Minister's Army deafness formula outlined

The Minister for Defence yesterday presented to the Supreme Court a formula to assist the courts in calculating damages in Army deafness cases.

While the formula is based on one drafted by the High Court judge, Mr Justice Johnson, in the case of Pte Kevin Hanley, its £750 "baseline" figure for damages for each percentage of hearing loss at the age of 60 years is half of the £1,500 figure advanced by Mr Justice Johnson.

Mr Adrian Hardiman SC, with Mr Padraig McCartan SC, for Pte Hanley, opposed the Minister's formula, arguing it did not provide for future hearing loss.

The formula was presented on the second day of the State's Supreme Court appeal against Mr Justice Johnson's award of £50,575 damages to Pte Hanley (37), a father of two, of Old Cork Road, Limerick, who served with the Army for 18 years and was exposed to gunfire without ear protection until the end of the 1980s.

He was found to have a current hearing disability of 9 per cent and a projected 22 per cent disability at age 60.

The Minister argues the award is excessive. The appeal concluded yesterday and judgment was reserved.

In making the award to Pte Hanley, the High Court judge, at the request of the State, set out a new formula for assessing damages which has been largely followed in subsequent hearing loss cases.

The formula took account of the ageing process in regard to hearing loss.

In the appeal, the Minister argues his problem is not so much with the formula set out by the judge, but with the judge's conversion of that formula into a sum of money and particularly his adoption of a "baseline" figure of £1,500 for each percentage of disability at age 60.

In his decision on the Hanley case, Mr Justice Johnson said while the Green Book, introduced by legislation last year as a means of calculating hearing impairment in terms of percentage disability, was a fair and reasonable means of calculating disability, it had some serious gaps, including no provision for future deterioration caused by a combination of noise-induced hearing loss and age-related hearing loss.

He agreed with a previous decision that £1,500 was appropriate for one degree of disability at age 60 and produced a table setting out what figures were applicable at other ages.

These were £3,000 per degree of disability between 1-10 per cent at age 30; £2,750 at 35; £2,500 at 40; £2,250 at 45; £2,000 at 50; £1,750 at 55 and £1,500 at 60.

He assessed Pte Hanley's present 9 per cent disability at £2,750 per cent, making a total of £24,750.

He also awarded him £10,000 for future loss of earnings because his opportunities for serving in Lebanon were reduced. A further sum of £15,825 was allocated for a projected additional 13 per cent disability at age 60, making a total of £50,575. The formula presented to the Supreme Court yesterday by Mr James Nugent SC, for the Minister, sets out a scale which provides for £750 for each percentage of disability at age 60 rising to £1,625 per percentage disability at age 25.

The £750 baseline figure was calculated to give a reasonable level of compensation at all levels.

Mr Nugent said the scale slightly varied the formula set out by Mr Justice Johnson. It did not include future prognostication allowed for by the High Court.

Under the State formula, Pte Hanley would receive an award of between £12,000 and £13,000. Meanwhile, in the High Court later yesterday, Mr Justice Johnson refused an application by the Minister to adjourn other Army deafness actions pending the Supreme Court's judgment in the Hanley case.

The application was opposed by counsel representing solicitors for some of the soldier plaintiffs.