Subjective test applied to whether plaintiff knew injury was significant

Edward Whitely (plaintiff) v The Minister for Defence, Ireland and the Attorney General (defendants).

Limitation of Actions - Negligence - Plaintiff former member of Army - Exposure to noise of gunfire - Defendants admitted failure to provide protection against hearing impairment - Defendants denied that plaintiff had suffered injury as a result of such failure - Plaintiff discharged from Army in 1978 - Plaintiff visited doctor about hearing in September 1993 - Plaintiff said that he was unaware that injury was significant until 1993 - Plaintiff claimed his date of knowledge was September 1993 - Whether plaintiff ought to have been aware that his injury was significant - Whether test was subjective taking into account the particular plaintiff and his particular circumstances - Whether plaintiff knew or ought reasonably to have known from facts ascertainable by him alone that injury was significant - Statute of Limitations (Amendment) Act 1991 (No 18), sections 2 and 3.

The High Court (before Mr Justice Quirke); judgment delivered 10 June 1997.

Where a plaintiff claimed that he had suffered noise-induced hearing loss as a result of exposure to gunfire during his Army career, then the question arose as to when he became aware that his injury was significant. Section 2(1) of the Statute of Limitations (Amendment) Act 1991 provides that where a person relies on time running from his date of knowledge of the injury, this date of knowledge refers inter alia to the date on which he was aware that the injury was significant. In determining whether a plaintiff knew his injury was significant, then the test is subjective, in that the particular plaintiff with his particular circumstances must be considered. However, section 2(2) of the 1991 Act provides that a person's knowledge includes knowledge which he might reasonably have been expected to acquire from facts observable or ascertainable by him or from facts ascertainable by him with the help of medical or other expert advice which it was reasonable for him to seek. As there was no evidence of any circumstances between 1978 and 1993 that would have interfered with the plaintiff's capacity to understand the nature and extent of his injury, the plaintiff must have known during this period that his injury was significant from facts observable or ascertainable by him alone. Therefore, his date of knowledge was around 1979 or 1980.

Mr Justice Quirke, in the High Court so held in dismissing the plaintiff's claim as being statute-barred.

Alan Mahon SC and Vincent Foley BL for the plaintiff; Paul O'Higgins SC and Patricia Dillon BL for the defendants.

Mr Justice Quirke said that the plaintiff had enlisted in the Army in 1957 and served until 1978 by which time he was a quarter master sergeant. While in the Army he served in the First Armoured Squadron and in the Cavalry Corps and was required to participate in annual range practice and an annual activity known as Butt duty. During range practice, which lasted two or three days, the plaintiff was required to fire a machine gun which discharged 36 rounds per minute. He estimated that in each year he discharged in excess of 200 rounds of ammunition, whilst at the same time being exposed to the noise of other colleagues firing similar weapons in close proximity. Butt duty was an annual duty which lasted for three to four weeks and involved shooting targets. During such duty the plaintiff estimated that he was exposed to the noise of between 200 and 300 rounds of ammunition every day, discharged by Browning sub-machines guns and Malzun canon.

Mr Justice Quirke said that the plaintiff testified that throughout his 21 years in the Army he was never issued with hearing protection, ear plugs, ear muffs or safety equipment directed to protect him from exposure to excessive noise. He never received any instruction or training directed towards protecting him from the risk of damaged hearing posed by gunfire. Mr Justice Quirke said that the defendants indicated that it was not necessary for the plaintiff to prove either (a) that exposure to noise of the type the plaintiff had been exposed to during his career was capable of causing noise induced hearing impairment, or (b) that certain levels of hearing protection ought to have been, but were not, provided by the defendants. Further, at the end of the hearing it was expressly conceded by the defendants that throughout the 21 years that the plaintiff was a member of the Army, the defendants were negligent inter alia in failing to provide him with hearing protection and training to protect him from the risk of damage to his hearing.

Mr Justice Quirke said that the plaintiff claimed that by reason of the defendants' negligence he had sustained hearing loss and tinnitus. As there was no evidence to support the claim for pecuniary loss, Mr Justice Quirke said that his claim was confined to general damages arising out of his injury. The plaintiff claimed that since he did not sustain further exposure to excessive levels of noise after his discharge from the Army it was probable that his hearing impairment was caused by the exposure to noise during his Army career.

In support of his claim the plaintiff testified that while in the Army he noticed that he was encountering a problem with his hearing and ringing in his ears immediately after the range practice and Butt duty and these symptoms would continue for "a day or two". He said that after his voluntary discharge from the Army in 1978 he suffered from tinnitus and difficulty with speech discrimination and had to turn his television to a higher level than was comfortable for other members of his family. He said that he became particularly conscious of his disability in 1993 and in September 1995 he was prevailed upon by other members of his family to visit Dr O'Shea to have his hearing tested. Mr Justice Quirke said that Dr O'Shea's tests disclosed mild to moderate hearing loss together with tinnitus and the plaintiff was referred to an ear, nose and throat consultant surgeon who confirmed the earlier test relative to the nature and extent of the plaintiff's hearing impairment. Both doctors indicated in evidence that the plaintiff's hearing loss was in the high tone frequencies and both were of opinion that this hearing loss was noise-induced and that tinnitus was a condition frequently found in the presence of noise-induced hearing impairment. Referring to the pleadings, Mr Justice Quirke said that there had been no formal joinder of pleadings in relation to the issue raised in the defence relative to the Statute of Limatations 1957, as amended. No application was made to have that matter determined as a preliminary issue but the plaintiff relied on section 2 of the Statute of Limitations (Amendment) Act 1991 claiming that he brought his action within the period of three years from his "date of knowledge" within the meaning of that section. In particular, it was argued on behalf of the plaintiff that he first had knowledge that his injury was "significant" in 1993 and a plenary summons was issued on 15 September 1995. However, it was conceded by the plaintiff that he had knowledge of certain facts more than 15 years prior to the institution of proceedings, namely (1) that he had been injured; (2) that the injury was attributable to the defendants' negligence; (3) the identity of the defendants; and (4) that he was not alleging negligence on the part of any person other than the defendants.

Mr Justice Quirke said that it was conceded by the defendants that the unchallenged evidence of the plaintiff constituted proof of negligence in failing to provide him with adequate hearing protection and appropriate instruction. They contended that the plaintiff did not suffer any damage or loss as a result of their negligence and this view was supported by evidence of an audiogram that showed that the plaintiff's hearing fell within the normal range to be expected from a man in his mid-fifties. Alternatively, the defendants claimed that the plaintiff's claim was barred by section 3(1) of the Statute of Limitations (Amendment) Act 1991, which provides that an action claiming damages for negligence shall not be brought "after the expiration of three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured". The defendants argued that the evidence adduced at the trial disclosed that well before the appropriate three year period the plaintiff had knowledge of all of the facts which were relevant to the plaintiff's "date of knowledge" within the meaning of section 2 of the 1991 Act.

Mr Justice Quirke said that he had concluded that the issues to be determined were as follows.

(1) Were the defendants negligent in failing to provide adequate protection and instruction? Mr Justice Quirke said that he had no hesitation in resolving this issue in favour of the plaintiff.

(2) Did the plaintiff sustain personal injuries, loss or damage by reason of the defendants' admitted negligence? Having considered the evidence, Mr Justice Quirke resolved this issue in favour of the plaintiff on the balance of probabilities. (3) Was the plaintiff's case barred by section 3(1) of the Statute of Limitations (Amendment) Act 1991? Mr Justice Quirke said that the plaintiff claimed that he had commenced proceedings against the defendants within three years from his "date of knowledge". Section 2(1) of the 1991 Act provides that where the time limit within which an action may be brought depended on a person's date of knowledge, then references to that person's date of knowledge were references to the date on which he first had knowledge of the following facts: (a) that he had been injured, (b) that the injury was significant, (c) that the injury was attributable in whole or part to the act or omission alleged to constitute negligence, (d) the identity of the defendant and (e) if alleged that the negligence was of a person other than the defendant, the identity of that person.

Section 2(2) provides that a person's knowledge includes knowledge which he might reasonably have been expected to acquire from facts observable or ascertainable by him or from facts ascertainable by him with the help of medical or other expert advice which it was reasonable for him to seek. Mr Justice Quirke said that it was admitted by the plaintiff that he had knowledge of the following facts as early as 1979 or 1980, namely: that he had been injured; that the injury was attributable to the negligence of the defendants; the identity of the defendants; that the negligence was not that of any person other than the defendants. It was contended that he did not have knowledge that the injury was "significant" until some time between 1993 and 1995 and it was argued that his "date of knowledge" was, therefore, no earlier than 1993.

Mr Justice Quirke said that the "date of knowledge" for the purposes of the 1991 Act was virtually identical to that contemplated by section 14 of the English Limitation Act 1980. Section 14 (2) of that Act expressly defined an injury as significant if the person "would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment."

This definition was a re-enactment of an identical provision in the Limitation Act 1975 which was considered in McCafferty v Metropolitan Police Receiver [1977] 2 All ER 756. In that case it was held that the test was a partly subjective test, namely: would this plaintiff have considered the injury sufficiently serious; and partly objective, namely: would he have been reasonable if he did not regard it as sufficiently serious? However, Mr Justice Quirke noted that there appeared to be no judicial consideration of section 2(1)(b) of the 1991 Act in Ireland. Referring to the Law Reform Commission Report entitled "The Statute of Limitations: Claims in Respect of Latent Personal Injuries" (1987), Mr Justice Quirke said that the Commission expressed the view that the best approach would be for the legislation to require that, for time to begin to run, the plaintiff ought to have been aware that the injury was significant. Accordingly, given that section 2 of the 1991 Act did not attempt to define what was meant by a "significant injury", Mr Justice Quirke said that by excluding any definition the legislature intended to avoid confining the sense in which the word "significant" ought to be understood to the terms of the definition contained in section 14(2) of the English Act or to any particular terms. If this was correct, Mr Justice Quirke said that it would seem to follow that the test to be applied should be primarily subjective and that the court should take into account the state of mind of the particular plaintiff at the particular time having regard to his particular circumstances at the time.

Mr Justice Quirke said that the test was primarily subjective but it must be qualified to a certain extent by section 2(2) which introduced a degree of objectivity to the test. While the test in section 14(2) of the English Act was not appropriate for defining the word "significant" in section 2 of the 1991 Act, the English Act was a useful starting point in applying the broader test which was appropriate for the 1991 Act. In this regard, Mr Justice Quirke said that if the English statutory definition were applied to this plaintiff, he would undoubtedly fail that test. Having listened to the somewhat inconsistent testimony of the plaintiff and his wife, Mr Justice Quirke said that he formed the strong impression that as early as 1979 or 1980 the plaintiff would have considered his hearing loss and his tinnitus sufficiently serious to justify his instituting proceedings against "a defendant who did not dispute liability and was able to satisfy a judgment". Mr Justice Quirke said that he also formed the impression from the plaintiff's testimony and demeanour that his failure to institute proceedings did not result from any belief that his injury was not sufficiently serious to justify instituting proceedings for damages. However, Mr Justice Quirke said that the test appropriate to the English statutory definition of the word "significant" was not appropriate to the plaintiff and a broader and more subjective test had to be applied. In that regard counsel, for the plaintiff submitted that a number of matters should be taken into consideration. It was argued that the plaintiff's heart condition and by-pass surgery would have distracted his attention from the symptoms of hearing loss and tinnitus. Mr Justice Quirke said that the evidence disclosed that the plaintiff required the surgery in 1992, some 14 years after his discharge and there was no evidence that he suffered symptoms or required treatment during that 14year period. It was submitted that the medical testimony indicated that the plaintiff would have sustained age-related hearing loss throughout the entire of the 15 year period between 1978 and 1993 and this would have gradually increased the level of the plaintiff's deafness until he and members of his family became conscious of it in 1993. Rejecting this contention, Mr Justice Quirke said that this did not accord with the plaintiff's direct testimony at the trial of the action. When asked to describe his tinnitus between 1979/80 "until the early 90s" he answered "it was bad" and he confirmed that for 10 or 11 years his tinnitus was "constant". He also said that in the year or two following his discharge he could not very well hear the television. Mr Justice Quirke said that all the medical witnesses were in agreement that noise-induced hearing impairment and tinnitus do not worsen when exposure to noise ceases. Accordingly, the damage to the plaintiff's ears would not have been affected by anything other than age-related hearing throughout the 15 years between 1978 and 1993 and that would have been very gradual. Mr Justice Quirke rejected the contention that the combination of the plaintiff's noise induced-hearing loss and tinnitus together with his age-related impairment came to a head in 1993 but did not result in investigation by way of audiogram until September 1995 with the resulting institution of proceedings on the precise date when the results of the audiogram were published.

Mr Justice Quirke said that he had taken into account the fact that the plaintiff and his wife stated that his symptoms became worse in 1993. However, the medical testimony adduced was that he had sustained hearing impairment between 1957 and 1978 and the plaintiff gave evidence as to his symptoms in 1979, 1980 and 1981. Mr Justice Quirke said that he could not ignore this testimony in favour of the proposition that because he did not complain of his symptoms to his wife until 1993 that he should conclude that the injury did not become significant until 1993.

There was no evidence as to any particular circumstances between 1978 and 1993 that would have interfered with the plaintiff's capacity to understand the nature and extent of his injury. In applying the subjective test, Mr Justice Quirke said that the plaintiff must have known during that period that his injury was "significant".

In applying the more objective dimension of the test under section 2(2) of the 1991 Act, Mr Justice Quirke said that the plaintiff knew or ought reasonably to have known from facts ascertainable by him alone that he had sustained an injury which was significant. Mr Justice Quirke said that it followed from the foregoing conclusions that the plaintiff's "date of knowledge" within section 2(1) of the 1991 Act was substantially before 15 September 1992 and probably as early as 1979 or 1980. Accordingly, the plaintiff's claim was barred by section 3(1) of the 1991 Act. In the light of this finding it was not necessary to assess damages and the plaintiff's claim was dismissed.

Solicitors: Patrick V. Boland & Son (Newbridge) for the plaintiff; Chief State Solicitor for the defendants.