The Green Book formula for assessing hearing disability in "Army deafness" cases was departed from by a High Court judge yesterday when awarding almost £15,000 damages to a former soldier.
The Green Book formula was developed by an expert committee established by the State and has been largely followed by judges in the Army cases.
However, yesterday Mr Justice O'Donovan said he thought the circumstances of the case of Mr Patrick Kerwick (43), Carrigeen, Clonmel, Co Tipperary, were such that an exception should be made to the general principle previously stated by himself and other judges in claims for hearing loss.
That principle stipulated that the formula in the Green Book was a fair and adequate means of measuring disability for hearing loss and should be followed by the courts.
But if he were to follow the formula in this case, the level of damages would be considerably less than the sum appropriate for the true extent of Mr Kerwick's hearing disability.
"This is a case in which there are good reasons for departing from the formula in the Green Book," the judge said.
In any event, Mr Kerwick had satisfied him that his hearing loss had inhibited his quality of life and in light of the views expressed by Mr Justice Barron in another case in 1995 that was something he was entitled to take into account when assessing his damages.
Mr Justice O'Donovan awarded £14,984 to Mr Kerwick, who served as a private in the Army for nine years until 1981. For three years after leaving the Army, he worked as a security officer. He now operates a taxi.
The judge said he was satisfied that, with the exception of the period when he was a serving soldier, Mr Kerwick did not engage in any activity which involved his exposure to excessive noise. Neither had he suffered any disease or illness which might have had a detrimental effect on his hearing.
It was common case that while in the Army he was exposed to noise of gunfire from a variety of weaponry, particularly mortar fire, but was never provided with ear protection.
Mr Justice O'Donovan said he subscribed to the view expressed by other judges that the Green Book formula for assessing hearing loss was a fair and adequate means of measuring disability and should be followed by the courts, unless there were good reasons for not doing so.
In the present case, Mr Kerwick had stated he was not aware he had any problem with his hearing until eight or 10 years ago when he noticed his family were complaining there was something wrong with it. In particular, they complained he played the TV too loud. He himself noticed that when in a crowded environment he found it difficult to understand what people were saying to him.
The judge said an audiologist, Mr Dermot Dougan, had referred to the results of three audiogram tests.
He was persuaded by Mr Dougan's evidence that, in this case, the "low fence" threshold for hearing disability provided for in the Green Book distorted the extent of Mr Kerwick's high tone hearing loss to an unacceptable degree. The end result suggested the disability was significantly less than what it actually was.
Accordingly, he thought it would be manifestly unjust to Mr Kerwick to determine the extent of his hearing disability on the basis of the "low fence" threshold in the Green Book.