A high Court judge has drawn attention to the difficulties the courts experience in regard to Army deafness cases because of the "eccentricities" in the application of the Green Book formula for the assessment of hearing loss.
Mr Justice Johnson made the remark yesterday when awarding damages of £42,826 to a former soldier, Mr Ernest Magee (53), of Bishops land, Kildare, Co Kildare, who had sought damages for hearing loss and tinnitus due to exposure to gunfire.
The award is based on the judge's finding that Mr Ma gee has a current hearing disability, including tinnitus, of 8.5 per cent. The award also includes damages for a future hearing disability of 6 per cent at age 62.
The formula for assessing hearing loss set out in the Green Book, a report drafted by an expert committee set up by the State, is used by the courts as a guide for assessment of hearing loss.
Mr Justice Johnson said there was no dispute that Mr Magee had been exposed to gunfire, but there was a major dispute as to how bad his present condition was.
There were four separate audio grams in the case, and while there was little dispute between these in relation to high-frequency hearing loss, there was a dispute regarding low-frequency hearing loss.
To demonstrate the difficulties the courts had in applying the Green Book formula, the judge said that in this case, even where three audiograms had just minor variations in their findings, which were totally acceptable in the world of audiometry, the same three audiograms, in accordance with the Green Book formula, produced variations of between 5.5 per cent and 11.8 per cent in relation to averages of hearing disability.
The concept that those three audiograms should produce, under the Green Book formula, a difference of 6 per cent disability, appeared to be worthy of inquiry and investigation, the judge said.
It seemed "strange and unsatisfactory" that three such similar audiograms could have such a disparity when the Green Book formula was applied. The fourth audiogram found no percentage of disability, he added.
He had heard evidence doubting Mr Magee's capacity to drive a taxi or bus because of his hearing disability. Other experts had testified that he needed one, and even two, hearing aids.
Mr Justice Johnson said he had also had the opportunity of seeing Mr Magee in the witness box and it was clear the man had difficulty in knowing that he was being spoken to unless he was directly facing the speaker. He was satisfied Mr Magee has a hearing disability.
