A High Court judge has said it is up to the Oireachtas to legislate for specific standards for hearing ability or disability if it wished the courts to accept such standards. Mr Justice Johnson, who has dealt with a number of Army deafness cases, said it was not for the courts to make the law.
"It is for the courts to interpret law and in the meantime to try cases on the evidence which is presented, and that includes the plaintiff's evidence, and to assess as best they can that evidence and come to a verdict."
He was giving judgment in an action taken by a former Army mortar specialist, Mr Matthew Gardiner (54), O'Malley Park, Limerick, against the Minister for Defence. Mr Gardiner, who served 16 years in the Army, was awarded £20,000 and costs.
Mr Gardiner had worked in many occupations but was exposed to excessive noise only in the Army. He was exposed to noise of many weapons but in particular to the mortar. He was a mortar sergeant when he left the Army.
He gave uncontradicted evidence that at no time was he provided with any ear protection du ring his service, nor was it recommended to him he should use ear protection. He was not deaf but had a hearing difficulty relating to conversations with people when more than a one-to-one situation was involved.
Mr Justice Johnson found Mr Gardiner a very impressive witness who did not over-emphasise his hearing impairment or exaggerate his condition. There was no doubt that the defendants were negligent. There was a dispute between experts for both sides about whether the present hearing condition was noise-induced or involved a loss at all. The witness for the Minister was adamant that Mr Gardiner's present condition was within normal limits and the condition was due to age rather than noise to which he was exposed.
For Mr Gardiner's side, an expert was clear the condition was noise-induced and genuine.
Mr Justice Johnson said he had heard a great deal of evidence regarding various methods of measuring hearing loss and as to whether one should go above 3,000 hertz when measuring. There was no standard agreed by doctors in this country or, as far as he could make out, in any country.
Far from the American Medical Association standard being accepted everywhere, he was told it was accepted in only 27 US states while the others had different standards. In the UK, there were eight standards. In Ireland, while there was no agreed medical standard, the Army had introduced in October last a categorisation of hearing ability, which was in accordance with a European directive.
Despite all of the evidence relating to handicap, disability or otherwise, the court had to deal with the impairment or imperfection in hearing brought about by negligence of the defendants, if any, which affected the quality of life of the plaintiff. Each case must be tried individually and each plaintiff had to be individually assessed. This must be measured against the law as it stood.