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Hassett v. Ireland [1999] IESC 87 (7th December, 1999)
THE
SUPREME COURT
No
114/98
Hamilton
C.J.
Denham
J.
Keane
J.
Murphy
J.
Lynch
J.
JAMES
HASSETT
APPELLANT
AND
THE
MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
[Judgments
by Denham J., Keane J. and Lynch J.; Hamilton C.J. agreed with Lynch J.; Murphy
J. agreed with Lynch J. and Keane J.]
JUDGMENT
delivered the 7th day of December 1999 by Lynch J.
1. This
is an Appeal by the Plaintiff/Appellant against a Judgment and Order of the
High Court (Laffoy J.) delivered and made on the 27th January 1998 whereby the
Appellant was awarded £45,110 damages in respect of noise induced hearing
loss. The damages were assessed as follows:-
2. Special
damages (agreed) £110.00
|
(1)
Pain and suffering to date
|
£10,000
|
|
(2)
Pain and suffering in the future
|
£35,000
|
|
Total
|
£45,110
|
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_____________________
(2)
4. No
issue arose on liability or causation. Accordingly the trial involved only an
assessment of the damages appropriate to the noise induced hearing loss and its
consequences suffered by the Appellant owing to the negligence of the
Respondents. The damages were assessed in accordance with the ordinary
principles of law and of course without any regard to the Civil Liability
(Assessment of Hearing Injury) Act, 1998, which was passed into law on the 12th
May 1998 and came into operation on the 12th May 1998 some three and half
months after the assessment in this case.
5. The
Appeal is taken on the following grounds:-
“.1.
The level of Quantum awarded for pain and suffering to date does not reflect
the severity of the Plaintiff’s injury.
2. The
level of Quantum awarded for pain and suffering into the future does not
reflect the severity of the Plaintiff’s injury.
3. The
Honourable Trial Judge misdirected herself in law and fact in factoring the
capital cost of £15,880 for Hearing Aids, into the Quantum for General
Damages, which said capital cost while not accepted by the Defendants was not
refuted by any or any expert medical evidence or other evidence.
4. The
Honourable Trial Judge misdirected herself in law and fact in holding that the
Appellant was not at the loss of opportunity for promotion to Sergeant Major
because of his hearing loss.”
6. The
Plaintiff was born on the 4th July
1954.
He
joined the Army in October 1971 at 17 years of age following a family tradition
of military service. He was promoted to the rank of Corporal in October 1972 at
the age of 18 years. He was promoted Acting Sergeant in
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_____________________
(3)
1974
at 20 years of age and full Sergeant about two years later. Thereafter he was
promoted Acting Company Sergeant and finally in 1982 at the age of 28 years he
was promoted full Company Sergeant which was the rank held by him at the date
of trial when he was aged 43½ years.
7. As
the learned Trial Judge stated in her judgment:-
“He
has been promoted through the ranks and has served with distinction.
The
Plaintiff is and always has been a career soldier. His ambition has been
twofold: to remain in the army until age 60, and to reach the rank of Battalion
Sergeant Major, the highest non-commissioned rank in the army.”
8. The
trial of this action was heard over a period of some eight months, commencing
on the 7th and 8th May 1997, resuming on the 17th June 1997 when however no
evidence was heard and concluding on the 20th January 1998 when judgment was
reserved for one week. The reason for these adjournments was uncertainty as to
whether the Appellant would or would not be discharged from the Army before he
was 60 years of age by reason of his hearing disability. That uncertainty was
ultimately resolved by the coming into force of new regulations providing for
revised fitness grading of Army personnel which guaranteed that so far as the
Appellant’s hearing was concerned he would not be discharged from the
Army before 60 years of age. As the learned Trial Judge put it:-
“As
the introduction of a revised grading system for keenness of hearing was
imminent the matter was adjourned pending such introduction. Under the revised
Regulation 7] recently implemented the Plaintiff falls within Grade 5. Even
though it is anticipated that his hearing will deteriorate with age, it is
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_____________________
(4)
clear
on the evidence, and indeed it is common case, that there is no prospect that
before age 60 the combined effect of his noise induced hearing loss and the
ageing process will bring him within the next grade, Grade 7’, with the
risk of discharge from the army.
Accordingly
the probability of discharge from the army for disability on account of hearing
loss is no longer a factor in the case.”
9. The
learned Trial Judge then continued by describing the Appellant’s hearing
as follows:
“The
issues which remain are, first of all, the level of the Plaintiff’s
hearing problem. On this issue I have the uncontested evidence of Mr F. G.
Darcy, Consultant Ear, Nose and Throat Surgeon of the Royal Victoria Hospital,
Belfast. Mr Darcy’s conclusion, having examined the Plaint if in October
1996 and in March 1997, was that there was evidence of hearing loss in both
ears, worse at higher frequencies and worse at four kilohertz. The situation
will get progressively worse with age. The results of the pure tone audiograms
conducted by Mr Darcy are set out in his reports which have been admitted in
evidence, and it is not necessary to record the results in detail here. Suffice
it to say that the results show an average hearing threshold of 52 decibels in
the left ear and 50 decibels in the right ear, on the basis of averaging at
one, two, and four kilohertz.
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(5)
The
Plaintiff also suffers from tinnitus which Mr Darcy characterised as moderate
to severe. He also complains of hyperacusis, intolerance to loud noise; a
symptom which Mr Darcy considers to be permanent.”
10. While
the foregoing description suggests very serious hearing trouble, the position
is not quite that bad in practical terms. The Appellant’s own evidence in
cross-examination at Questions
53
to
59
of
the transcript for the 7th May 1997 gives a clearer picture of the actual
effects of his hearing problems for him as follows:-
“53
Q. Mr Hassett when was the first time that you noticed any difficulty with your
hearing?
A. The
first time I myself personally noticed anything with my hearing was when I done
the audiogram with Mr Fennell back in 1994.
54
Q.
And
until 1994 then you didn't consider your hearing to be in anyway abnormal or
unusual?
A. No
I personally didn't consider it to be, no.
55
Q. Yes, and apart from not personally considering it to be unusual or affected
this is your hearing, no one had remarked to that effect to you?
A. Well
the main person that remarked about it was my wife, on numerous occasions prior
to that she remarked to me mainly when I checked my two daughters or with the
7’. V at a certain level she remarked I’d ‘want to get my
hearing seen to’ or words to that effect, that was all.
56. Q.
Yes, you yourself until the examination in 1994 didn’t consider that you
had any problem with your hearing until you were told that you did have such a
problem, isn't that right?
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break
_____________________
(6)
A. That
is correct. Yes.
57. Q.
And it follows from that during the course of your duties as Company Sergeant
in Dundalk you were able to perform those perfectly and without any difficulty?
A. I
am still performing my duties without any great difficulty.
58. Q.
Yes, and whatever hearing loss you had in the past before 1994 didn't interfere
with your life in anyway isn't that correct?
A. Oh,
its not interfering a great deal now either, its just on the social end of it
like the 7’. V, telephone, lam still performing all my given tasks.
59. Q.
Perfectly and adequately in fact very well, isn't that correct?
A. That
is correct yes.”
11. In
the light of the foregoing evidence, the assessment of general damages to date
in the sum of £10,000 manifestly cannot be disturbed.
12. As
regards the provision of hearing aids and the issue of future general damages
the learned Trial Judge said:-
“The
second issue is hearing aids. Mr Darcy testified that the Plaintiff will
benefit from using hearing aids in both ears. The type of hearing aid he had in
mind costs £2, 000 Sterling per unit, and he would envisage replacements
every five years. It is agreed that the capital cost in actuarial terms of
providing and replacing two hearing aids every five years at the cost of
£2, 000 per unit during the normal life expectancy of a man of the
Plaintiff’s age is £15,880. However, while the Defendants agree that
that computation is correct, they do not admit that the Plaintiff is entitled
to recover under this heading on the basis claimed.
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_____________________
(7)
There
would appear to me to be an element of ‘double accounting’ involved
in compensating the Plaintiff on the basis of loss of amenity and inconvenience
at his current and prospectively deteriorating levels, coupled with provision
for the capitalised value of hearing aids as claimed. It must be assumed that
such costly hardware would reduce the level of loss of amenity and
inconvenience, and correspondingly reduce the Plaintiff’s entitlement to
general damages.
The
approach which commends itself is to award a figure which properly reflects the
Plaintiff’s pain, suffering, loss of amenity and inconvenience currently
and prospectively unabated, while ensuring that there is factored into it the
capacity for the Plaintiff in the future to acquire hearing aids if he so
wishes. The appropriate figure in my view is £45, 000, which represents a
breakdown of £10, 000 for pain and suffering to date, and £35, 000
for pain and suffering in the future.”
13. The
foregoing is a reasonable approach to these issues of the cost present and
future of hearing aids and general damages for future pain and suffering. It is
an approach which is amply supported by credible evidence adduced at the trial
and ought not therefore to be interfered with.
14. Finally
there is the question of loss of the opportunities of promotion as to which the
learned Trial Judge said:-
“The
third issue is promotion to Battalion Sergeant Major. The Plaintiff claims that
he is likely to miss out on an opportunity to be promoted to the rank of
Battalion Sergeant Major before retirement, which would be open to him but for
his hearing impairment. To allow a claim under the heading of loss of
opportunity on this basis, I
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(8)
would
have to be satisfied that the Plaintiff has established on the balance of
probabilities that -first, a vacancy for a Battalion Sergeant Major which he is
interested in applying for i.e. in his own battalion, will arise, secondly,
leaving aside the question of hearing impairment he would be chosen to fill the
vacancy, and thirdly that his hearing impairment will preclude him from
promotion.
There
is a plethora of improbable involved in the foregoing three propositions, which
in my view the Plaintiff has not sufficiently eliminated to enable me to
conclude that it is probable that the Plaintiff will lose an opportunity.
Particularly imponderable is whether or when such a vacancy will arise, if at
all, given the existence of a proposal which is likely to be implemented to
amalgamate the 27th Infantry Battalion with the 29th Infantry Battalion, and
even more imponderable is the number and calibre of candidates for the post if
such vacancy should arise.”
15. Again
the foregoing findings are amply supported by credible evidence adduced at the
trial and ought not therefore to be upset.
16. The
result of all the foregoing is that this Appeal should wholly fail. We were
urged by Counsel for the Appellant however to send the matter back for retrial
in the light of the 1998 Act and the Green Book referred to therein and the
scale adopted by Johnson J. in the case of
Kevin
Hanley v The Minister for Defence
(unreported, High Court, Johnson J, 21st July 1998). Counsel for the Appellant
informed us that on that High Court scale the Appellant would be entitled to
over £100,000 damages. He also informed us that for some reason which was
not revealed to us the Appellant had left the Army and was now a Traffic Warden.
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(9)
17. Counsel
for the Respondents informed us that applying the formula contained in the
Green Book and in the Schedule to the 1998 Act the Appellant’s noise
induced hearing disability would be 16% plus 2% for tinnitus making a total of
18%.
The
case of
Kevin
Hanley
was
appealed and has just now been decided by this Court. The scale devised by
Johnson J. has been rejected by this Court and scales based on a lower basic
figure for each 1% noise induced hearing disability have been suggested rather
than the figures of £1,500 for each 1% from 1% to 10% and £3,000 for
each 1% from 1l% to 25% adopted by Johnson J.
18. It
is not really possible to calculate the percentage noise induced hearing
disability according to the formula in the Green Book from the evidence in this
case. The hearing thresholds of 52 decibels in the left ear and 50 decibels in
the right ear are arrived at by reference to readings from audiograms at 1, 2
and 4 kilohertz. The Green Book requires readings from 500 hertz and 1, 2 and 4
kilohertz. There appears to be some confusion between hertz and decibels in the
evidence of Mr D’Arcy the only hearing expert witness called at the trial
- see page 2 commencing at Question 10 and continuing to page 6 of the
Transcript for the 20th January 1998. Even if the Appellant’s noise
induced hearing disability calculated in accordance with the Green Book worked
out at 25% this would result in general damages for past, present and future
disability of the order of £40,000 to £45,000 or thereabouts
calculated in accordance with my Schedule B plus 25% as annexed to my judgment
in Hanley’s case.
19. In
all the circumstances I would dismiss this Appeal.
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THE
SUPREME COURT
114/98
Hamilton,
CJ
Denham,
J.
Keane,
J.
Murphy,
J.
Lynch,
J.
BETWEEN
JAMES
HASSETT
Appellant
AND
MINISTER
FOR DEFENCE, IRELAND
&
ATTORNEY GENERAL
Respondents
Judgment
delivered the 7th day of December, 1999, by Keane, J.
20. I
agree with the judgment of Lynch J and with the order which he proposes.
21. I
would merely add that, if this case were being dealt with on the basis of the
State Scale referred to in the judgments in
Kevin
Hanley v. Minster for Defence & Ors
in my view the figure to which he would be entitled would be the sum of
£33.063 representing compensation for a 25% hearing disability in a man
aged 44. To that, there would have to be added whatever was the appropriate
figure for NIHL additional to ARHL at age 60 discounted for immediate payment
and subject to the actuarial reduction, if any, mentioned by Lynch J in his
judgment in that case. On any view, that would probably be lower than the sum
actually awarded in the present case.
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THE
SUPREME COURT
No.
114/98
Hamilton,
C.J.
Denham,
J.
Keane,
J.
Murphy,
J.
Lynch,
J.
BETWEEN
JAMES
HASSETT
PLAINTIFF/APPELLANT
AND
THE
MINISTER FOR DEFENCE,
IRELAND
AND THE ATTORNEY GENERAL
DEFENDANTS/RESPONDENTS
Judgment
of Mrs. Justice Denham delivered the 7th day of December., 1999.
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-2-
22. I
am in agreement with the judgment of Lynch J. subject to his statement:
“Even
if the Appellant’s noise induced hearing disability calculated in
accordance with the Green Book worked out at 25% this would result in general
damages for past, present and future disability of the order of £40,000 to
£45,000 or thereabouts calculated in accordance with my Schedule B plus
25% as annexed to my judgment in Hanley’s case.”
23. I
am satisfied that if the disability worked out at
25%
and
the plaintiff was 44 years of age, then, as set out in my judgment in
Hanley’ s case, applying the Department of Defence hearing loss proposed
scale of damages, the sum would be £33,063. However, the scale is not
applicable in this case.
24. In
all the circumstances, as enumerated by Lynch J., I would dismiss the appeal.
© 1999 Irish Supreme Court
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