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Smith v. Minister for Defence [1998] IESC 36 (4th November, 1998)
THE
SUPREME COURT
RECORD
No: 153/1997
O’FLAHERTY
J
LYNCH
J
BARRON
J
BETWEEN:
MICHAEL
SMITH
PLAINTIFF/RESPONDENT
AND
THE
MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS/APPELLANTS
JUDGMENT
DELIVERED THE 4TH DAY NOVEMBER 1998 BY LYNCH J [Nem. Diss.]
1. This
is an appeal by the Defendants/Appellants against a judgment and order of the
High Court (Johnson J) of the 20th February 1997 whereby the
Plaintiff/Respondent was awarded £20,000 damages together with costs
against the Appellants. The Plaintiff’s claim was that he suffered
hearing loss by being exposed to the noise of gun fire without adequate ear
protection while serving in the Army for upwards of twenty years before he
retired in 1992. A full defence was filed in the course of the pleadings, but
at the trial it was conceded that the Respondent was exposed to gun fire noise
without adequate ear protection and the only issue between the parties was
whether or not such gun fire noise caused any hearing loss to the Respondent.
2. The
Respondent was born on the 28th September 1941. He served in the Army from 1958
to 1961. He rejoined the Army in 1971 and subsequently attained the rank of
sergeant but he
2
had
to retire in 1992 due to severe diabetes unrelated to the matters the subject
of this action. He is a married man with three teenage children.
3. During
his time in the Army the Respondent was exposed to gunfire noise to an above
average extent including training other members in the use of firearms. The
learned trial Judge delivered his judgment as follows:
“The
plaintiff in this case makes a claim in respect of deafness which he now
suffers. The case had been complicated by a report given by the
plaintiff’s own specialist that in 1994 he was not suffering from any
hearing disability and his hearing was about normal and that was done on the
audiogram upon which it is now claimed that he is suffering from noise induced
disability and that his present condition was produced by noise induced
disability.
Mr
Kelly, on the other hand, indicates that his present condition is normal for a
man of his age. That is, it is the mean and median of a man his age. Therefore
Mr Kelly’s evidence today is in agreement with the statement of Mr
Fennell back on the 5th of July 1994 and is based on the same audiogram. That
being so, I now look to the plaintiff’s evidence.
The
plaintiff’s evidence is that he is now suffering from hearing
difficulties. He is suffering from hearing difficulties which he says make it
inconvenient
for him to mix socially with numbers of people, putting up the television,
unable to speak to his wife and unable to answer the telephone. He says this
came on suddenly.
3
At
one level, the plaintiff impressed me because he seemed an honest man and I
accept that he may have some difficulties. However, I hold as a fact that he is
exaggerating dramatically, particularly with regard to his statement with the
telephone. However, I accept that he may have suffered and has suffered a
regression in his hearing and I think Mr Sweetman may very well be right, that
he began to appreciate it.
Doing
the best I can, and with a great deal of doubt, I accept that he may have had
hearing better than that which he would have anticipated having for his age and
that this may have been affected by the excessive amount of gunfire to which he
was exposed.
However,
I find as a fact that whereas his hearing has been diminished as a result of
gunfire, that it has been reduced to the average and I hold as a fact and I
accept Mr Kelly’s evidence that at the present moment his hearing is the
average hearing for a man of his age. Therefore it is anticipated that in the
future he will continue as a man of his age and I will award him a figure of
£20,000 damages for loss of hearing.”
4. The
Appellants served a notice of appeal which so far as material reads:
"
........... For an order that the whole of the said judgment or order and in so
far as same relates to the question of general damages for pain and suffering
be set aside and in lieu thereof a new trial of this action be ordered or such
further and other
4
order
or orders as to this honorable Court deems fit together with a further order
that the costs of this appeal be paid to the defendants/appellants.
And
take notice that the following are the grounds of the appeal.
1 That
there is no or no sufficient evidence upon which the learned trial judge could
find that the plaintiff was entitled to the sum of £20, 000 by way of pain
and suffering.
2 That
the said sum of £20, 000 awarded to the plaintiff in respect of general
damages was excessive and exorbitant.
3 That
the award of £20, 000 by way of general damages was against the evidence
and the weight of the evidence.”
THE
SUBMISSIONS
5. Mr
Butler Senior Counsel for the Appellants submitted:
1.
The learned trial Judge found as a fact that the Respondent enjoyed average or
normal hearing for a man of his age, which at the date of trial was fifty-five
and a half years.
5
2.
There was no evidence of the standard of the Respondents hearing before his
exposure to gunfire noise. There was no evidence that it was better than
average before such exposure to noise.
3.
In the absence of any such evidence, even if it could be inferred that there
was a loss of hearing, it is incapable of measurement and a fortiori incapable
of monetary measurement.
6. Mr
Antoniotti Senior Counsel for the Respondent submitted:
1.
The learned trial Judge found that the Respondent’s hearing was above
average before exposure to gunfire noise.
2.
There is never a pre-army hearing test of any nature. In the absence of such a
test the learned trial Judge has to assess the witnesses and especially the
particular claimant and if the claimant has been exposed to more than normal
gunfire noise (as was the Respondent) the learned trial Judge is entitled to
infer damage causing hearing loss.
3
There was evidence that the Respondent had suffered noise induced hearing loss
and the learned trial Judge was therefore entitled to infer that, as his
present hearing was average or normal, his hearing before exposure to such
noise must have been above average or normal.
6
4.
In the circumstances the learned trial Judge was entitled to award damages as
he did for the reduction in hearing from above average or normal to merely
average or normal.
CONCLUSIONS
7. It
must first be noted that the appeal to this Court is against the amount of
damages only and the order sought from this Court is an order for a new trial.
No order is sought for a dismissal of the action on the basis that the learned
trial Judge ought to have awarded no damages.
8. If
the learned trial Judge accepted that the audiogram referred to in the first
two paragraphs of his judgment quoted above indicated some noise induced
disability (which he does not clearly find one way or the other) then there was
evidence from which he might infer that the Respondent’s hearing was
above average before being subjected to gunfire noise. He did so infer
“with
a great deal of doubt”
and
despite his finding that the Respondent was
“exaggerating
dramatically”
.
But there certainly was no evidence of the extent to which the
Respondent’s hearing was above average before such exposure to noise and
in the absence of any way of measuring that extent there is no way of measuring
the appropriate damages. It may be that the sum of £20,000 measured by the
learned trial Judge is far too little or far too much or just right: but there
is no way of having any real idea at all of which of these possible results
would be the correct one.
7
9. This
case was heard before the passing of the Civil Liability (Assessment of Hearing
Injury) Act 1998. In the absence of the assistance afforded by the 1998 Act and
the report therein referred to there really was no way of measuring a figure in
this case for damages which the Court could be reasonably satisfied would be
fair, just and reasonable as between both parties. If the case is sent back to
the High Court for retrial the Act of 1998 will apply to such retrial and the
report referred to in the Act will be available to assist the High Court Judge
in arriving at a figure (if any) which he can be reasonably confident is fair,
just and reasonable in all the circumstances of the case. I have said
“if
any”
because
I want to emphasise that just because a person has been in the Army and has
been exposed to gunfire noise without adequate ear protection does not mean
that that person is automatically entitled to damages. The onus is on such
person to establish that any hearing loss (assuming that there is such) was
caused by such exposure to gunfire noise and not by other causes such as the
normal ageing process or trauma or excessive noise extraneous to his army
service. In all the circumstances of this case and for the foregoing reasons I
would set aside the award of damages and would remit the case to the High Court
for retrial.
© 1998 Irish Supreme Court
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