A new formula for assessing damages in Army deafness cases emerged yesterday in a High Court decision on a "test case" brought against the Minister for Defence and the State. The formula outlined by Mr Justice Johnson takes account of the effect of ageing on hearing loss.
Lawyers acting for some soldiers taking claims for noise-induced deafness regarded yesterday's judgment as significant. It was suggested it could mean higher awards for younger claimants and reduced sums for older people.
Claimants' lawyers have been complaining that the "Green Book" - the report of a State-established expert group setting standards for assessing hearing loss - does not allow for the ageing process when measuring damages.
In his judgment in the case of Pte Kevin Hanley, Mr Justice Johnson set out guidelines based on an international standard for
calculating the probable advance of noise-induced and age-related hearing loss. He awarded £50,575 to Pte Hanley (35), of Old Cork Road, Limerick, who has been in the Army for 18 years. He was exposed to gunfire, including a period when he acted as a mortarman, without any ear protection until the end of the 1980s, when he was given a plastic ear-plug.
The judge said the Green Book appeared to be a fair and reasonable means of calculating disability. It was not complete, however, and there were "some very serious gaps" in it.
No provision was made for future deterioration caused by a combination of noise-induced hearing loss and age-related hearing loss.
Mr Justice Johnson said if one had a formula worked out scientifically that would give a reasonably accurate prognosis as to what the condition of the plaintiff would be in the future, that formula should be taken.
Pte Hanley had suffered a 7 per cent disability, plus 2 per cent for tinnitus. In addition, added the judge, when he reached 60 he would suffer from a further 12 per cent disability, making 22 per cent in all. Mr Justice Johnson said he agreed with Mr Justice Lavan in the Green case, heard some weeks ago, who had indicated that £1,500 was an appropriate figure for one degree of disability at the age of 60. However, it was then necessary to see what damages should be paid per degree of disability at 30. For that, he would allow £3,000.
He had then allowed £2,750 per degree of disability to the plaintiff because he was 35. If he were 40, he would have allowed £2,500; 45 (£2,250); 50 (£2,000); 55 (£1,750); and 60 (£1,500).
The judge said he believed this was the appropriate scale for disability ranging from 1 per cent to 10 per cent.
For disability levels ranging from 10 per cent to 25 per cent it was proper that the rate per degree of disability should increase.
He had considered that an appropriate level at 60, for a disability of between 10 and 25 per cent, should be £3,000. At 30 it should be £6,000 for the same disability. For completeness' sake, he would then say that the figure for disability between 10 and 25 per cent should be £5,500 at 35; £5,000 at 40; £4,500 at 45; £4,000 at 50; £3,500 at 55; and £3,000 at 60.
He assessed Pte Hanley's 9 per cent disability at £2,750 per degree, making a total of £24,750. The soldier was also awarded £10,000 because his opportunities for serving in the Lebanon have been reduced. Evidence indicated that at 60 Pte Hanley would have a further 12 per cent disability, for which £15,825 was awarded. That made a total of £50,575.