In a landmark judgment on Army hearing disability cases, the High Court yesterday laid down a compensation marker of £1,500 for every 1 per cent loss of hearing.
Mr Justice Lavan held that the Green Book, the Government's hearing disability assessment guide, was a fair and reasonable method of measuring hearing loss for compensating victims.
But he ruled that a court might in any given case consider the formula inappropriate where the evidence established that it should not be applied.
Mr Justice Lavan said the Civil Liability (Assessment of Hearing Injury) Act, 1998, was passed by the Government in the face of an avalanche of claims which continued to increase at a rate of 100 a week.
Section 4 of the Act empowered the courts, in determining the extent of the injuries, to have regard to the Green Book drawn up by experts as a guide to establishing hearing loss.
"The requirement to have regard to the Green Book does not, however, 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," Mr Justice Lavan said.
He said the court might then determine which was the most appropriate solution in each individual case. In the absence of a more appropriate alternative solution having been established to the satisfaction of the court, the statutory formula (Green Book) should be applied.
He said the circumstances in which the Green Book would not be applied would be a matter for the determination of the court in the circumstances of each individual case.
Mr Justice Lavan said this group's report, based on published scientific evidence, set out the basis for establishing the formula for assessing hearing disability. A group of doctors appearing for litigants then prepared their own report, which he referred to as the Blue Book. In the case before the court, a former Army marksman, Mr James Greene (59), had sued the State for compensation for noise-induced hearing loss and tinnitus. In 1993 he had been examined by an Army Medical Corps doctor who reported a hearing loss of 40 decibels at 4,000 hertz in the right ear.
This finding had been uncontroverted, and it was for the court to decide what level of hearing disability this entailed and whether Mr Greene suffered from tinnitus.
"I regret to say I found his evidence unconvincing as to the problems of noise-induced hearing loss and tinnitus following his medical examination in 1993," Mr Justice Lavan said. "I found his wife, Patricia, to be unconvincing as to the onset and symptoms of his complaints."
The judge said an audiogram put in evidence on behalf of Mr Greene revealed a 2 per cent hearing loss, which coincided with the assessment of hearing loss put forward by the State in applying Green Book criteria. He felt it was of marked significance that Mr Greene had been referred to his expert by his solicitor and not his doctor.
He accepted the evidence of the State expert, Prof Peter Alberti, who had described the Green Book as a workmanlike compromise which favoured the people who were claiming.
Assessing damages for Mr Greene, Mr Justice Lavan said it was common case that he had a 2 per cent noise-induced hearing loss, and for that he had to be compensated. He was not satisfied Mr Greene suffered from tinnitus.
Quoting a judicial authority, Mr Justice Lavan said deafness was an underrated affliction. The hardships imposed by blindness were there for all the sighted to see. More imagination was needed to picture the isolation, frustration and fatigue endured by those who could not hear. Hardness of hearing could be sometimes as much a matter for derision as for sympathy.
He said Mr Greene's hearing loss was minor and he had been unaware of any problem before his examination in 1993. He awarded him £3,000 damages, and adjourned the question of costs until the next legal term.