a person injured shall not be fixed under this section with knowledge of facts relevant to the injury which he has failed to acquire as a result of that injury."

I am satisfied that the plaintiff's state of knowledge at all relevant times was that the condition of his hearing was H2 , and that he became aware of this fact on the 15th December 1998 after the hearing test had been carried out on that date. I am also satisfied that under Training Circular TC 10/96 that category of hearing quality is reasonably interpreted as being not significant, since it is defined as being an early warning of a hearing loss but with no noise induced hearing loss related thereto, even though I am informed that in fact H2 is a compensatable category of loss. In addition, all training activities are allowed. This is in contrast to the H4 category as I have already referred to, and that category does represent a significant level of injury, and one where there is some limitation of training activity imposed under the Training Circular.

What happened in this case quite simply is that following the annual hearing test undergone up by the Plaintiff on 16th November 1999, he was not informed of the result, because the printer on which that result would have been printed for him was not working properly. I am sure that the authorities fully intended to let him have his test result as soon as the printer came back into service, but for whatever reason, this was not done and the plaintiff thereafter remained in ignorance of the fact that between the 1998 test and the 1999 test, his hearing had deteriorated to the point where by the end of 1999 he was in the H4 category. As it happens the Plaintiff attempted to have his hearing test done, on the normal annual basis, both in the year 2000 and in the year 2001, but because of pressure of work on those persons carrying out the tests, he was unable to get an appointment in order to have his audiogram carried out. This meant that it was not until October 2002, when he had a hearing test carried out, and when he received his print-out of that test, that he saw that in fact in 1999 he was in the category of H4. Unfortunately, it also appears that the plaintiff's medical file, the AF30, has been lost by the defendants.

I have no doubt that if the defendants had, in accordance with their normal practice, given the plaintiff the result of his test on 16th November 1999 showing that he was now in the category of H 4, that the defendants would have taken it upon themselves to comply with the requirements of Training Circular TC 10/96, and the Plaintiff himself would have taken appropriate steps in relation to the fact that he was now in a worse category than previously. The defendants were in my view obliged to notify the plaintiff of the result of his test in November 1999, as it contained information which he was entitled to be aware of in his own interests, but even if they failed to notify him of the result of that test, they themselves must be deemed to have known the result of the test, and accordingly they must be regarded as negligent in not taking the necessary steps with regard to the plaintiff's well-being, as required by their own regulations.

It also follows in my view that the defendants cannot rely upon the delay between 15th December 1998 and 15th October 2002 in order to successfully plead the Statute of Limitations against the plaintiff. To do so would enable the defendants to benefit from the consequence of their own negligence and that could not be just.

The defendants have pointed to the fact that the plaintiff was a very experienced member of the FCA, that he took part in many shooting competitions over the years, and had risen to a senior rank which involved the supervision of others on the shooting ranges, and they submit that it is reasonable that this court should therefore assume that plaintiff was very well aware of the risks to his hearing resulting from his participation in shooting competitions and exercises over such a long period of time, and that he ought to have been aware that his hearing would have deteriorated, and should have taken his own steps in that regard, regardless of any steps which the defendants themselves might have been obliged to take.

They also make the point that in his evidence, the plaintiff said that he in fact did not notice any difference between the quality of his hearing in 1998 when he was H 2, and the quality of his hearing in 1999 when he was H4. They contend that the category H2 is a compensatable category of hearing loss, and that he ought to have commenced proceedings then in respect of his hearing loss.

There can be no question but that the plaintiff, as an experienced member of the FCA, would have been aware of the fact that a person's hearing can be damaged by exposure to arms fire, especially over a prolonged period of time. He would also have been fully aware from 1998 onwards that many members of the defence forces were taking proceedings to recover damages in respect of hearing loss, but it is also quite clear that the plaintiff had been tested in 1998 and was shown to be in the category of H2, which is not a category indicating a significant level of hearing loss. In my view the plaintiff was entitled to assume, since he had been tested again in 1999, that there was nothing adverse arising as a result of that test, even though it would have been prudent of him to have chased up a copy of the test result. However his failure to do so cannot absolve the defendants from their responsibilities to the plaintiff. Even if they did not give him a copy of his test result, they must be fixed with knowledge of that result, and they cannot benefit from what must be regarded as their own negligence in failing to either notify him of the result, or take precautions with regard to his participation in fire arms activity which would have been appropriate for a person in the category of H 4. The Plaintiff in his own evidence has stated that he had not noticed any deterioration in fact in his hearing between the time he was H 2 and becoming H 4, but Mr Dermot Dougan, when giving evidence on behalf of the plaintiff, stated that there can be an incremental progression in loss of hearing to which a person can become habituated to. In other words the deterioration is so gradual that the person concerned does not notice its deterioration, unlike a situation where the deterioration might be sudden.

For the purpose of deciding the issue before me, namely whether the plaintiff's claimed is statute barred, I am satisfied that the plaintiff first obtained knowledge that his injury was "significant" when he was informed on 15th October 2002, for the first-time, that he was in the H4 category of hearing loss. That is the date therefore from which time began to run against the plaintiff for the purposes of section 2 of the Statute of Limitations (Amendment) Act, 1991.

As far as section 2, subsection (2)(a) of that Act is concerned, the plaintiff cannot have been expected to know of the deterioration in his hearing from facts observable or ascertainable by him. He has stated in evidence that he did not notice any deterioration, and Mr Dougan has said that that is reasonable, since any such deterioration would have been gradual and the plaintiff could have habituated to it.

In relation to subsection 2 (b) of section 2, I am not satisfied that it is reasonable that the plaintiff should have sought medical advice or other appropriate expert advice in the circumstances where he did not notice any deterioration in his hearing, and in circumstances where the defendants failed to discharge their obligation to the plaintiff to notify him of the actual deterioration which had occurred in his hearing.

I am satisfied that the claim herein is not statute-barred.

For the sake of completeness, I am not satisfied that the plaintiff has been guilty of any contributory negligence arising either from his failure to properly wear ear protection which was provided or from his failure to take any precautions for his own safety.