Mr Fennell accepted that the protocol among ear, nose and throat surgeons concerning audiograms which demonstrate different results is that the one showing the best reading is the one that ought to be relied on. As the Beaumont testing gave the best results insofar as the plaintiff was concerned, it was the one that ought to be accepted. On this result he took the view that the plaintiff's left ear was normal but that this was not so in the right ear where a very slight loss was recorded. Insofar as the plaintiff's tinnitus was concerned, he said that the plaintiff told him that he suffered from a rushing noise most of the time, which was fairly constant. He accepted that tinnitus is a subjective condition and he took his patient's word for it. He said that it was a common condition in the case of noise exposure. The plaintiff never told him of a ringing or buzzing sound preventing him from sleeping. Insofar as tinnitus is concerned, he was of the view that one must accept what the plaintiff tells his doctor. Mr Vivian Kelly gave evidence on behalf of the defence. He also is an ear, nose and throat surgeon with many years experience. He examined the plaintiff on 9 July 1997 and carried out an audiogram. He was not satisfied with the results which it demonstrated. The result of this audiogram was put in evidence. It was substantially different from any of the other audiograms which were carried out on the plaintiff.
He was not satisfied with the results shown on the audiogram for three reasons. Firstly, one rarely obtained a loss of the type demonstrated in it from noise. Secondly, the result in respect of low tone loss he took to suggest malingering on the part of the plaintiff. Thirdly, the audiogram he described as flat and such a result is typical of malingering. In fairness to the plaintiff it must be said that counsel for the defendant expressly disavowed any allegation of malingering against the plaintiff. However, Mr. Kelly being dissatisfied with the audiogram result which he obtained, referred the plaintiff for the test in Beaumont Hospital. He described the cortical ERA test as being the "gold standard" of tests. He agreed with Mr Fennell that this test demonstrated that the plaintiff's left ear had normal hearing. The slight loss shown in the right ear was, in Mr Kelly's view, not noise-induced.
He then carried out the following exercise. He took the Beaumont test results and superimposed upon a diagrammatic representation of the hearing situation of a typical population derived from ISO 1999 calculations. The population from which this statistical information was drawn was a population not subjected to excessive noise. The diagram demonstrating this exercise was put in evidence. The effect of it was to show that the plaintiff did not depart from the material derived from the ISO standard. In other words, the plaintiff's hearing was within the norm of the population of his age who had not been subjected to excessive noise. He expressed the view that the plaintiff had no more difficulty in hearing than anyone else of his age. Everyone's hearing diminishes as they get older. Insofar as tinnitus was concerned, Mr Kelly gave evidence that the plaintiff complained of this occurring twice per month for 15 minutes or so. In cross-examination he was firmly of the view that the plaintiff did not demonstrate any noise-induced hearing loss. He took the view that the plaintiff should not have any difficulty in hearing speech in a background of noise. Noise-induced hearing loss and age-related loss are often not distinguishable. They are when a person is young but not at the age of 51. He took the view that the Beaumont test demonstrated a typical audiogram for a 51-yearold man. He was firmly of the view that the cortical ERA test for the right ear did not demonstrate typical noise-induced loss of hearing. He did not accept that it showed a noise induced pattern. Finally, insofar as tinnitus was concerned, he said that this occurs in 35 per cent of the population who have been subjected to noise. Mr Justice Kelly also had evidence from Mr Norman who is an audiological scientist who carried out the test in Beaumont Hospital. He explained the methodology involved and Mr Justice Kelly was satisfied that he was both competent and experienced in the carrying out of these tests. No criticism could be made of the Beaumont test and it was accurate. On being recalled, Mr Fennell reiterated the views already expressed by him concerning the plaintiff. However, in the course of cross-examination he indicated that he was not really familiar with the details of the cortical ERA test and in his view an audiogram was a perfect test.
Mr Justice Kelly made the following findings arising from the expert testimony.
(1) A number of audiograms were carried out on the plaintiff on different occasions.
(2) In view of the uncertainty and confusion concerning the Midland Health Board audiogram, he discounted it from an evidential point of view.
(3) A single cortical ERA test was carried out at Beaumont Hospital.
(4) There was no disagreement between the experts that 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.
(5) The best result is demonstrated by the Beaumont test. Furthermore, the ordinary audiogram carried out there was supported by the cortical ERA results carried out at that hospital.
(6) Accordingly, he preferred the results obtained at Beaumont Hospital. In so doing he was accepting the undisputed evidence of the experts that the best audiogram result was the one which should be used. But he also preferred it because the Beaumont test involved the cortical ERA test. That did not involve any subjective reaction from the plaintiff and he accepted Mr Kelly's evidence that it is regarded as the gold standard in hearing tests.
(7) He accepted the undisputed evidence that the Beaumont test demonstrated that the plaintiff's hearing in his left ear was normal.
(8) Both doctors agreed that there was a deficiency in the right ear. He preferred the evidence of Mr Kelly to Mr Fennell concerning this loss in the right ear. In his opinion, the deficiency demonstrated in the right ear was not a noise-induced one.
(9) He accepted Mr Kelly's evidence that the audiogram was typical for a 51-year-old man and that what was demonstrated was age-related deafness rather than noise-induced deafness. In this regard he derived considerable assistance from the exercise carried out by Mr Kelly whereby he superimposed the Beaumont results on the ISO statistical information. This manifestly demonstrated that the plaintiff's level of hearing fell within the level to be expected from a sample population of 51year-olds who had never been subjected to excessive noise.
Mr Justice Kelly said that in these circumstances he was, therefore, of the opinion that, insofar as the plaintiff did not suffer any hearing impairment, he was no different to other persons of his age who had not been subjected to unusual noise. On the question of tinnitus, the plaintiff had given different descriptions of this on different occasions. Mr Justice Kelly preferred the evidence of Mr Kelly to Mr Fennell in this regard also. In his view, the plaintiff had not made out a case that such tinnitus as he suffered from could be attributed to the noise to which he was subjected while in the FCA. Mr Justice Kelly said that the findings which he had made were, in his view, in full accord with the plaintiff's own behaviour and with common sense. It was now 29 years since he had left the FCA Notwithstanding the length of time that he says he had been complaining of hearing impairment and tinnitus, he never once consulted a doctor in respect of it. Mr Justice Kelly found it difficult to believe that if his position as was alleged, at no stage during those many years did he ever seek the advice of a doctor concerning his condition. He thought the plaintiff regarded his hearing condition as being simply part and parcel of his normal life and one of the disadvantages of growing older.
Mr Justice Kelly was quite satisfied that the 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 had ultimately resulted in him being in court in this rather opportunistic action. While Mr Justice Kelly had some sympathy for him in the position in which he now found himself, he was satisfied that the plaintiff's case was not made out and therefore it must be dismissed.
Mr Justice Kelly concluded by saying that even if he had found in favour of the plaintiff, it was right that he should say that any award of damages which he would have obtained would have fallen well within the jurisdiction of a court lower than this one. However, the plaintiff chose to bring his proceedings in this court and therefore must suffer the consequences. The claim was dismissed.
Solicitors: Patrick Boland & Son (Newbridge) for the plaintiff; Chief State Solicitor for the defendants.
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