Brien Fenlon (plaintiff) v The Minister for Defence, Ireland and the Attorney General (defendants).
Negligence - Claim for damages for noise induced hearing loss and tinnitus - Plaintiff a member of the FCA for five years - Plaintiff left the force in 1968 - Negligence admitted - Rule to be applied where conflict of expert evidence.
The High Court (before Mr Justice Kelly); judgment delivered 19 Jan- uary 1998.
WHERE there is expert testimony, in the event of different audiogram tests giving different results, the appropriate one to utilise with a view to expressing an opinion or making a finding is that which demonstrates the best result.
The High Court so held in dismissing the plaintiff's claim.
Iarfhlaith O'Neill SC and Vincent Foley BL for the plaintiff; Gerard Clarke SC and Dara Foynes BL for the defendants.
MR JUSTICE KELLY said that the plaintiff was 51 years old and married with six children. In his direct evidence the Plaintiff stated that he joined the FCA in 1961 when he was fifteen years old and remained a member of that force for the following seven to eight years. In cross-examination he accepted that he was incorrect as to the date upon which he joined the force. In fact he did not do so until November 1963. In cross-examination he also accepted that he was not a member of the FCA for seven to eight years but rather for a period of five years. He left that force in 1968 and the record of his service, which was put in evidence, showed an effective service of 4 years 41 days.
Apart from annual camp, his FCA activities were confined to weekends and Wednesday nights. On Wednesday nights he was involved in the dismantling and the assembly of weapons. At weekends he regularly attended at the firing ranges. There he would be on the range for up to six hours at a time. While on the firing-ranges he stated that there would be consistent gun-fire with as many as ten persons involved in it. During his years with the FCA he gained experience in firing a variety of weapons. These ranged from the old .303 Lee Enfield rifle to the Bren gun, Gustav machine gun and Vickers gun. When firing the Bren gun he would do so for periods of an hour and this was extended to periods of two hours in the case of the Vickers.
He also gained experience of mortars although that experience was gleaned exclusively in the Glen of Imaal while attending an annual camp for two weeks duration. Mortars would be used on a single day during that camp. As a result of his exposure to the noise generated by the firing of these guns he complained of a noiseinduced hearing deficit and of tinnitus. He sought to recover damages in respect of this condition which he claimed was brought about as a result of the negligence of the defendants. The defence delivered by the defendants on 10 October 1996 contended that the plaintiff's claim was statute-barred, denied negligence and breach of duty to the plaintiff, denied any loss or damage having been suffered by the plaintiff and alleged contributory negligence against him. The bulk of these defences were abandoned by the defendants. The question as to the plaintiff's action being time-barred was not pursued; negligence on the defendants' part was conceded and the allegations of contributory negligence were dropped. Mr Justice Kelly said that his task was to assess any damages to which the plaintiff might be entitled if he sustained injuries as a result of the admitted negligence of the defendants.
The plaintiff left the FCA in 1968. He said in evidence that in the late 1970s or early 1980s he became aware of hearing difficulties. He noticed that his hearing was failing a little and also noticed a buzzing in his ears which was intermittent. The failure in the hearing was not noticeable all the time. He described his hearing deficit as manifesting itself particularly in crowds. He described having a difficulty in hearing a conversation while in a crowd. He also described the necessity to have the volume of both radio and television turned up to an unacceptably high level for others who may be present in the room. He described in evidence the effects of this on both his social and domestic life. As to the complaint of tinnitus, he described it as intermittent and said that it affects his sleep until he gets asleep. It prevents him from going asleep for perhaps a few hours. Because of these difficulties in hearing, the plaintiff said that he tends to want to socialise in quieter places than his friends. He feels somewhat left out and is embarrassed at times by having to ask people to repeat themselves. The plaintiff's occupation from the time that he was in his teens was that of a vehicle maintenance man. From 1962 to 1991 he worked for a variety of employers in that capacity. Since 1991 he had been employed in a supervisory capacity by a company called Goode Concrete. As far as his work is concerned, the only drawback created for him by the hearing difficulties arises on occasions if he attempts to diagnose an engine noise.
Mr Justice Kelly said that notwithstanding his awareness of these hearing difficulties from as far back as the late 1970s or early 1980s, it was remarkable that he never at any stage sought medical advice in respect of them. Indeed, since he left the FCA in 1968 until 1996 he only once attended a doctor. That was in 1971 when he noticed bleeding from his left ear. As he was working adjacent to the Mater Hospital in Dublin he attended there where a procedure was carried out in out-patients which solved the problem.
Mr Justice Kelly was satisfied that up until 1996 the plaintiff regarded such hearing difficulties as he had as a normal part of his life. In 1996 he became aware of the fact that there might be a chance of recovering compensation against the defendants. 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 Charlement Clinic for an audiogram to be conducted. This was the first of a number of audiograms which were carried out. The evidence given by two ear, nose and throat surgeons was in conflict in a number of important respects.
Mr Fennell examined the plaintiff in June 1997 at the plaintiff's solicitor's request. At that time he had before him the result of the first audiogram which was conducted in the Charlement Clinic. That test was done on 27 August 1996 when the plaintiff was 50 years of age and the results of the test were put in evidence. Mr Fennell's view was that this audiogram demonstrated a mild hearing loss on the part of the plaintiff in respect of high-pitched sounds. He expressed the opinion that this hearing deficit was caused by noise. The deficit was particularly manifest in the upper part of the speech range between 4,000 and 6,000 Hz. Mr Fennell was of the view that the plaintiff would have difficulty in hearing conversation in company and with consonant sounds in particular. He was of the view that this impairment of hearing was due to exposure to noise. He expressed the opinion that the plaintiff would not have a loss of this type normally at his age. Such a loss suggested exposure to loud noise. Insofar as the complaint of tinnitus was concerned, he took the view that that matched with the loss demonstrated on the audigram. In the course of his direct evidence Mr Fennell was asked to comment upon the results of a further test carried out in Beaumont Hospital in July 1997. The Beaumont Hospital test fell into two parts. The first was a straightforward audiogram of both the right and left ear. The second part of the test was a cortical ERA test. This is a test which measures electrical impulses in the brain which are triggered by sound. It is conducted by the placing of electrodes in four places on the head. One electrode is placed on the forehead, two are placed behind each of the mastoids and the fourth is placed on the top of the head. The test takes an hour to an hour-anda-half to perform and it has the considerable merit that it does not require any subjective response from the person who is being tested.
Mr Justice Kelly said that Mr Fennell had no great familiarity with these tests and did not appear to put a great deal of store in them. He preferred to rely on the ordinary audiogram, even though it required a subjective response on the part of the person being tested. At the conclusion of his direct evidence, the results of a third audiogram were put to him. This was carried out on 9 September 1997 by the Midland Health Board. At that stage in the case it appeared that this test was solely confined to an ordinary audiogram though later in the case it emerged that there was also a cortical ERA test carried out. Understandably, Mr Fennell had little familiarity with this test and so was unable to comment on it in detail. However, he did indicate in general terms that it fitted the pattern of the other tests which had been put to him.
In cross-examination he acknowledged that the audiogram carried out in the Charlemont Clinic in August 1996 had been done at the behest of the plaintiff's solicitor who had referred the plaintiff to that clinic. He acknowledged that the cortical ERA test measures brain stem activity and does not require a subjective response from the patient.
