The Supreme Court yesterday granted an appeal by the Minister for Defence against an award of £20,000 damages to a former soldier and ordered a new trial. It was the first appeal taken against the size of an award granted in the "Army deafness" cases.
The damages were awarded by the High Court to Mr Michael Smith (57), a former sergeant, of Avonmore Drive, Tallaght, Co Dublin, who served with the Defence Forces for more than 20 years and retired in 1992.
Mr Smith claimed he suffered hearing loss when exposed to gunfire without adequate ear protection.
The case was decided in February 1997 before legislation was brought in this year to deal with deafness cases.
The State appealed to the Supreme Court and yesterday the three-judge court overturned the award and remitted the matter to the High Court for a new trial.
The appeal to the Supreme Court was against the amount of damages only and a dismissal of the action was not sought. At the trial, it was conceded by the defence that Mr Smith was exposed to gunfire noise without adequate ear protection.
The only issue was whether the gunfire noise had caused any hearing loss.
Giving judgment, Mr Justice Lynch said in the absence of the assistance of the Civil Liability (Assessment of Hearing Injury) Act 1998, there was really no way of measuring a figure in the present case for damages which the court could be reasonably satisfied would be fair to both parties.
If the case was sent back to the High Court for retrial, the 1998 Act would apply and a report referred to in that Act would be available to the judge in arriving at a figure - "if any" - which the judge could be reasonably confident was fair, just and reasonable.
He added: "I have said `if any' because I want to emphasise that just because a person has been in the Army and exposed to gunfire noise without adequate ear protection does not mean that a person is automatically entitled to damages. "The onus is on such a person to establish any hearing loss (assuming that there is such) was caused by such exposure to gunfire noise and not by other causes such as the normal ageing process or trauma or excessive noise extraneous to his Army service."
The court adjourned the question of costs to the judge who presides over the retrial in the High Court.
Mr Smith, a father of three, served in the Army from 1958 to 1961. He rejoined in 1971 and attained the rank of sergeant but had to retire in 1992 with severe diabetes unrelated to the court action.
In his High Court evidence, Mr Smith said he was suffering from hearing difficulties which made it inconvenient for him to mix socially with numbers of people. It also meant he was turning up the TV, unable to speak to his wife and unable to answer the phone.
In the High Court, Mr Justice Johnson said that at one level Mr Smith had impressed him because he seemed an honest man. The judge accepted Mr Smith may have some difficulties. However, the judge held that Mr Smith was exaggerating dramatically, particularly in relation to his statement about the phone.
However, Mr Justice Johnson accepted Mr Smith had suffered a regression in his hearing.