THE SUPREME COURT
No. 237/98
Hamilton, C.J.
Denham, J.
Keane, J.
Murphy, J.
Lynch, J.

BETWEEN
KEVIN HANLEY
PLAINTIFF/RESPONDENT
AND

THE MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS/APPELLANTS

[Judgments by Denham J., Keane J. and Lynch J.; Hamilton C.J. and Murphy J. agree with Keane J.]

Judgment of The Hon. Mrs. Justice Denham delAivered the 7th day of December, 1999

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This is an appeal by the defendants/appellants (hereinafter referred to as the defendants) against a judgment of the High Court (Johnson, J.) delivered on 21st July, 1998, [1998] 4 IR 496. No issue of liability arose in the High Court or on this appeal. This is a case of assessment of damages for the plaintiff/respondent (hereinafter referred to as the plaintiff) as a result of the personal injuries which he suffered due to the admitted negligence of the defendants in failing to supply him with adequate ear protection during his employment in the Defence Forces. The plaintiff was born on 24th April, 1963. He is a married man. He joined the Defence Forces in 1980 and he continues to serve in the army.

It was agreed by the parties that the plaintiff suffers a 7% disability at the moment, using the formula provided for in the Green Book. This formula was introduced by Civil Liability (Assessment of Hearing Injury) Act, 1998. The Green Book was considered in Greene v. The Minister for Defence [1998] 4 IR 464 by Lavan, J. who accepted it as a fair and adequate means of measuring disability. The learned trial judge in this case accepted that the Green Book is a fair and reasonable means of calculating disability at a given point in time and that the Green Book should be followed by all courts unless there is a specific reason in any given case for not so doing. However, he continued at page 500:

“... 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 injured party at any given moment, but in the formula there is no provision made for future deterioration caused by the combination of noise induced hearing loss and age related hearing loss.”

As to a formula for age related hearing loss he referred to the evidence of Dr. Flynn, Professor Lutman and Professor Alberti and was satisfied that the correct table to take and

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base on which to work is of an unscreened panel such as the one which appears in Annex 2 of ISO 1999 at page 11. He stated at page 501:

“... Professor Lutman pointed out at p. 6 of the said ISO 1999 that there was a formula for calculating the probable advance on an unscreened population of the noise induced hearing loss and age related hearing loss. This database and this formula, to my mind, are the correct ones which should be adopted and I intend adopting them in this case.

To do anything else is merely to speculate. In my view if one has a formula worked out scientifically then it will give one as best one can a reasonably accurate prognostication as to what the situation will be, and what the condition of the plaintiff will be in the future.”

Having regard to the formula adopted the learned trial judge held that the plaintiff will have a cumulative 20% hearing disability at the age of 60. He took that 20% figure for the purpose of assessing damages, which figure is made up of a combination of noise induced hearing loss and age related hearing loss which it is anticipated the plaintiff will have when he is 60. As to the assessment the learned trial judge held at page 501:

“The plaintiff has suffered a 7% loss to date. Utilising database in the ISO 1999 together with the formula contained at para. 5.1 of the said ISO, the evidence indicates that at the age of 60 to 61 he will have a hearing loss of 20%. The plaintiff in addition complains of tinnitus. In my view it is not severe tinnitus. It is moderate tinnitus and I will allow a figure of 2% in addition for the tinnitus which he is suffering.”

He then assessed damages allocating moneys for each degree of disability. The learned trial judge determined that he would grant £3,000 per one per cent of disability to a person at the age of 30. This scale ranges down to £1,500 per one per cent of disability when the injured person is 60 years of age. For percentages of damage between 10% and 25% the learned trial judge determined that the award per cent of disability would range from £6,000

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at the age of 30 to £3,000 at the age of 60. The scale is set out in Schedule A which is attached to this judgment.

Based on this scale the learned trial judge calculated the damages for the plaintiff. The 9% disability suffered at the age of 35 being £2,750 x 9 equals £24,750. As to the age .related disability of 13% which it was determined the plaintiff would suffer when he is 60 years of age, the learned trial judge calculated also on his formula; the tenth degree of disability at the rate of £1,500 plus the remaining disability at £3,000 per percentage. Thus, 12 x £3,000 is £36,000, which taken with the £1,500 totals £37,500. As this latter figure is the calculation of the figure which would be due to the plaintiff when he is 60 years of age on this formula, the learned trial judge then required an actuarial calculation to reduce the figure to the appropriate sum to be paid out at that time by the court, which was determined at £15,825.

Other matters concerned the learned trial judge, including a reduction in employment opportunities and promotion for the plaintiff. For these matters he allowed £10,000.

Thus, the total award on the assessment of damages was:

For the 9% noise induced hearing loss presently suffered by the plaintiff	£24,750	
To compensate the plaintiff for 13% age related disability anticipated at 60 years of age (which, added to the noise induced disability would create a disability of 22%) £37,500, actuarially reduced to	£15,825	
To loss of opportunity of serving in Lebanon, promotions and other additional duties	£10,000	
Total	£50,575	

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Appeal

The defendants have appealed against the order of Johnson J. There is no appeal against the facts found. The finding of the noise induced hearing disability at 7% and the tinnitus at 2%, being a total of 9% disability, is taken as a proper application of the Green Book. Owing to an error by the defendants an incorrect figure was given to the High Court as to the future age related hearing loss of the plaintiff. However, the defendants did not contest the figure of 13% in this case in the circumstances.

The kernel of the appeal is against the formula used by the learned trial judge, on the conversion of the disability into a sum of money, as being excessive. The defendants requested the High Court to adopt a formula which would create a just decision for the plaintiff and would be a formula applicable to similar cases. The learned trial judge determined a formula to assist the defendants. However, the defendants appeal against the formula determined and submit that its application would lead to excessive awards.

On this appeal there are two issues:
1.	Is it appropriate for the court to confirm a formula being a proposed scale of damages for the injury of deafness arising in similar cases?

2.	(a)	Was the learned trial judge correct in his formula?
(b)	If the answer is in the negative would the scale of damages proposed by the defendants be appropriate? If it would not, what would be a just formula?

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1.	Is it appropriate for the court to confirm a formula being a proposed scale of damages for the injury of deafness arising in similar cases?

There are many thousands of ‘army deafness’ cases proceeding through the courts. The Civil Liability (Assessment of Hearing Injury) Act, 1998 provided for judicial notice to be taken of a report to the Minister for Health and Children by an expert hearing group, for courts to have regard to certain matters contained in that report in certain circumstances and for connected matters. This Report, the Green Book, establishes a fair and adequate method of calculating hearing disability. In effect it provides a formula for the assessment of hearing handicap.

Johnson J. held that the formula established by the Green Book was incomplete as it did not provide for the future position of the plaintiff when age related hearing loss was combined with the noise induced injury. Counsel for the defendants acknowledged that account should be taken of future age related hearing loss when calculating damages for noise related hearing loss.

The matter for determination relates to a formula for assessing damages. A formula having been obtained through the Green Book for the assessment of hearing disability it is now a question of whether it is appropriate to establish a formula for determining the quantum of damages for hearing loss in similar cases. It is of fundamental importance that the administration of justice be fair. This includes the concept that there should be consistency in similar cases in decision making, including the determination of awards of damages. The constitutional guarantee of equality (Art. 40.1) requires that persons be held equal before the law. There is an obligation of equal treatment. Thus, similar cases should be determined in a constant and foreseeable pattern. The concepts of justice and fairness

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demand that the system not be a lottery. Also, if a formula is in place there is less reason for delay and injured parties should be able to move to a conclusion in a speedy process.

It is appropriate to adopt guidelines in relation to damages to enable the decisions of the courts in similar cases be consistent. It is appropriate to have a formula for converting similar injury into damages. However, whilst a general formula is appropriate for assessing the general situation a court retains the power at common law and under the Constitution to make a fair decision for each particular case. Damages are intended to represent fair and reasonable monetary compensation for pain, suffering, inconvenience and loss of pleasures of life which the injury has caused to the plaintiff in the particular case. A formula is a guide line for a judge in similar cases from which a judge may depart in a particular case if the specific circumstances so require to achieve a just result.

2.	(a) Was the learned trial judge correct in his formula?

The formula adopted by the learned trial judge, set out in Schedule A, works from a base figure of £1,500 for one per cent of disability at the age of 60 and this is doubled when the disability is in the 10% - 25% range. The court was informed that the going rate for damages for complete deafness is in the range of £125,000 to £175,000 i.e. approximately £150,000. This may have been the basis for the original determination of £1,500 per one per cent of disability which can be inferred from Greene v. Minister for Defence [1998] 4 IR 464 and which was adopted by Johnson J. in this case as part of his formula.

However, when the scale proposed by the learned trial judge is applied it creates a system of excessive awards. The base of £1,500 for a person aged 60 for a disability in the range 1% to 10% is too high and the doubling of the sum for disability between 10% and 25% would lead to inordinate awards. I have come to this conclusion having considered the

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figures and the examples given by counsel in court. Applying the learned trial judge’s formula sums awarded would be excessive; excessive when analysed against the sum considered to be the going rate for total deafness. In fact such awards would be wholly out of proportion to the injury suffered. Consequently, I am satisfied that the formula suggested by the learned trial judge was incorrect in that it would give rise to excessive awards.

On the second day of the appeal in this case the defendants, at the request of the Supreme Court, presented a Department of Defence Hearing Loss Cases Proposed Scale of Damages. It was on two sheets. The first sheet, in a column headed “Age”, gave ages in five-year spans from 25 to “60 and over”. The second column related to each percentage point of disability in the range from 1% to 10% (including future ageing in brackets). The third column related to each percentage point of disability from 11% onwards (including future ageing in brackets). A copy of this sheet is set out in Schedule B, Part 1, attached to this judgment. The second sheet was an enlarged sheet wherein the left hand column headed “Age” ran from 25 to 60 and the line across the top related to percentage points of disability from 1 to 25. A copy of this second large sheet is set out in Schedule B, Part 2 and Part 3, attached to this judgment. The proposed scale of damages of the defendants is thus set out.

The sums of money on the defendant’s proposed scale, in Schedule B, include a sum for future ageing. All parties now agree that there should be an element of damages for the future age related disability. On this formula the base figure per percentage point of disability in the range 1% to 10% for a 25 year old is £1,625 and of this sum £438 is to allow for future ageing. On the other hand the base figure per percentage point of disability for a 60 year old and over is £750, with no figure for future ageing. It was the State’s position that this was because at that age the noise related hearing loss graph and the age related hearing loss graph are coming together.

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As previously stated I am satisfied that the formula proposed by the learned High Court judge, Schedule A, would lead to excessive awards. In addition, there is another negative factor in the High Court formula. Under the formula proposed by the High Court three calculations are necessary (one for the present, one to include future ageing, and one ‘being the actuarial calculation on compensation today for future loss). Under the Department of Defence proposal, Schedule B, there is one calculation which includes future ageing as a component. Such an approach, involving one calculation only, is to be recommended.

Looking at the proposed scale of the Department of Defence, examples can be considered. Thus, a thirty year old person with a twenty five per cent hearing disability, under this scale the appropriate sum would be £43,125, which includes a sum for future ageing. Other examples also show it to be an appropriate scale. Thus, a 35 year old with a 9% disability would receive £12,375; a 50 year old with an 18% disability would receive the sum is £20,000; a 25 year old with a 20% disability would receive the sum of £36,563, a 40 year old with a disability of 11% would receive the sum of £14,063.

I am satisfied that the formula proposed by the Department of Defence is an appropriate guideline to determine in a just way similar cases. Whilst the formula may be adopted as a guideline courts retain their discretion to make awards of sums appropriate and fair in specific cases to a particular plaintiff in light of the particular circumstances and to adjust awards accordingly. However, there should be a specific reason in a case for not following the guidelines.

In addition to the sum the subject of these guidelines the court may include other issues. Thus, in this case the learned trial judge included a £10,000 award for loss of earnings for the future which included loss of opportunity to serve in the Lebanon, loss of promotions and other losses. This figure was not contested on this appeal.

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It may well be that in the operation of the guidelines minor amendments may have to be made. Thus, it may be found that at the extremes of the guidelines (the less serious injury, the more serious injury, the older plaintiff or the younger plaintiff) that there may need to be flexibility and some fine tuning.

Conclusion

The court was informed that in this case the sums awarded in the High Court had been paid out. Thus, the issue on the appeal is the formula; the guidelines. I conclude that it is fair and just to adopt a formula or guidelines to enable a consistent level of damages be awarded in similar cases. This is subject to the general principle which requires justice to be applied in all cases, consequently attention may have to be drawn to particular facts in particular cases.

I am satisfied that the scale proposed by the learned High Court judge would lead to excessive awards. I conclude that the scale of damages proposed by the Department of Defence is a fair and just scale giving rise to a just guideline, including as it does a sum for current disability and a sum related to future age related disability. This being so it is appropriate to apply the Department of Defence proposed scale of damages as a guideline in similar cases subject to the limitations expressed in this judgment.

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SCHEDULE A

(Halley v. Minister for Defence [1998] 4 I.R 464, at p.503)

Johnson. J. Scale of Damages

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	

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SCHEDULE B (Part 1)

DEPARTMENT OF DEFENCE

HEARING LOSS CASES

PROPOSED SCALE OF DAMAGES

AGE	FOR EACH PERCENTAGE POINT	FOR EACH PERCENTAGE POINT	
.	OF DISABILITY IN THE RANGE	OF DISABILITY FROM 11%	
.	1%-10%	ONWARDS	
-	(including future ageing in brackets)	(including future ageing in brackets)	
25	£1,625	£2,031	
.	(£438)	(£547)	
30	£1,500	£1,875	
.	(£375)	(£469)	
35	£1,375	£1,719	
.	(£313)	(£391)	
40	£1,250	£1,563	
.	(£250)	(£313)	
45	£1,125	£1,406	
.	(£188)	(£234)	
50	£1,000	£1,250	
.	(£125)	(£156)	
55	£875	£1,094	
.	(£63)	(£78)	
60 and	£750	£938	
over	(£0.00)	(£0.00)	

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SCHEDULER (Part 2)

DEPARTMENT OF DEFENCE

REARING LOSS CASES

PROPOSED SCALE OF DAMAGES

H’cap	.	2	3	4	5	6	7	8	9	10	11	12	
Age.	£	£	£	£	£	£	£	£	£	£	£	£	
25	1,625	3,250	4,875	6,500	8,125	9,750	11,375	13,000	14,625	16,250	18,281	20,313	
26	1,600	3,200	4,800	6,400	8,000	9,600	11,200	12,800	i4,400	16,000	18,000	20,000	
27	1,575	3,150	4,725	6,300	7,875	9,450	11,025	12,600	14,175	15,750	17,719	19,688	
28	1,550	3,100	4,650	6,200	7,750	9,300	10,850	12,400	13,950	15,500	17,438	19,375	
29	1,325	3,050	4,575	6,100	7,625	9,150	10,675.	12,200	13,725	15,250	17,156	19,063	
30	1,500	1,000	4,500	6,000	7,500	9,000	10,500	12,000	13,500	15,000	16,875.	18,750	
31	1,475	2,950	4,425	5,900	7,375	8,850	10,325	11,800	13,275	14,750	16,594	18,438	
32	1,450	2,900	4,350	5,800	7,250	8,700	10,150	11,600	13,050	14,500	16,313	18,125	
33	1,425	2,850	4,275	5,700	7,125	8,550	9,975	11,400	12,825	14,250	16,031	17,813	
34.	1,400	2,800	4,200	5,600	7,000	8,400	9,800	11,200	12,600	14,000	15,750	17,500	
35	1,375	2,750	4,125	5,500	6,875	8,250	9,625	11,000	12,375	13,750	15,469	17,188	
36	1,350	2,700	4,050	5,400	6,750	8,100	9,450	10,800	12,150	13,500	15,188	16,875	
37	1,325	2,650	3,975	5,300	6,625	7,950	9,275	10,600	11,925	13,250	14,906	16,563	
38	1,300	2,600	3,900	5,200	6,500	7,800	9,100	10,400	11,700	13,000	14,625	16,250	
39	1,275	2,550	3,825	5,100	6,375	7,650	8,925	10,200	11,475	12,750	14,344	15,938	
40	1,250	2,500	3,750	5,000	6,250	7,500	8,750	10,000	11,250	12,500	14,063	15,625	
41	1,225	2,450	3,675	4,900	6,125 .	7,350	8,575	9,800	11,025	12,250	13,781	15,313	
42	1,200	2,400	3,600	4,800	6,000	7,200	8,400	9,600	10,800	12,000	13,500	15,000	
43	1,175	2,350	3,525	4,700	5,875	7,050	8,225	9,400	10,575	11,750	13,219	14,688	
44	1,150	2,300	3,450	4,600	5,750	6,900	8,050	9,200	10,350	11,500	12,938	14,375	
45	1,125	2,250	3,375	4,500	5,625	6,750	7,875	9,000	10,125	11,250	12,656	14,063	
46	1,100.	2,200	3,300	4,400	5,500	6,600	7,700	8,800	9,900	11,000	12,375	13,750	
47	1,075	2,150.	3,225	4,300	5,375	6,450	7,525	8,600	9,675	10,750	12,094	13,438	
48	1,050	2,100 .	3,150	4,200	5,250	6,300	7,350	8,400	9,450	10,500	11,813	13,125	
49	1,025	2,050	3,075	4,100	5,125	6,150	7,175	8,200	9,225	10,250	11,531	12,813	
50	1,000	2,000	3,000	4,000	5,000	6,000	7,000	8,000	9,000	10,000	11,250 .	12,500	
51	975	1,950	2,925	3,900	4,875	5,850	6,825	7,800	8,775.	9,750	10,969	12,188	
52	950	1,900	2,850	3,800	4,750	5,700	6,650	7,600	8,550	9,500	10,688	11,875	
53	925	1,850	2,775	3,700	4,625	5,550	6,475	7,400	8,325	9,250	10,406	11,563	
54	900	1,800	2,700	3,600	4,500	5,400	6,300	7,200	8,100	9,000	10,125	11,250	
55	875	1,750	2,625	3,500	4,375	5,250	6,125	7,000	7,875	8,750	9,844	10,938	
56	850	1,700	2,550	3,400	4,250	5,100	5,950	6,800	7,650	8,500	9,563	10,625	
57	825	1,650	2,475	3,300	4,125	4,950	5,775	6,600	7,425	8,250	9,281	10,313	
58	800	1,600	2,400	3,200	4,000	4,800	5,600	6,400	7,200	8,000	9,000	10,000	
59	775	1,550	2,325	3,100	3,875	4,650	5,425	6,200	6,975	7,750	8,719	9,688	
60	750	1,500	2,250	3,000	3,750	4,500	5,250	6,000	6,750	7,500	8,438	9,375	

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SCHEDULE B (Part 3)

DEPARTMENT OF DEFENCE

HEARING LOSS CASES

PROPOSED SCALE OF DAMAGES

H’cap	13	14	15	16	17	18	19	20	21	22	23	24	25	
Age	£	£	£	£	.£	£	£	£	£	£	£	£	£	
25	22,344	24,375	26,406	28,438	30,469	32,500	34,531	36,563	38,594	40,625	42,656	44,688	46,719	
26	22,000	24,000	26,000	28,000	30,000	32,000	34,000	36,000	38,000	40,000	42,000	44,000	46,000	
27	21,656	23,625	25,594	27,563	29,531	31,500	33,469	35,438	37,406	39,375	41,344	43,313	45,281	
28	21,313	23,250	25,188	27,125	29,063	31,000	32,938	34,875	36,813	38,750	40,688	42,625	44,563	
29	20,969	22,875	24,781	26,688	28,594	30,500	32,406	34,313	36,219	38,125	40,03)	41,938	43,844	
30	20,625	22,500	24,375	26,250	28,125	30,000	31,875	33,750	35,625	37,500	39,375	41,250	43,125	
31	20,281	22,125	23,969	25,813	27,656	29,500	31,344	33,188	35,031	36,875	38,719	40,563	42,406	
32	19,938	21,750	23,563	25,375	27,188	29,000	30,813	32,625	34,438	36,250	38,063	39,875	41,688	
33	19:594	21:375	23:156	24:938	26:719	28:500	30:281	32:063	33,844	35:625	37,406	39,188	40,969	
34	19,250	21,000	22,750	24,500	26,250	28,000	29,750	31,500	33,250	35,000	36,750	38,500	40,250	
35 	18,906	20,625	22,344	24,063	25,781	27,500	29,219	30,938	32,656	34,375	36,094	37,813	39,531	
36	18,563	20,250	21,938	23;625	25,313	27,000	28,688	30,375	32,063	33,750	35,438	37,125	38,813	
37	18,219	19,875	21,531	23,188	24,844	26,500	28,156	29,813	31,469	33,125	34,781	36,438	38,094	
38	17,875	19,500	21,125	22,750	24,375	26,000	27,625	29,250	30,875	32,500	34,125	35,750	37,375	
39	17,531	19,125	20,719	22,313	23,906	25,500	27,094	28,688	30,281	31,875	33,469	35,063	36,656	
40	17,188	18,750	20,313	21,875	23,438	25,000	26,563	28,125	29,688	31,250	32,813	34,375	35,938	
41	16,844	18,375	19,906	21,438	22,969	24,500	26,031	27,563	29,094	30,625	32,156	33,688	35,219	
42	16,500	18,000	19,500	21,000	22,500	24,000	25,500	27,000	28,500	30,000	31,500	33,000	34,500	
43	16,156	17,625	19,094	20,563	22,031	23,500	24,969	26,438	27,906	29,375	30,844	32,313	33;781	
44	15,813	17,250	18,688	20,125	21,563	23,000	24,438	25,875	27,313	28,750	30,188	31,625	33,063	
45	15,469	16,875	18,281	19,688	21,094	22,500	23,906	25,313	26,719	28,125	29,531	30,938	32,344	
46	15,125	16,500	17,875	19,250	20,625	22,000	23,375	24,750	26,125	27,500	28,875	30,250	31,625	
47	14,781	16,125	17,469	18,813	20,156	21,500	22,844	24,188	25,531	26,875	28,219	29,563	30,906	
48	14,438	15,750	17,063	18,375	19,688	21,000	22,313	23,625	24,938	26,250	27,563	28,875	30,188	
49	14,094	15,375	16,656	17,938	19,219	20,500	21,781	23,063	24,344	25,625	26,906	28,188	29,469	
50.	13,750	15,000	16,250	17,500	18,750	20,000	21,250	22,500	23,750	25,000	26,250	27,500	28,750	
51	13,406	14,625	15,844	17,063	18,281	19,500	20,719	21,938	23,156	24,375	25,594	26,813	28,031	
52	13,063	14,250	15,438	16,625	17,813	19,000	20,188	21,375	22,563	23,750	24,938	26,125	27,313	
53	12,719	13,873	15,031	16,188	17,344	18,500	19,656	20,813	21,969	23,125	24,281	25,438	26,594	
54	12,375	13,500	14,625	15,750	16,875	18,000	19,125	20,250	21,375	22,500	23,625	24,750	25,875	
55	12,031	13,125	14,219	15,313	16,406	17,500	18,594	19,688	20,781	21,875	22,969	24,063	25,156	
56	11,688	12,750	13,813	14,875	15,938	17,000	18,063	19,125	20,188	21,250	22,313	23,375	24,438	
57	11,344	12,375	13,406	14,438	15,469	16,500	17,531	18,563	19,594	20,625	21,656	22,688	23,719	
58	11,000	12,000	13,000	14,000	15,000	16,000	17,000	18,000	19,000	20,000	21,000	22,000	23,000	
59	10,656	11,625	12,594	13,563	14,531	15,500	16,469	17,438	18,406	19,375	20,344	21,313	22,281	
60	10,313	11,250	12,188	13,125	14,063	15,000	15,938	16,875	17,813	18,750	19,688	20,625	21,583	

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THE SUPREME COURT
237/98
Hamilton, CJ,
Denham, J.
Keane, J. 
Murphy, J.
Lynch, J.

BETWEEN
KEVIN HANLEY
Plaintiff/Respondent
AND

THE MINISTER FOR DEFENCE, IRELAND
AND THE ATTORNEY GENERAL
Defendants/Respondents
JUDGMENT delivered the 7th day of December, 1999 by Keane, J.

Introduction

The plaintiff is an army private who lives in Limerick and was born on the 24th April 1963. He joined the army in 1980 and was still in the army when the case was heard in the High Court. It is accepted on behalf of the defendants that, during the course of his army career, he was exposed to

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excessive noise from the discharge of weapons and that they were negligent and in breach of their duty to him in failing to provide him with any form of ear protection. As a result, the plaintiff suffered, and will continue, to suffer, from a hearing loss and tinnitus. The action having come on for hearing in the High Court before Johnson J as an assessment of damages only, he was awarded the sum of £50,575 made up as follows:-

General damages to date	£24,750	
General damages for the future	£15,825	
Loss of earnings for the future	£10,000	

The defendants now appeal to this court on the grounds that each of the sums awarded is excessive and/or contrary to the evidence.

The claim in this case is one of a huge number of similar claims made by members of the defence forces, some of which have already been heard in the High Court and, in some instances, have been the subject of appeals to this court.

With a view to establishing criteria for the assessment of hearing disability, an expert group was established by the Minister for Health and Children in November 1997. The expert group presented their report entitled “Hearing Disability Assessment” to the Minister in 1998. It has since become

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known as, and will be referred to in this judgment as, “the Green Book”. On the 12th May 1998, the Civil Liability (Assessment of Hearing Injury) Act 1998 (hereafter “the Act”) become law. The provisions of the Act are referred to in more detail at a later stage: at this point, it is sufficient to note that they inter alia require the courts, in all proceedings where damages are claimed for personal injury arising from hearing loss, to have regard to certain parts of the Green Book. The Act and the Green Book were considered by the High Court (Lavan J) in Green v. The Minister for Defence & Ors. (unreported; Supreme Court, 3rd June, 1998) and it will also be necessary to refer to that judgment in more detail at a later stage.

The Act, although requiring the courts to have regard to certain parts of the Green Book, did not prescribe any formula for translating the degree of hearing disability established in any case into monetary compensation. From his experience in dealing with many of these cases, the learned High Court judge had concluded that it was desirable that there should be established, so far as practical, a formula for translating hearing disability assessed by reference to the Green Book into such compensation. Having heard evidence from a number of experts called on behalf of both the plaintiff and the defendants, in a written judgment delivered on the 31st July 1998 he calculated the damages to which he considered the plaintiff entitled in accordance with a formula set out in the form of a scale at the end of the judgment.

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During the hearing of the appeal, at the request of the court, the defendants furnished a scale which, in their submission, was more appropriate than that adopted by the learned High Court judge. The two scales are respectively referred to in this judgment as “the High Court Scale” and “the State Scale” and are set out in Appendices A and B to this judgment.

The plaintiffs injuries

The plaintiff joined the army in 1980 when he was 17 or 18 years old. He said that from the beginning of his career he noticed that when he came from the firing range, there was a buzzing in his ears, but that he did not take any notice of it because it was regarded as “a normal thing” amongst soldiers. The buzzing would last for a couple of hours after the range practice and then go away. In the three of four years prior to the hearing, he had noticed that this buzzing, which he now knew to be correctly described as tinnitus, was increasing and that he had it now about three or four times a week. In 1995 he was referred for an audiogramme, an accepted method of determining hearing loss. It was clear from this audiogramme that the plaintiff had suffered a hearing loss, the extent of which will be discussed in greater detail at a later stage.

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The plaintiff said that the effect of this hearing loss was that, when he was in a group of people, he found it difficult to hear and understand what people were saying. While listening to the radio or watching television, he had to have the volume turned up, which was a natural source of irritation to his family. He also thought that this affected his social life, since he had to keep asking his wife to tell him what people were saying to him.

The plaintiff said that until recently his duties involved him working as a waiter in the officers’ mess. He found that, as a result of the background noise during functions in the mess, he had to ask people to repeat their orders or requests and that he found this embarrassing. As a result, he gave up that particular job after about two years.

The plaintiff said that in quiet surroundings, talking to a single person, he was able to communicate quite well. He could also conduct telephone conversations in a normal fashion, except that he would have to close the doors or lower the volume on the television. He would also on occasions fail to hear the telephone or the doorbell ring.

The plaintiff said that, as a result of the hearing loss disclosed by the audiogramme, he had been reduced from grade 1 to grade 5. He was concerned that this might lead to his being discharged from the army at some stage, although he had intended to stay in the army until he was 60.

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The learned High Court judge’s findings as to the effect on the plaintiff of his hearing loss were as follows:-

“I am satisfied that the plaintiff has suffered a deal of discomfort to date, has had to give up his job in the officers’ mess in Limerick because of his inability to hear in crowded locations. In addition I am satisfied that he has suffered a great deal of anxiety as a result of being downgraded to Grade 5 in the army, and he has deep concerns about his future in the army, in which he hopes to remain until he is 60, in case he is boarded out of the army because of hearing difficulties. The evidence of the army personnel, particularly Commandant Loftus, reduced this eventuality to at very best a possibility...

“[The plaintiff] has indicated he wants to spend the remainder of his career [in the army] and of course if he can then all is well. I have asked the parties if it were possible for me to make an award for damages which would not be implemented unless he lost his position in the army through loss of hearing but it was indicated by the parties that this was not in my power to do.

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.... .1 have stated above, I have been assisted by Commandant Loftus’ evidence that this eventuality is unlikely to occur and that he will not lose his position in the army.

“However, I am satisfied that on the balance of probabilities his opportunities for serving in the Lebanon will be reduced and indeed for promotion and other additional duties...

.1 intend to allow a sum of £10, 000 in respect of this to be added to the damages already given.

The scientific assessment of hearing disability

Hearing impairment or hearing loss can take a number of forms. They can be divided, however, into three main categories, sensorineural hearing loss, conductive hearing loss and mixed hearing loss, the third being a combination of sensorineural and conductive hearing loss.

Sensorineural hearing loss is usually irreversible and permanent. It can be caused by a number of factors, including the ageing process and noise.

Conductive hearing loss is of mechanical origin and can be rectified by surgery.

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In a case such as the present, accordingly, one is concerned solely with sensorineural hearing loss.

That form of loss affects the cochlea or auditory nerves in the ear. There are, at the outset, 23,000 microscopic hair cells inside the cochlea which detect the presence of sound vibrations and send the appropriate electrical information to the brain. However, both the hair cells and the attached nerves degenerate with the passage of time, the process known as “Age Related Hearing Loss” (ARIAL). It is also sometimes referred to as “presbyacusis”, but under that description is more properly confined to the elderly. Age related hearing loss in fact begins as early as the second decade of life.

Noise Induced Hearing Loss (NIHL) is due to loss of hair cells in the cochlea. The damage can be caused by a number of factors, including the character of the noise, its frequency spectrum, its intensity and its duration. In the present case, the plaintiff was subjected to impulse noise following gun fire, i.e. a noise of short duration and high density with a characteristic wave form.

The intensity of sounds as they impact on the human ear can range from those we regard as very loud - such as a pneumatic drill - to sounds which are barely above the threshold at which our ears can detect them. The range of such intensities, from the threshold of hearing to the threshold of pain, is so huge, that a logarithmic scale must be used to measure them. Where the logarithm to the base 10 is taken, the units of the scale are called bels, after

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Alexander Graham Bell. That unit is also inconveniently small, and the scale is accordingly expressed in decibels or dBls.

The nature of the reception by the human ear of sound is not determined by the intensity of the sound, measured in decibels, alone. Sound travels in waves, the frequency of which over a period of time can be scientifically measured. The unit of measurement is the hertz and the nature of the reception by the human ear of particular sounds will be a function, not simply of their intensity measured in decibels, but also of their wave frequency measured in hertzs. If, for example, one takes a sound level of 60 decibels - approximating to the level of ordinary conversational speech - it will be effectively inaudible until it reaches a frequency of 2,000 hertz or 2 kilohertz (2 kh for short).

However, putting it crudely, once the frequency increases beyond 8 kh, the graph pattern is reversed and the level of audibility decreases sharply, irrespective of the sound level in decibels. It also appears that, in general terms, noise at a lower frequency will be more audible against a quiet background - e.g. on the telephone - than against a noisy background, such as a crowded room.

The process of testing hearing levels by audiometers is, accordingly based, not merely on the amplification of the sound so as to reach particular decibel levels, but also on the production of tones of specific frequencies, ranging from 250 Hz to 8000 Hz.

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The Green Book proceeds on the basis that, in a normal population, there is a statistically chosen limit below which the hearing threshold is regarded as normal. A hearing threshold above this level is regarded as indicating a disability. The figure taken by the Green Book - referred to as the “low fence” -is 20 dB, using the frequencies 500 Hz, 1000 Hz, 2000 Hz and 4000 Hz. There is then a “high fence” i.e. the average hearing threshold level above which virtually no meaningful hearing occurs and at which hearing disability is considered to be 100%. That figure is 100 dB. A person with hearing at the low fence level or below it will be able to detect woodland noise, such as the rustling of leaves. A person at the high fence level or above it would be unable to hear a pneumatic drill or the average disco at full volume.

It should also be noted that the lower the frequencies selected, the lower the low fence should be.

The Green Book provides a formula for the assessment of hearing loss which is as follows. The hearing threshold levels at 500 Hz, 1000 Hz, 2000 Hz and 4,000 Hz are added together and then divided by four. This is done separately for the right and left ear. 20 dB - “the low fence level” - is then deducted from the average obtained for each year, to give the average hearing loss. Because of reasons set out in the Green Book, the average hearing loss of each ear must then be multiplied by 1.25 and a further adjustment made to reflect the fact that the hearing in one ear is normally better than in the other.

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There is then an adjustment, according to tables set out in the book, for ARHL beyond the age of 69 years in males and 77 years in females.

A table is set out in the Green Book (p.9) which indicates in percentage terms the disability represented by hearing falling below a number of specified thresholds measured in decibels. This table, which is of considerable assistance in understanding the issues arising in the case, is reproduced in Appendix C to this judgment.

The figure resulting from these calculations is the hearing disability in both ears now being suffered by the person concerned expressed in percentage term: what is called in the Green Book the Binaural Percentage Hearing Disability. In the case of the plaintiff, the agreed evidence is that it is 7% together with an additional figure of 2% in respect of tinnitus.

That figure, however, makes no allowance for the degree of hearing disability which the plaintiff will suffer from age 60 onwards and which is solely attributable to NIHL. The evidence of the experts in this case was that the effect on hearing of ARHL and NIHL are additive. However, the total effects of ARHL and NIHL are less than the sum of each considered individually and, accordingly, a formula has been devised in order to ascertain the extent to which a hearing disability in a person of the plaintiffs age will be increased as a result of NIHL as distinct from ARHL. The formula is to be found in para. 5.1 of an international standard produced by the International

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Organisation for Standardisation (“ISO”) and is referred to as ISO 1999. According to the evidence of Professor Lutman in the present case, later research has indicated that the formula as set out in ISO 1999 may require adjustment if it is not to overstate the NIHL component. Be that as it may, it was accepted on behalf of the defendants at the trial that, adopting the relevant formula, the increased disability due to NIHL at age 60 was 13% and that was the figure on which the learned High Court judge based his assessments. However, this is acknowledged now to have been erroneous. The relevant percentage figure was 4%, but the defendants have accepted that they cannot reopen the matter at this stage.

It should also be pointed out that, in determining the extent to which the plaintiffs disabilities will increase over the years as a result exclusively of NINE as distinct from ARNE, there are two statistical models which may be employed. One is that based on a population cohort who had been assessed as having normal hearing or, to use the scientific terminology, are a “highly screened” otologically normal population. The other is a typical “unscreened” cohort who may have had various forms of noise exposure from occupational or other causes. The second model is set out in the form of Database B in ISO 1999 and there does not appear to be any serious dispute that it was the appropriate model to use in the present case.

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The applicable law

The principal issue in this case, both in the High Court and in this court, was as to the amount of general damages to which the plaintiff was entitled under the two headings of “general damages to date” and “general damages for the future”. As already noted, the plaintiff was also awarded the sum of £10,000 in respect of loss of earnings for the future, which was also the subject of an appeal.

In his judgment in Synnott v. Quinnsworth [1984] ILRM 523, O’Higgins CJ said at p.531:-

“General damages are intended to represent fair and reasonable monetary compensation for the pain, suffering, inconvenience and loss of the pleasures of life which the injury has caused and will cause to the plaintiff”

The plaintiff in the present case is, accordingly, entitled to be fairly compensated in accordance with those criteria for the hearing disability from which he undoubtedly suffers as a result of the defendants’ admitted negligence and from which he will continue to suffer. At the same time, the compensation to which he is entitled must bear a reasonable proportion to the circumstances

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of the case. It must be remembered, in this connection, that the personal injuries which are the subject of compensation in civil proceedings can range across a huge spectrum from the very modest - some abrasions and contusions -to truly catastrophic cases of nearly total paralysis.

In the hearing disability cases, there is a similar spectrum. At one end of the scale, there is a reduction in the ability to hear which is technically a “disability” within the parameters identified in the Green Book but of which the person concerned may not even be aware. At the other end of the scale there is total deafness. In between, there is a range of moderate to serious hearing impairments within which the present case falls. Although deafness has notoriously not attracted the same degree of sympathy as other forms of disability, the consequences for the person concerned, in terms both of his capacity to enjoy life and to obtain employment, must not be underestimated.

In assessing the amount of compensation in cases of loss of hearing, the court’s task is, in one respect, simpler than in other cases. As the necessarily simplified and abbreviated summary of the state of scientific knowledge I have attempted indicates, it is possible to measure the degree of disability concerned in relatively precise terms. The contrast with a case in which the court is required to assess the effects of pain and suffering resulting from fractured or amputated limbs or serious damage to the central nervous system is obvious.

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It is in the light of these considerations that the provisions of the Act fall to be considered. Section 4 provides that:-

“(1) In all proceedings claiming damages for personal injury arising from hearing loss, the courts shall, in determining the extent of the injuries suffered, have regard to Chapter 7 (Irish Hearing Disability Assessment System) of the [Green Book] and, in particular, to the matters set out in paragraph] (Summary) and Table 4 (Disability Percentage Age Correction Factor) to paragraph 7 (Age Related Hearing Loss Correction) of that Chapter, and the said paragraph 1 and Table 4 are, for convenience of reference, set out in Part I and Part II, respectively, of the Schedule to this Act.

(2)	In all proceedings claiming damages for personal injury arising from tinnitus, the courts shall, in determining the extent of the injuries suffered, have regard to the classification method contained in paragraph 9 (Tinnitus) of Chapter 7 (Irish Hearing Disability Assessment System) of the [Green Book].”

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Part 1 of the Schedule then sets out the calculation for the assessment of binaural percentage hearing disability to which I have already referred. It goes on as follows:-

“The additional disability allowance for moderate or severe tinnitus may be added.

This percentage computed is the proportion of hearing disability that the individual experiences, it is not the proportion of total body disablement (sic).

Part II then sets out the Disability Percentage Age Correction Factor for males and females at age 70 and over.

The policy underlying the Act is obvious. Although it is not confined in its terms to the many cases brought against the present defendants, it was, of course, the legislative response to what may fairly be described as a “litigation crisis” confronting the State. The objective was clearly to ensure that, while those who had suffered hearing loss as a result of negligence were fairly compensated, the amount of that compensation should, so far as possible, be assessed by courts in a manner which reflects the basic principle that like cases should be treated alike. It was also no doubt envisaged that such an approach

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would facilitate the early compromise of claims of this nature with a consequent significant reduction in the huge burden of legal costs involved.

While it is the duty of the courts to give effect to the legislative policy enshrined in the Act, every case which comes before them for assessment must be considered in the light of its particular facts. The Act indeed implicitly acknowledges that this should be the appropriate approach by doing no more than requiring the court to “have regard” to the relevant sections of the Green Book.

As the learned High Court judge pointed out, the evidence in this case made it clear that there are aspects of the assessment of hearing disability to which the Green Book offers no guidance. In particular, the expert evidence was overwhelmingly to the effect that, so far as the relationship between NINE and ARHL was concerned, ISO 1999 was the most widely accepted guide. Although that standard is not referred to in the Act, I have no doubt - and this again appears to have been accepted at the hearing of this appeal - that the courts should have regard to the guidance afforded by that standard in the same manner as they have regard to the Green Book.

As I have already noted, the Act and the Green Book were considered by Lavan J in Green v. The Minister for Defence & Ors.. In that case he said:-

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“The requirement to ‘have regard to’ the Green Book does not... impose a duty upon the Court to adhere strictly to its terms. Therefore, while the court must consider the approach adopted in the Green Book, it reserves the right to consider alternative approaches. The Court may then determine which is the most appropriate solution in each individual case. In the absence of a more appropriate alternative solution... established to the satisfaction of the Court, the statutory formula should be applied. The circumstances in which the statutory formula is not applied may in fact transpire to be as limited as the Defendants’ submissions suggest. However, this will be a matter for the determination of the Court in the circumstances of each individual case.

I am satisfied that that is a correct statement of the law applicable to cases of this nature.

In Green the plaintiff, who at the time of the hearing was aged 59, had been assessed some five years earlier as having a hearing loss of 40 dBls at 4,000 Hz. It was agreed between the parties that this represented a 2% NINE. Lavan J assessed the appropriate compensation for this hearing loss at £3,000, i.e. a sum of £1,500 in respect of each 1% of hearing loss. While it is not so

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stated in express terms in the judgment, it would seem self-evident that the learned trial judge in that case was treating a sum of £150,000 as a reasonable median figure (obviously liable to fluctuate according to age) which might be awarded as general damages in a case of total deafness and that it was on that basis that he considered the sum of £1,500 for each 1% of hearing disability as being appropriate.

The High Court Scale and The State Scale

The two scales presented to the court in the present case can now be considered in the light of the legal principles to which I have referred. Subject to a crucial difference in the monetary equivalent of 1% disability (“the basic unit”), the two scales are in agreement as to how a present disability should be compensated. This takes as its starting point a basic unit at age 60. Under the High Court Scale, the figure is £1,500 for each 1% of disability at that age. Under the State Scale it is £750. Both scales then assume that, throughout a person’s life, going backwards from age 60 to age 1, the basic unit should be increased on a linear basis. Thus, under the High Court Scale, one begins with £1,500 at age 60, increased to £1,750 at age 55 and so on. In the case of an infant who suffered a hearing disability in the first year of life one would arrive

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at a figure of £6,000 under the High Court Scale. At age 30, the figure would be £3,000.

In the case of a present disability, the State Scale operates in precisely the same fashion, but since it takes the basic unit at age 60 as being £750, the figure at age 30 is £1,500 and the infant figure is £3,000.

Both scales, accordingly, compensate the person looking forward to 20 years of reduced hearing at a higher rate than the person looking forward to 10 years of such disability. That is a fair and reasonable approach to assessing a present disability and was accepted to be such by the parties. It is the difference in the basic unit to be adopted - £1,500 under the High Court Scale and £750 under the State Scale - which is crucial.

The calculations to which I have so far referred do not fully reflect the extent of the disability. One must in addition take into account the increased disability at age 60 resulting from the combination of ARHL and NIHL. Clearly, the plaintiff was only entitled to a figure for NINE, which in this case, while assessed by the trial judge at 13%, should have been 4%.

The trial judge dealt with the NINE component by multiplying his basic unit by 13 and then effecting an actuarial reduction in the figure to allow for the fact that the plaintiff was getting compensated now for a disability that would not occur until age 60. This seems a reasonable approach. If one assumes, as the evidence indicated, that the entire disability does not come into operation

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on the plaintiffs 60th birthday - and it would be surprising if it did - but rather proceeds on a linear basis from age 35 up to 60, he is entitled to be compensated for that additional and progressive disability due to NIHL. But one also has to take into account the fact that he is being compensated now for a total loss that he would not have suffered until he was aged 60. It is, accordingly, appropriate to take the present value in actuarial terms of the basic unit multiplied by the appropriate percentage.

There is, however, as Lynch J points out in his judgment, another adjustment which then has to be made and which was not made in the High Court. The sum must reflect the fact that the plaintiff will only suffer from this disability for a specified period of years: at some stage, his hearing, because of ARHL alone, would have reached the same reduced level. According to the Table in the Green Book (p.60) the average male would suffer a 4% reduction, due to age alone, at age 73. That would suggest that the plaintiff was, accordingly, entitled to this figure for a thirteen year period only from age 60 and not for the rest of his life and that a further actuarial reduction would be required to be made to allow for that factor. Such a reduction might be very small, if indeed any was to be made, but the position is further complicated by the fact that, according to Professor Lutman, men in the median range would reach the relevant degree of hearing loss at the age of 62. [Transcript, 15th July, Q20 & Q26.]

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In that state of uncertainty, all one can say is that, in general, whatever may have been the position in this case, some actuarial reduction may have to be made, because of the factor identified by Lynch J. The extent of the actuarial reduction would have to be determined by reference to the evidence in the particular case.

The State Scale also recognises that there is an additional factor but appears, at first sight, to contain a fallacy. It proceeds on the correct assumption that, to compensate the plaintiff for NINE at age 60, one again takes the basic unit of £750. In the case of a person aged 59, the progressive deterioration is at its most minute, since it represents appropriately one year of deterioration. At the other end of the scale, an infant in the first year of life, what must be compensated is 60 years of progressive deterioration until one reaches the ARHL and NIHL at age 60. Hence, the State Scale identifies an NINE figure of £63 at age 55 which would reach £750 at age 1. Half way along the scale the figure is £375.

The State Scale, however, does not treat the £313 (the relevant figure at age 35) as additional to the £1,375 payable in respect of each 1% of present hearing disability at that age: it merely identifies the £313 as a component of the £1,375. That would appear to be clearly wrong, since the £1,375 represents the present hearing loss which the plaintiff will have in any event for the rest of his life, irrespective of any additional hearing loss resulting from the joint

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operation of ARHL and NINE. Counsel for the Defendants explained this apparent anomaly in the State Scale on the basis that, were it not for the additional component represented by the NINE, the basic unit for the present disability, indicated at each point on the scale, would be too high. That does not seem to me to be a logical approach: provided the basic unit at age 60 in respect of hearing loss at that age is reasonable, then, adopting the approach common to both scales, it can be fairly adjusted to reflect the present extent of a hearing disability, clearly proportionately greater in the case of a person aged 35 than a person aged 59, since he would have to suffer from it for a significantly longer period of time.

It may have been intended that, under the State Scale the basic unit of £1,375 is to be multiplied by 13% rather than 9%. It may well be that the difference between the resultant figure and the figure arrived at by employing the method used under the High Court Scale - assuming, of course, they are both starting from the same basic unit - may not be all that significant.

There remains the question of the basic unit. The difficulty of the High Court Scale is that it adopts £1,500 as the basic unit, irrespective of whether the disability is at the lowest possible level - 1% - or something higher. (An examination of both scales will indicate that a higher basic unit is used for disability ranging from 11% to 25%, but that does not affect the point with which I am at present concerned). The High Court Scale, in other words,

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provides for a mathematically linear calculation which inevitably leads to serious distortions in awards. A person at the 1% level has, at the worst, a reduced ability to hear rustling leaves in woods. Applying the High Court Scale, he becomes entitled to £1,500 at age 59 for a disability of which he is almost certainly unaware, unless for some reason, as in the case of persons employed in the defence forces, he is given an audiogram.

It should be borne in mind that both scales are dealing solely with disabilities up to 25% i.e., what is described in the Green Book as “living room”. Accordingly, both scales are presented to the court on the basis that, when one reaches the area of either total or significant partial deafness, the normal method of assessing damages having regard to all the facts of the particular case is the only method that can be adopted.

In cases where the disability ranges from 1% to 25%, one is considering a range of hearing loss which extends from a disability which hardly merits any compensation at all to one that clearly requires compensation, albeit of a reasonably moderate nature. That difficulty could be met by dividing the scale from 1% to 25% into different bands attracting different units, but none were produced to us and it was accepted on behalf of the State that adopting such bands could be problematic.

One approach which could be adopted would be to take a basic unit of £1,500 as being reasonable for the 20% -25% band. At the other end, from 1%

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to 10%, there should be something more than a linear reduction and 25% of the basic unit would seem to be reasonable. There would then be a basic unit of £375 from 1% to 10%. The remaining 10% to 20% should then be 50% of the highest basic unit, i.e. £750. If one takes the average of these figures to arrive at a basic unit, the result is precisely £750, i.e. the basic unit adopted by the State Scale. No doubt it could be adjusted upwards or downwards but it seems to me a not unreasonable figure.

There is a further difficulty with the High Court Scale: it takes the unit figure of £1,500 as being applicable only within the 1% to 10% band. For the band from 11% to 25%, the figure is doubled. For the reasons I have already indicated, there is a case to be made for having a higher basic unit for disability in excess of 10%, but not one which draws no distinction between 11% and 25%. In my view, the additions suggested for the 11% to 25% band in the State Scale are more reasonable.

As Lynch J demonstrates in his judgment, these weaknesses in the High Court Scale would inevitably lead to excessive awards. No doubt it could be said that the rigid application of the State Scale might also lead to injustice. In the example cited by Lynch J - a 25% degree of disability at age 35 - the resultant figure of £39,531 might seem at first sight too low, given that a person at that level will be wholly unable to hear “living room speech” and will suffer serious social and economic consequences as a result.

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Such a person might well be entitled to a higher sum for general damages. It cannot be too strongly emphasised that the closer one comes to the 25% ceiling, the more likely it will be that, in specific cases determined on their own facts, the scale will be of reduced significance.

I am satisfied that the basic units in the State Scale should be adopted in future cases, where appropriate. I am not persuaded that the resultant figure, whatever it may be, should be increased by 25% in every case, because, in the more serious cases, it might appear inadequate. Such cases, as I have suggested, can be dealt with by High Court judges on their merits.

There is the further difficulty that an increase of 25% - or indeed any particular percentage - is inevitably somewhat arbitrary. That cannot be said of the approach adopted in the High Court Scale and the State Scale: whatever other defects they may suffer from, they both take as their starting point the proposition that all cases of hearing loss should be related in percentage terms to the average award for general damages in cases of total deafness.

I would, accordingly, sum up my approach by saying that the basic unit adopted in the State Scale is the basis which should normally be used in calculating loss in these cases. However, the scale should be treated as though it omitted the words “(including future ageing)” at the head of each of the two columns. In addition, the figure which appears in brackets at each age is irrelevant. There has to be added to the basic unit, multiplied by the

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- 27 -

appropriate percentage, a further amount for NINE to the extent that it will be aggravated by ARHL by the age of 60, discounted for present payment and subject, it may be, to the actuarial reduction referred to by Lynch J. So far as the more detailed calculations set out in the table annexed to the State Scale are concerned, these are simply mathematical extrapolations which may prove useful in practice in calculating damages in respect of immediate disability which is the result of NINE. One cannot, of course, assume that all the calculations are correct: those are matters which the parties or their legal advisers will be in a position to check in any particular case.

It is a curious feature of the present case - and one that does not appear to have been satisfactorily dealt with in the evidence - that the present disability, including the tinnitus, from which the plaintiff suffered is measured at 9%. When one looks at the Green Book table reproduced in Appendix C, it would appear that such a percentage disability would have meant that the applicant, although unable to hear woodland noise, should not have had the least difficulty in hearing whispered speech. It is, of course, the case, as already noted, that his ability to hear such speech would manifestly be affected by the background level of noise: he agreed that he had generally no difficulty in hearing telephone conversations and that his major problem arose from trying to hear conversations in crowded rooms. Yet, again, if one consults the Green Book table, one finds that he is 16% below the “living room” threshold.

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-28-

However, those considerations merely serve to emphasise that, in some cases at least, the Green Book, ISO 1999 and the State Scale, although indispensable in setting out criteria for providing just and reasonable compensation in such cases, cannot be applied rigidly in all cases without some risk of injustice.

As to the £10,000 awarded in respect of future loss of earnings, I agree that for the reasons given by Lynch J in his judgment that part of the award should not be disturbed.

In the case of the general damages, the considerations to which I have referred, even if one were to disregard the error as to percentages already mentioned, indicate that they are excessive. Since, however, the State have accepted that, in the circumstances of the present case, the plaintiff should not be asked to repay any damages awarded to it, this being in nature of a test case to determine the appropriate method of assessing damages in such cases, I am satisfied that the award of damages arrived at by the learned High Court judge should not be interfered with and that the appeal should be dismissed.

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APPENDIX A
THE HIGH COURT SCALE

AGE	1%-10 %	10%-25%	
30	£3,000		
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	

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APPENDIX B
THE STATE SCALE

AGE	FOR EACH PERCENTAGE POINT OF DISABILITY IN THE RANGE
1%-10%
(including future ageing in brackets)	FOR EACH PERCENTAGE POINT OF DISABILITY FROM 11%
ONWARDS
(including future ageing in brackets)	
25	£1,625
(£438)	£2,031
(£547)	
30	£1,500
(£375)	£1,875
(£469)	
35	£1,375
(£313)	£1,719
(£391)	
40	£1,250
(£250)	£1,563
(£313)	
45	£1,125
(£188)	£1,406
(£234)	
50	£1,000
(£125)	£1,250
(£156)	
55	£875
(£63)	£1,094
(£78)	
60 and over	£750
(£0.00)	£938
(£0.00)	

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-31-

APPENDIX B
(CONTINUED)

H’cap	.	2	3	4	5	6	7	8	9	10	11	12	
Age.	£	£	£	£	£	£	£	£	£	£	£	£	
25	1,625	3,250	4,875	6,500	8,125	9,750	11,375	13,000	14,625	16,250	18,281	20,313	
26	1,600	3,200	4,800	6,400	8,000	9,600	11,200	12,800	i4,400	16,000	18,000	20,000	
27	1,575	3,150	4,725	6,300	7,875	9,450	11,025	12,600	14,175	15,750	17,719	19,688	
28	1,550	3,100	4,650	6,200	7,750	9,300	10,850	12,400	13,950	15,500	17,438	19,375	
29	1,325	3,050	4,575	6,100	7,625	9,150	10,675.	12,200	13,725	15,250	17,156	19,063	
30	1,500	1,000	4,500	6,000	7,500	9,000	10,500	12,000	13,500	15,000	16,875.	18,750	
31	1,475	2,950	4,425	5,900	7,375	8,850	10,325	11,800	13,275	14,750	16,594	18,438	
32	1,450	2,900	4,350	5,800	7,250	8,700	10,150	11,600	13,050	14,500	16,313	18,125	
33	1,425	2,850	4,275	5,700	7,125	8,550	9,975	11,400	12,825	14,250	16,031	17,813	
34.	1,400	2,800	4,200	5,600	7,000	8,400	9,800	11,200	12,600	14,000	15,750	17,500	
35	1,375	2,750	4,125	5,500	6,875	8,250	9,625	11,000	12,375	13,750	15,469	17,188	
36	1,350	2,700	4,050	5,400	6,750	8,100	9,450	10,800	12,150	13,500	15,188	16,875	
37	1,325	2,650	3,975	5,300	6,625	7,950	9,275	10,600	11,925	13,250	14,906	16,563	
38	1,300	2,600	3,900	5,200	6,500	7,800	9,100	10,400	11,700	13,000	14,625	16,250	
39	1,275	2,550	3,825	5,100	6,375	7,650	8,925	10,200	11,475	12,750	14,344	15,938	
40	1,250	2,500	3,750	5,000	6,250	7,500	8,750	10,000	11,250	12,500	14,063	15,625	
41	1,225	2,450	3,675	4,900	6,125 .	7,350	8,575	9,800	11,025	12,250	13,781	15,313	
42	1,200	2,400	3,600	4,800	6,000	7,200	8,400	9,600	10,800	12,000	13,500	15,000	
43	1,175	2,350	3,525	4,700	5,875	7,050	8,225	9,400	10,575	11,750	13,219	14,688	
44	1,150	2,300	3,450	4,600	5,750	6,900	8,050	9,200	10,350	11,500	12,938	14,375	
45	1,125	2,250	3,375	4,500	5,625	6,750	7,875	9,000	10,125	11,250	12,656	14,063	
46	1,100.	2,200	3,300	4,400	5,500	6,600	7,700	8,800	9,900	11,000	12,375	13,750	
47	1,075	2,150.	3,225	4,300	5,375	6,450	7,525	8,600	9,675	10,750	12,094	13,438	
48	1,050	2,100 .	3,150	4,200	5,250	6,300	7,350	8,400	9,450	10,500	11,813	13,125	
49	1,025	2,050	3,075	4,100	5,125	6,150	7,175	8,200	9,225	10,250	11,531	12,813	
50	1,000	2,000	3,000	4,000	5,000	6,000	7,000	8,000	9,000	10,000	11,250 .	12,500	
51	975	1,950	2,925	3,900	4,875	5,850	6,825	7,800	8,775.	9,750	10,969	12,188	
52	950	1,900	2,850	3,800	4,750	5,700	6,650	7,600	8,550	9,500	10,688	11,875	
53	925	1,850	2,775	3,700	4,625	5,550	6,475	7,400	8,325	9,250	10,406	11,563	
54	900	1,800	2,700	3,600	4,500	5,400	6,300	7,200	8,100	9,000	10,125	11,250	
55	875	1,750	2,625	3,500	4,375	5,250	6,125	7,000	7,875	8,750	9,844	10,938	
56	850	1,700	2,550	3,400	4,250	5,100	5,950	6,800	7,650	8,500	9,563	10,625	
57	825	1,650	2,475	3,300	4,125	4,950	5,775	6,600	7,425	8,250	9,281	10,313	
58	800	1,600	2,400	3,200	4,000	4,800	5,600	6,400	7,200	8,000	9,000	10,000	
59	775	1,550	2,325	3,100	3,875	4,650	5,425	6,200	6,975	7,750	8,719	9,688	
60	750	1,500	2,250	3,000	3,750	4,500	5,250	6,000	6,750	7,500	8,438	9,375	

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H’cap	13	14	15	16	17	18	19	20	21	22	23	24	25	
Age	£	£	£	£	.£	£	£	£	£	£	£	£	£	
25	22,344	24,375	26,406	28,438	30,469	32,500	34,531	36,563	38,594	40,625	42,656	44,688	46,719	
26	22,000	24,000	26,000	28,000	30,000	32,000	34,000	36,000	38,000	40,000	42,000	44,000	46,000	
27	21,656	23,625	25,594	27,563	29,531	31,500	33,469	35,438	37,406	39,375	41,344	43,313	45,281	
28	21,313	23,250	25,188	27,125	29,063	31,000	32,938	34,875	36,813	38,750	40,688	42,625	44,563	
29	20,969	22,875	24,781	26,688	28,594	30,500	32,406	34,313	36,219	38,125	40,03)	41,938	43,844	
30	20,625	22,500	24,375	26,250	28,125	30,000	31,875	33,750	35,625	37,500	39,375	41,250	43,125	
31	20,281	22,125	23,969	25,813	27,656	29,500	31,344	33,188	35,031	36,875	38,719	40,563	42,406	
32	19,938	21,750	23,563	25,375	27,188	29,000	30,813	32,625	34,438	36,250	38,063	39,875	41,688	
33	19:594	21:375	23:156	24:938	26:719	28:500	30:281	32:063	33,844	35:625	37,406	39,188	40,969	
34	19,250	21,000	22,750	24,500	26,250	28,000	29,750	31,500	33,250	35,000	36,750	38,500	40,250	
35 	18,906	20,625	22,344	24,063	25,781	27,500	29,219	30,938	32,656	34,375	36,094	37,813	39,531	
36	18,563	20,250	21,938	23;625	25,313	27,000	28,688	30,375	32,063	33,750	35,438	37,125	38,813	
37	18,219	19,875	21,531	23,188	24,844	26,500	28,156	29,813	31,469	33,125	34,781	36,438	38,094	
38	17,875	19,500	21,125	22,750	24,375	26,000	27,625	29,250	30,875	32,500	34,125	35,750	37,375	
39	17,531	19,125	20,719	22,313	23,906	25,500	27,094	28,688	30,281	31,875	33,469	35,063	36,656	
40	17,188	18,750	20,313	21,875	23,438	25,000	26,563	28,125	29,688	31,250	32,813	34,375	35,938	
41	16,844	18,375	19,906	21,438	22,969	24,500	26,031	27,563	29,094	30,625	32,156	33,688	35,219	
42	16,500	18,000	19,500	21,000	22,500	24,000	25,500	27,000	28,500	30,000	31,500	33,000	34,500	
43	16,156	17,625	19,094	20,563	22,031	23,500	24,969	26,438	27,906	29,375	30,844	32,313	33;781	
44	15,813	17,250	18,688	20,125	21,563	23,000	24,438	25,875	27,313	28,750	30,188	31,625	33,063	
45	15,469	16,875	18,281	19,688	21,094	22,500	23,906	25,313	26,719	28,125	29,531	30,938	32,344	
46	15,125	16,500	17,875	19,250	20,625	22,000	23,375	24,750	26,125	27,500	28,875	30,250	31,625	
47	14,781	16,125	17,469	18,813	20,156	21,500	22,844	24,188	25,531	26,875	28,219	29,563	30,906	
48	14,438	15,750	17,063	18,375	19,688	21,000	22,313	23,625	24,938	26,250	27,563	28,875	30,188	
49	14,094	15,375	16,656	17,938	19,219	20,500	21,781	23,063	24,344	25,625	26,906	28,188	29,469	
50.	13,750	15,000	16,250	17,500	18,750	20,000	21,250	22,500	23,750	25,000	26,250	27,500	28,750	
51	13,406	14,625	15,844	17,063	18,281	19,500	20,719	21,938	23,156	24,375	25,594	26,813	28,031	
52	13,063	14,250	15,438	16,625	17,813	19,000	20,188	21,375	22,563	23,750	24,938	26,125	27,313	
53	12,719	13,873	15,031	16,188	17,344	18,500	19,656	20,813	21,969	23,125	24,281	25,438	26,594	
54	12,375	13,500	14,625	15,750	16,875	18,000	19,125	20,250	21,375	22,500	23,625	24,750	25,875	
55	12,031	13,125	14,219	15,313	16,406	17,500	18,594	19,688	20,781	21,875	22,969	24,063	25,156	
56	11,688	12,750	13,813	14,875	15,938	17,000	18,063	19,125	20,188	21,250	22,313	23,375	24,438	
57	11,344	12,375	13,406	14,438	15,469	16,500	17,531	18,563	19,594	20,625	21,656	22,688	23,719	
58	11,000	12,000	13,000	14,000	15,000	16,000	17,000	18,000	19,000	20,000	21,000	22,000	23,000	
59	10,656	11,625	12,594	13,563	14,531	15,500	16,469	17,438	18,406	19,375	20,344	21,313	22,281	
60	10,313	11,250	12,188	13,125	14,063	15,000	15,938	16,875	17,813	18,750	19,688	20,625	21,583	

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APPENDIX C

Table 1. Illustration of Noise Intensities of Common Sounds

Percentage Hearing Disability	.	Sound. Pressure Levels (dB)	
.	.	.	
.	— 140 	Pain Threshold	
.	.	.	
.	— 130	.	
.	— 	Jet engine take-off at l00m	
.	— 120	.	
.	.	..	
.	— 110 	Average disco or Walkman at full volume	
.	.	.	
100%—	— 100 	Pneumatic drill	
.	.	.	
.	— 90 	.	
.	— 	Shouted speech	
.	— 80	Average street traffic	
.	.	.	
.	— 70	Telephone	
56% —	.	Business office	
.	— 60.	.	
.	.	Conversational speech	
.	— 50	.	
.	.	.	
25% —	— 40	Living room	
19% —		Whispered speech	
.	— 30	.	
.	.	.	
0%  —	— 20	.	
.	.	Woodland noise	
.	— 10	.	
.	— 0	Threshold of hearing	

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THE SUPREME COURT
No. 237/98
Hamilton, CJ,
Denham, J.
Keane, J.
Murphy, J.
Lynch, J.

BETWEEN
KEVIN HANLEY
Plaintiff/Respondent
AND

THE MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL
Defendants/Appellants
JUDGMENT delivered the 7th day of December 1999 by Lynch J.

This is an appeal by the defendants (hereafter the State) from the judgment and order of the High Court (Johnson .1) delivered and made on the 21st of July, 1998, whereby the plaintiff/respondent was awarded £50,575 damages for hearing disability suffered by him as a soldier in the National army.

In the formal order as drawn up and perfected the damages are set out under the following heads:-

	“General damages to date	£24,750
General damages for future	£15,825
	Loss of earnings for the future	£10 000
	Total	£50,575”

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(2)

The State admitted liability and accordingly the action proceeded in the High Court as an assessment of damages only. The case was heard over a period of 4 days from Tuesday the 14th of July to Friday the 17th July, 1998, inclusive in which world renowned experts on hearing and hearing loss from abroad gave evidence as well as Irish experts and other witnesses. The foreign experts were Professor Ronald Hinchcliff of London called on behalf of the respondent and Professor Mark Lutman of Southampton and Professor Peter Alberti of Toronto both called on behalf of the State. The learned trial judge was requested by counsel for the State to frame his judgment in such a way that in addition to doing justice as between the respondent and the State in this particular case it would also be of assistance in the just determination of other similar cases pending in the High Court and other courts. By his judgment of the 21st of July, 1998, the learned trial judge acceded to the State’s request, in particular by formulating a schedule by reference to which any percentage hearing disability between 1% and 25% can be calculated in money terms for any plaintiff aged 30 years to 60 years inclusive. A copy of this schedule, hereafter called Schedule A, is annexed to this judgment.

The State nominally appealed against the amount of damages awarded to the respondent but the reality of the appeal is that the State contends that Schedule A is much too generous and that an alternative Schedule produced by the State at the invitation of the Supreme Court is more appropriate to do justice as between the State and the respondent in this case and other plaintiffs with similar claims. A copy of the State’s Schedule is annexed hereto and is hereafter referred to as Schedule B.

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(3)

The Factual Background

The relevant facts in this case can be very shortly stated by reference to the findings of the learned trial judge which have not been challenged in any way on this appeal. They are as follows:-

“The plaintiff in this case is an army private who resides in Limerick and was born on the 24th April, 1963. After some work elsewhere he joined the army in 1980 and continues in his army career up to the present moment. In the course of his career in the army he was exposed to a great deal of gunfire, including acting as a mortar-man, without any form of ear protection, until eventually at the end of the 1980’s he was given a hard plastic plug. The plaintiff has undoubtedly suffered damage and his complaints consist of the usual ones, in cases such as this, of hearing disability in noisy circumstances, and he suffers from tinnitus.

It is agreed between the parties that at the present moment he suffers a 7% disability under the formula as provided in the “Green Book”. The Green Book, which was introduced by legislation earlier this year is a method of calculating impairment in terms of percentage disability.

I am satisfied that the plaintiff has suffered a great deal of discomfort to date, has had to give up his job in the officers’ mess in Limerick because of his inability to hear in crowded locations. In addition lam satisfied that he has suffered a great deal of anxiety as a result of being down graded to Grade S in the army, and he has deep

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(4)

concerns about his future in the army, in which he hopes to remain until he is 60, in case he is boarded out of the army because of hearing difficulties. The evidence of the army personnel, particularly Commandant Loftus, reduced this eventuality to at very best a possibility.”

The agreed hearing disability of 7% by reference to the Green Book would equate with the hearing of an average man of about 75 or 76 years of age who has no noise induced hearing disability although for the reasons given by the learned trial judge in his judgment it may be more appropriate to say that the respondent’s hearing equates with that of a man of 60 years or thereabouts. The learned trial judge assessed the respondent’s hearing disability attributable to his tinnittis at 2% in accordance with page 67 of the Green Book and Part 1 of the Schedule to the Civil Liability (Assessment of Hearing Injury) Act, 1998 (hereafter the 1998 Act). No appeal is taken in relation to that finding so that the appeal proceeded in this court on the basis that the respondent had a 9% noise induced hearing disability.

The Submissions

Counsel for the State submitted as follows:-

(1) In Schedule A as prepared by the learned trial judge the basic starting figure of £1,500 at age 60 years for each percentage point of noise induced hearing disability is too high.

(2) The degree of difference between the starting point of £1,500 at age 60 years and £3,000 at age 30 years for each percentage point of noise induced hearing disability is too great and is unsupported by the evidence in the case.

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(5)

(3)	The doubling of the basic starting point at age 60 years to £3,000 for each percentage point noise induced hearing disability from 11% to 25% is also too high and is unsupported by any evidence given during the trial.

(4)	The degree of difference between the basic starting point of £3,000 at age 60 years and £6,000 at age 30 years for each percentage point of noise induced hearing disability between 11% and 25% is also too great and is unsupported by the evidence.

(5)	A person who has a 25% hearing disability still has 75% of his hearing available to him. What that means in practical terms is described at page 9 of the Green Book. He can still hear living room sounds and conversational speech.

(6)	Accordingly the figures in Schedule B are much more appropriate and reasonable and that Schedule should be adopted by the courts as a guide for the purposes of doing justice between the respondent and other similar plaintiffs and the State.

Counsel for the respondent submitted as follows:-

(1)	The 1998 Act is a general Act which together with the Green Book applies to all claims in respect of hearing loss and not merely to army deafness claims.

(2)	The 1998 Act and the Green Book do not alter the law as to the assessment of damages for personal injuries in hearing loss cases. The law remains as stated in Barry .v. Nitrigin Éireann Teo [1994] 2 ILRM 522; Bastick .v. The Minister for Defence & Ors

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(6)

unreported, High Court, Barron J., 24th November, 1995; Gardiner .v. The Minister for Defence, unreported, High Court, Johnson J., 20th March, 1998, and other like cases. The 1998 Act and the Green Book merely require that the courts should have regard to the matters therein contained.

(3) The Green Book does not specify any particular sum for any percentage point of noise induced hearing disability. The learned trial judge has applied a system of bands of ages and bands of percentage points and this is a reasonable and proper way of applying the recommendations and provisions of the 1998 Act and the Green Book.

(4) The State case changed dramatically from day one to day two. On day one the State were contending that where there was noise induced hearing loss there could not be future loss due to the ageing process. On day two they accepted that there could be such further loss and the position was as described at page 59 to 61 of the Green Book at paragraphs 7.7 and 7.8.

(5) The respondent has a very serious hearing problem. Through noise induced hearing loss at 35 years he has the hearing of a man over 70 years of age. In assessing damages in this case and providing Schedule A the learned trial judge did no more than what the State requested him to do and moreover the judgment and Schedule A have been widely applied in similar cases since July 1998.

(6) The basic starting point of £1,500 for 1% hearing disability in a man aged 60 years is taken from the judgment of Lavan J. in Greene .v. The Minister for Defence [1998] 4 IR 464.

That judgment assumed £150,000 for total deafness, giving £1,500 for 1%.

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(7)

(7)	In cases of catastrophic injuries the amount allowed for general damages is never really adequate compensation for the unfortunate plaintiff. That does not mean that in cases of serious but not catastrophic injuries the damages must be scaled down drastically. On the contrary, the damages should be adequate to compensate such a plaintiff fully and the learned trial judge in this case has done no more than that.

Conclusions

Section 3 of the 1998 Act provides:-

“Judicial notice shall be taken of the Report [i.e. the Green Book] in all proceedings before a court claiming damages for personal injury arising from a hearing injury.”

Section 4(1) of the 1998 Act provides that in determining the hearing injuries suffered the courts “shall” have regard to Chapter 7 of the Green Book and in relation to tinnitus Section 4(2) provides that “the courts” shall have regard to paragraph 9 of Chapter 7 of the Green Book.

If they wish the courts could ignore the rest of the Green Book but the combination of s.3 and s.4 of the 1998 Act means that the courts may if they so wish and should in general have regard to the other parts of the Green Book. It would be strange if it were otherwise because in that event s.3 would really be meaningless.

The recommendations and provisions of the Green Book should therefore be adopted by the courts unless there is a reason of substance for departing from them.

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(8)

Table 1 at page 9 of the Green Book is helpful as giving a practical idea of the effect-on a plaintiff of an ascertained percentage of hearing disability. What is clear however from the evidence and findings of the learned trial judge in this case is that Table 1 assumes a quiet background and one to one speech. If it were assumed that Table 1 applies where there is any significant background noise the table would be quite misleading. The learned trial judge commented in the course of the trial that this respondent was much more affected for a person of his age than the average plaintiff coming before that court and of course Johnson J. has unparalleled experience of these cases and the application of the Green Book and the 1998 Act thereto.

Dr. Stephen Flynn gave evidence as recorded in Transcript 1 at Questions 32 and 42 to 44 that the respondent had severe noise induced hearing loss making it difficult for him to understand conversation in a noisy location such as where there are a number of people speaking at the same time and that he had to have the television turned up louder than was comfortable for other people. Professor Peter Alberti at Transcript 3 Question 282 agreed that the respondent had suffered a dramatic change for the worse in his hearing since joining the Army but at Question 335 he described the respondent’s hearing loss as mild to moderate. Commandant Thomas O’Brien at Transcript 4 Question 93 said that the respondent’s hearing in military terms was more than moderately impaired.

The foregoing descriptions of the respondent’s hearing loss and the effects thereof contrast with the more benign descriptions of the effects of different percentages of hearing disability at page 9 of the Green Book but nevertheless it is useful to bear in mind that in quiet surroundings on a one to one basis the respondent can hear whispered speech, living room and conversational speech but has such difficulties in a noisy environment that he had

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to give up duty serving in the officers’ mess. This was because of his inability to hear clearly orders for drinks or food or messages or whatever correctly against a background of other people speaking at the same time and the general noise to be expected in such circumstances or in any bar or place of public congregation.

It appears from uncontested evidence that noise induced hearing loss remains static once the excessive noise is eliminated or adequately protected against: the noise induced hearing loss does not recover but neither does it further deteriorate. It also appears from the evidence that noise induced hearing loss due to exposure to gun fire or other sudden loud noises causing what is known as “acoustic trauma” is likely to be overtaken by age related hearing loss to a somewhat lesser extent or more slowly than noise induced hearing loss which was induced more gradually by exposure to industrial noise over a prolonged period.

The formula in Chapter 7 of the Green Book which is quoted in the schedule to the 1998 Act translates an ascertained noise induced decibel hearing loss into a noise induced percentage hearing disability. In this case it is agreed that that formula works out at 9% noise induced hearing disability including the 2% for tinnitus. The Green Book does not however give any indication as to the level or manner of compensation for such ascertained percentage noise induced hearing disability. It is for the courts to measure the appropriate compensation.

The learned trial judge produced Schedule A and made his calculations of damages in accordance therewith. As I understand his judgment the first figure of £24,750 which is described in the High Court Order as drawn up and perfected as “general damages to date” is in fact compensation for the 9% noise induced hearing disability as at the date of the trial and also looking backwards to include the period since the noise induced hearing disability commenced and also looking forwards into the future to age 60-62 years or thereabouts. This in my view is a correct approach to the assessment of the damages because the noise

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induced hearing disability was at the date of the trial ascertained and precautions had been put in place against any further noise induced hearing disability or deterioration therein which would therefore remain at 9% to that age and indeed for the rest of the respondent’s life. What then about compensation for the 9% noise induced hearing disability for the rest of the Respondent’s life? The answer to that question is complex and requires a consideration of age related hearing loss.

Age related hearing loss is discussed at pages 68 and 69 of the Green Book. It is stated that such hearing loss becomes significant at the age of 70 years in males and 78 years in females. However the learned trial judge has pointed out in his judgment that the evidence before him indicated that pages 68 and 69 of the Green Book were not completely reliable and that more accurate and reliable figures were to be found from the application of the formula at page 6 of I.S.O. 1999 which would indicate that age related hearing loss becomes significant from about 60-62 years in males and correspondingly later in females. I regard the formula at page 6 paragraph 5.1 of I.S.O. 1999 as representing age related hearing loss. In so far as the formula refers to “a noise exposed population” that means the ordinary exposure to noise of people living in the modern world - for example, urban dwellers as distinct from rural dwellers in a particularly quiet countryside. See also paragraph 5.2 and annex B at page 11 of I.S.O. 1999.

“Some subjects in the population tested have to be assumed to have had unreported occupational or other noise exposure.

In dealing with this case and similar cases arising from gun fire noise adequate ear protection or the removal of the person altogether from gun fire noise by leaving the army or otherwise will result in no further deterioration from that source of noise but will not result in

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any improvement in hearing. Such a person’s hearing will however continue to deteriorate with age alone and if coupled with the normal exposure to noise of modern life it will deteriorate on the basis set out in the formula in paragraph 5.1 at page 6 of I.S.O. 1999.

Age related hearing loss would not of course be compensable in itself as it is a natural phenomenon. As however noise induced hearing loss and age related hearing loss are to some extent both additive and overlapping, a figure for the future additive disability from about 60-62 years of age in males and correspondingly older in females may be added even though it is age related because if the noise induced hearing loss had not been wrongly suffered in the first place by the claimant the age related hearing loss would be a minor matter but when added to the noise induced hearing loss it is much more significant. As against that the Tables at pages 68 and 69 of the Green Book and Part 2 of the Schedule to the 1998 Act provide for a deduction of percentage points from age 70 years onwards in males and 78 years onwards in females in respect of age related hearing loss.

In the present case the percentage increase in the hearing loss at 60-62 years or so was agreed by both parties in the High Court at 13% making a total hearing disability from 60-62 years or so of 22% including the 2% for tinnitus. This additional 13% was calculated by the learned trial judge at £37,500 in accordance with his Schedule A and was then actuarially discounted to £15,825 being the figure for future general damages in the Order of the High Court. We were told by counsel for the State that the additional percentage disability figure of 13% was in fact mistakenly and erroneously agreed by the State and that the figure should have been only 4% (presumably the additive element of the age related hearing loss?) which would indicate a discounted figure for future general damages of about £4,870. However what was agreed was agreed and it is not open to the State to seek such a reduction now, nor indeed do they really seek to do so.

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Apart from that reduction to £4,870 or so reflecting the reduction from 13% to 4% it seems to me in any event that the figure of £15, 825 as a discounted figure is too high. This factor of future age related hearing loss and also the continuing noise induced hearing loss should be limited to a period from age about 60-62 years to age about 70-75 years in males and from whatever is the corresponding age as per I.S.O. 1999 and 78-83 years in females. This is because the age related hearing loss would by then in any event have more or less caught up with the noise induced hearing loss so that the overall hearing of the plaintiff in question as at or about those ages would be much the same whether they had or had not suffered noise induced hearing loss and therefore neither the calculation for future age related hearing loss nor for noise induced hearing loss after 60-62 years in males and correspondingly in females should be on a whole life basis.

The respondent was aged 35 years at the date of the High Court trial. His noise induced hearing disability was agreed at 9%. By reference to his Schedule A the learned trial judge multiplied his figure for a 35 year old man namely £2,750 x 9 giving the first general damages figures in the Order of the High Court of £24,750 as already mentioned.

If one takes a man of 35 years with a noise induced disability of 17% and applies Schedule A one gets:-

£2,750 x 10 =	£27,500	
£5,500 x 7 =	£38500	
Total for 17%	£66,000	

Such a man can still hear whispered speech on a one to one basis.

For a similarly aged man with 20% noise induced hearing disability one gets:-

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£2,750 x 10 =	£27,500	
£5,500 x 10= 	 £55,000	
Total for 20%	£82,500	

Such a man can still hear living room and conversational speech.

Finally a similarly aged man with 25% noise induced hearing disability would get:-

£2,750 x 10 =	£27,500	
£5,500 x 15=	£82500	
Total for 25%	£110,000	

Such a man can still hear conversational speech on a one to one basis.

By reference to Table 1 at page 9 of the Green Book and not overlooking the fact that the descriptions there contained presuppose a quiet and peaceful environment these figures are much too high and increasingly so as one goes up the scale of percentage disability. The corresponding figures taken from Schedule B are:-

At 9%	£12,375.00	
At 17%	£25,781.00	
At 20%	£30,938.00	
And at 25%	£39,531.00	

Before producing Schedule B the State had produced a version of Schedule A commencing with the basic starting figure of £750 for 1% noise induced hearing disability at age 60 years increasing to £1,500 at age 30 years and £1,625 at age 25 years. The basic

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starting figure from 11% onwards was £938 for 1% at 60 years increasing to £1,875 at age 30 years and to £2,031 at age 25 years.

On this State version of Schedule A the State showed in brackets figures purporting to be for future noise induced hearing disability included in the foregoing figures. These figures for future noise induced disability were never adequately explained to this court: it is however clear that they did not provide for the future beyond 60 years because the figures for 60 years showed zero in brackets. They did not therefore make provision for the cumulative effects of noise induced hearing disability and additive age related hearing disability continuing after 60 years and which I think should be provided for on the basis which I have explained above but should be limited to a period thereafter of about ten to fifteen years.

Bearing in mind the sort of problems and the social isolation endured in any sort of noisy environment by a person with the foregoing percentage noise induced hearing disabilities I am of the view that the figures in the State’s version of Schedule A and in the State’s own Schedule B are too low. They make no provision for the continuing noise induced hearing loss and the additive age related hearing loss after 60 years which by reference to pages 68 and 69 of the Green Book would continue in the case of males to about 70-75 years and in the case of females to about 7 8-83 years. Provision should therefore be made for 10 to 15 years future loss commencing in the case of males at about 60-62 years and in the case of females correspondingly higher in accordance with I.S.O. 1999 paragraph 5. Such future loss should be limited to 10 to 15 years and should not be on a whole life basis.

The most practical and fair way of assessing the general damages past, present and future for a plaintiff such as the respondent in this case for noise induced hearing disability and for future age related hearing disability in so far as it will probably be cumulative or

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additive is to increase the figures in Schedule B across the board by 25%. Having made such an increase of 25% one gets the following result for the above percentages:

At 9%	£15,468.00	
At 17%	£32,226.00	
At 20%	£38,672.00	
At 25%	£49,413.00	

I am satisfied that the above figures taken from Schedule B plus 25% would provide fair, just and reasonable past, present and future general damages for any person similarly circumstanced as the respondent and with the same 9% noise induced hearing disability stated above. I am also satisfied that Schedule B plus 25% across the board would likewise afford fair, just and reasonable past, present and future general damages for any person of the ages and with the percentage noise induced hearing disabilities provided for in Schedule B in the absence of special circumstances of substance.

I should add that Schedule B as annexed to this judgment is as provided by the State and I assume but do not guarantee that there are no clerical or printing or mathematical errors therein. The State should prepare a revised Schedule B to include the additional 25% across the board, to be known as the Adjusted State Scale. Such scale might then be used as a guide, but by no means an inflexible guide, by trial judges in assessing general damages for noise induced hearing disability.

I emphasise however that this judgment is not intended to require rigid unbending adherence to the scales set out in Schedule B plus 25%. The theory of damages remains the same as it has always been. The circumstances of each individual plaintiff must be

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ascertained and proper compensation awarded for disabilities and disadvantages suffered by him as a result of the wrong of the defendant. It must also be remembered that the 1998 Act and the Green Book apply to “all proceedings claiming damages for personal injury arising from hearing loss” and not merely to what are commonly known as Army Deafness Cases. The figures in Schedule B plus 25% provide for compensation in the ordinary case from the age of the plaintiff at the time of trial by way of past, present and future general damages for the noise induced hearing disability and for future cumulative or additive age related hearing disability limited to 70-75 years of age in the case of males and to 78-8 3 years of age in the case of females, from which ages the overall hearing of the plaintiff in question would be more or less the same whether or not they had suffered noise induced hearing loss.

The schedules whether Schedule A or Schedule B deal only with the assessment of general damages in respect of noise induced hearing disability wrongly inflicted upon a plaintiff together with the added effect of age related hearing disability which were it not for the noise induced hearing disability wrongly suffered would not be a matter of any consequence. Obviously it may be established as a matter of probability that a particular plaintiff will suffer a loss of a realistic prospect of job opportunity while he remains in the army or on having left the army in the future in which event of course compensation must be provided in respect of such loss. In the present case the learned trial judge allowed a sum of £10,000 to the respondent in respect of loss of opportunity to serve in the Lebanon which he had availed of on four previous occasions in the past and/or opportunities for promotion in the army. There was adequate evidence to support this finding and award by the learned trial judge in this case and accordingly this court will not interfere with that aspect of the award.

I have already declined to interfere with the award of future general damages in the sum of £15,825.00 and I have just now declined to interfere with the award of £10,000.00 for

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loss of the opportunity of extra remuneration by going to the Lebanon in the future and/or loss of the opportunity of promotion in the army. That leaves only the sum of £24,750.00 in respect of general damages for the 9% noise induced hearing disability suffered by the respondent as a result of the wrong of the State. Strictly speaking the correct figure for that disability would be £15,468.00 in accordance with Schedule B plus 25% but Counsel for the State has indicated that the State would not be seeking any reimbursement from the respondent irrespective of the judgment of this court this case having been chosen as a test case by agreement of the parties and their legal advisers. In the circumstances and from a practical point of view I would therefore decline to alter the figure of £24,750.00 and would accordingly dismiss this appeal.

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SCHEDULE A

AGE	1%-10%	11%-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	

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SCHEDULE B

H’cap	.	2	3	4	5	6	7	8	9	10	11	12	
Age.	£	£	£	£	£	£	£	£	£	£	£	£	
25	1,625	3,250	4,875	6,500	8,125	9,750	11,375	13,000	14,625	16,250	18,281	20,313	
26	1,600	3,200	4,800	6,400	8,000	9,600	11,200	12,800	i4,400	16,000	18,000	20,000	
27	1,575	3,150	4,725	6,300	7,875	9,450	11,025	12,600	14,175	15,750	17,719	19,688	
28	1,550	3,100	4,650	6,200	7,750	9,300	10,850	12,400	13,950	15,500	17,438	19,375	
29	1,325	3,050	4,575	6,100	7,625	9,150	10,675.	12,200	13,725	15,250	17,156	19,063	
30	1,500	1,000	4,500	6,000	7,500	9,000	10,500	12,000	13,500	15,000	16,875.	18,750	
31	1,475	2,950	4,425	5,900	7,375	8,850	10,325	11,800	13,275	14,750	16,594	18,438	
32	1,450	2,900	4,350	5,800	7,250	8,700	10,150	11,600	13,050	14,500	16,313	18,125	
33	1,425	2,850	4,275	5,700	7,125	8,550	9,975	11,400	12,825	14,250	16,031	17,813	
34.	1,400	2,800	4,200	5,600	7,000	8,400	9,800	11,200	12,600	14,000	15,750	17,500	
35	1,375	2,750	4,125	5,500	6,875	8,250	9,625	11,000	12,375	13,750	15,469	17,188	
36	1,350	2,700	4,050	5,400	6,750	8,100	9,450	10,800	12,150	13,500	15,188	16,875	
37	1,325	2,650	3,975	5,300	6,625	7,950	9,275	10,600	11,925	13,250	14,906	16,563	
38	1,300	2,600	3,900	5,200	6,500	7,800	9,100	10,400	11,700	13,000	14,625	16,250	
39	1,275	2,550	3,825	5,100	6,375	7,650	8,925	10,200	11,475	12,750	14,344	15,938	
40	1,250	2,500	3,750	5,000	6,250	7,500	8,750	10,000	11,250	12,500	14,063	15,625	
41	1,225	2,450	3,675	4,900	6,125 .	7,350	8,575	9,800	11,025	12,250	13,781	15,313	
42	1,200	2,400	3,600	4,800	6,000	7,200	8,400	9,600	10,800	12,000	13,500	15,000	
43	1,175	2,350	3,525	4,700	5,875	7,050	8,225	9,400	10,575	11,750	13,219	14,688	
44	1,150	2,300	3,450	4,600	5,750	6,900	8,050	9,200	10,350	11,500	12,938	14,375	
45	1,125	2,250	3,375	4,500	5,625	6,750	7,875	9,000	10,125	11,250	12,656	14,063	
46	1,100.	2,200	3,300	4,400	5,500	6,600	7,700	8,800	9,900	11,000	12,375	13,750	
47	1,075	2,150.	3,225	4,300	5,375	6,450	7,525	8,600	9,675	10,750	12,094	13,438	
48	1,050	2,100 .	3,150	4,200	5,250	6,300	7,350	8,400	9,450	10,500	11,813	13,125	
49	1,025	2,050	3,075	4,100	5,125	6,150	7,175	8,200	9,225	10,250	11,531	12,813	
50	1,000	2,000	3,000	4,000	5,000	6,000	7,000	8,000	9,000	10,000	11,250 .	12,500	
51	975	1,950	2,925	3,900	4,875	5,850	6,825	7,800	8,775.	9,750	10,969	12,188	
52	950	1,900	2,850	3,800	4,750	5,700	6,650	7,600	8,550	9,500	10,688	11,875	
53	925	1,850	2,775	3,700	4,625	5,550	6,475	7,400	8,325	9,250	10,406	11,563	
54	900	1,800	2,700	3,600	4,500	5,400	6,300	7,200	8,100	9,000	10,125	11,250	
55	875	1,750	2,625	3,500	4,375	5,250	6,125	7,000	7,875	8,750	9,844	10,938	
56	850	1,700	2,550	3,400	4,250	5,100	5,950	6,800	7,650	8,500	9,563	10,625	
57	825	1,650	2,475	3,300	4,125	4,950	5,775	6,600	7,425	8,250	9,281	10,313	
58	800	1,600	2,400	3,200	4,000	4,800	5,600	6,400	7,200	8,000	9,000	10,000	
59	775	1,550	2,325	3,100	3,875	4,650	5,425	6,200	6,975	7,750	8,719	9,688	
60	750	1,500	2,250	3,000	3,750	4,500	5,250	6,000	6,750	7,500	8,438	9,375	

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H’cap	13	14	15	16	17	18	19	20	21	22	23	24	25	
Age	£	£	£	£	.£	£	£	£	£	£	£	£	£	
25	22,344	24,375	26,406	28,438	30,469	32,500	34,531	36,563	38,594	40,625	42,656	44,688	46,719	
26	22,000	24,000	26,000	28,000	30,000	32,000	34,000	36,000	38,000	40,000	42,000	44,000	46,000	
27	21,656	23,625	25,594	27,563	29,531	31,500	33,469	35,438	37,406	39,375	41,344	43,313	45,281	
28	21,313	23,250	25,188	27,125	29,063	31,000	32,938	34,875	36,813	38,750	40,688	42,625	44,563	
29	20,969	22,875	24,781	26,688	28,594	30,500	32,406	34,313	36,219	38,125	40,03)	41,938	43,844	
30	20,625	22,500	24,375	26,250	28,125	30,000	31,875	33,750	35,625	37,500	39,375	41,250	43,125	
31	20,281	22,125	23,969	25,813	27,656	29,500	31,344	33,188	35,031	36,875	38,719	40,563	42,406	
32	19,938	21,750	23,563	25,375	27,188	29,000	30,813	32,625	34,438	36,250	38,063	39,875	41,688	
33	19:594	21:375	23:156	24:938	26:719	28:500	30:281	32:063	33,844	35:625	37,406	39,188	40,969	
34	19,250	21,000	22,750	24,500	26,250	28,000	29,750	31,500	33,250	35,000	36,750	38,500	40,250	
35 	18,906	20,625	22,344	24,063	25,781	27,500	29,219	30,938	32,656	34,375	36,094	37,813	39,531	
36	18,563	20,250	21,938	23;625	25,313	27,000	28,688	30,375	32,063	33,750	35,438	37,125	38,813	
37	18,219	19,875	21,531	23,188	24,844	26,500	28,156	29,813	31,469	33,125	34,781	36,438	38,094	
38	17,875	19,500	21,125	22,750	24,375	26,000	27,625	29,250	30,875	32,500	34,125	35,750	37,375	
39	17,531	19,125	20,719	22,313	23,906	25,500	27,094	28,688	30,281	31,875	33,469	35,063	36,656	
40	17,188	18,750	20,313	21,875	23,438	25,000	26,563	28,125	29,688	31,250	32,813	34,375	35,938	
41	16,844	18,375	19,906	21,438	22,969	24,500	26,031	27,563	29,094	30,625	32,156	33,688	35,219	
42	16,500	18,000	19,500	21,000	22,500	24,000	25,500	27,000	28,500	30,000	31,500	33,000	34,500	
43	16,156	17,625	19,094	20,563	22,031	23,500	24,969	26,438	27,906	29,375	30,844	32,313	33;781	
44	15,813	17,250	18,688	20,125	21,563	23,000	24,438	25,875	27,313	28,750	30,188	31,625	33,063	
45	15,469	16,875	18,281	19,688	21,094	22,500	23,906	25,313	26,719	28,125	29,531	30,938	32,344	
46	15,125	16,500	17,875	19,250	20,625	22,000	23,375	24,750	26,125	27,500	28,875	30,250	31,625	
47	14,781	16,125	17,469	18,813	20,156	21,500	22,844	24,188	25,531	26,875	28,219	29,563	30,906	
48	14,438	15,750	17,063	18,375	19,688	21,000	22,313	23,625	24,938	26,250	27,563	28,875	30,188	
49	14,094	15,375	16,656	17,938	19,219	20,500	21,781	23,063	24,344	25,625	26,906	28,188	29,469	
50.	13,750	15,000	16,250	17,500	18,750	20,000	21,250	22,500	23,750	25,000	26,250	27,500	28,750	
51	13,406	14,625	15,844	17,063	18,281	19,500	20,719	21,938	23,156	24,375	25,594	26,813	28,031	
52	13,063	14,250	15,438	16,625	17,813	19,000	20,188	21,375	22,563	23,750	24,938	26,125	27,313	
53	12,719	13,873	15,031	16,188	17,344	18,500	19,656	20,813	21,969	23,125	24,281	25,438	26,594	
54	12,375	13,500	14,625	15,750	16,875	18,000	19,125	20,250	21,375	22,500	23,625	24,750	25,875	
55	12,031	13,125	14,219	15,313	16,406	17,500	18,594	19,688	20,781	21,875	22,969	24,063	25,156	
56	11,688	12,750	13,813	14,875	15,938	17,000	18,063	19,125	20,188	21,250	22,313	23,375	24,438	
57	11,344	12,375	13,406	14,438	15,469	16,500	17,531	18,563	19,594	20,625	21,656	22,688	23,719	
58	11,000	12,000	13,000	14,000	15,000	16,000	17,000	18,000	19,000	20,000	21,000	22,000	23,000	
59	10,656	11,625	12,594	13,563	14,531	15,500	16,469	17,438	18,406	19,375	20,344	21,313	22,281	
60	10,313	11,250	12,188	13,125	14,063	15,000	15,938	16,875	17,813	18,750	19,688	20,625	21,583