An action for damages for alleged hearing impairment taken by a former part-time soldier who served four years with the FCA almost 30 years ago was yesterday dismissed in the High Court.
Mr Justice Kelly said he regarded the action by Mr Brian Fenlon as "rather opportunistic". The judge expressed the opinion that, insofar as Mr Fenlon does suffer any hearing impairment, this was no different to other persons of his age who had not been subjected to unusual noise.
Mr Fenlon had not made out a case that such tinnitus as he suffered from could be attributed to noise he was subjected to while in the FCA, the judge said.
Mr Fenlon (51), a father of six, had sued the Minister for Defence, Ireland and the Attorney General, alleging he had sustained hearing impairment and tinnitus while serving with the FCA. Costs of the case, which are estimated at around £15,000, were awarded to the State.
Delivering judgment yesterday, Mr Justice Kelly said that notwithstanding the length of time Mr Fenlon said he had been complaining of hearing impairment and tinnitus, he had never once consulted a doctor in respect of it.
"I find it difficult to believe that if his position is as alleged, at no stage during these many years did he ever seek the advice of a doctor concerning his condition," the judge said. "I think he regarded his hearing condition as being simply part and parcel of his normal life and one of the disadvantages of growing older.
"I am quite satisfied this plaintiff would never have consulted a doctor and still less a solicitor concerning this topic had he not been informed of the possibility of seeking compensation against the defendants. It was that information that caused him to seek advice.
"The first advice he sought was legal rather than medical. As a result, he found himself participating in medico-legal procedures which have ultimately resulted in him being in court in this rather opportunistic action.
"While I have some sympathy for him in the position in which he now finds himself, I am satisfied that his case is not made out and therefore it must be dismissed."
Mr Fenlon had served four years and 41 days with the FCA, the judge said. Apart from annual camp, his FCA activities were confined to weekends and Wednesday nights. At weekends, he regularly attended firing ranges for up to six hours at a time. He told the court that, while on the firing ranges, there would be consistent gunfire.
During his years with the FCA, the court was told, he gained experience in firing a variety of weapons. These ranged from the old .303 Lee Enfield rifles to the Bren gun, Gustav machine gun and Vickers gun. When firing the Bren gun, Mr Fenlon would do so for periods of one hour, He would fire the Vickers for two hours.
Mr Fenlon also had experience of mortars during the two-week annual camp in the Glen of Imaal, Co Wicklow.
Mr Justice Kelly said Mr Fenlon had stated that in the late 1970s or early 1980s he became aware of hearing difficulties. He noticed his hearing was failing a little and also noticed an intermittent buzzing in his ears. The failure in the hearing was not noticeable all the time.
Mr Fenlon had told of hearing difficulties while in crowds. He also needed to have radio and TV volume at an unacceptably high level for others.
Regarding the tinnitus complaint, Mr Fenlon stated he had a regular buzzing in his ears which was sometimes replaced by a rushing sound. This affected him about once a week but on occasions it would occur a few times a week.
The judge said that because of these difficulties in hearing, Mr Fenlon had told him he tended to want to socialise in quieter places than those frequented by his friends. He felt somewhat left out and was embarrassed at times by having to ask people to repeat themselves.
Mr Fenlon had worked as a vehicle maintenance man from 1962 to 1991. That was not a job done in quiet surroundings, the judge said.
Since 1991, Mr Fenlon had been employed in a supervisory capacity by a concrete company. As far as his work was concerned, the only drawback created for him by hearing difficulties arose if he attempted to diagnose engine noise.
Mr Justice Kelly said, notwithstanding Mr Fenlon's awareness of these hearing difficulties from as far back as late 1970s or early 1980s, it was remarkable that he never sought medical advice.
He had left the FCA in 1968 but from then until 1996 had only once attended a doctor. That was in 1971 when he noticed bleeding from his left ear. A procedure carried out at the outpatients department in a hospital resolved the problem.
"I am satisfied that up until 1996, the plaintiff regarded such hearing difficulties as he had as part of a normal part of his daily life," Mr Justice Kelly said. "In 1996, he became aware of the fact that there might be a chance of recovering compensation against the defendants," the judge said.
"Once he so realised, his first port of call was to his solicitor's office rather than a doctor's surgery. It was his solicitor rather than a doctor who referred him to the Charlemont Clinic for an audiogram to be conducted. This was the first of a number of audiograms which were carried out."
On the application of Mr Gerard Clarke SC, for the State, costs were awarded against Mr Fenlon.
A stay was granted in the event of an appeal.