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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McAloon v HM Advocate [1999] ScotCS 186 (4 August 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/186.html Cite as: [1999] ScotCS 186

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In this preliminary proof the pursuer sues the defender as representing the Secretary of State for Defence. The pursuer served in the Army from 1986 until he was Court Martialled and discharged in March 1990 following upon a sentence of one year's imprisonment for wounding. He claims that during the course of his Army service he was exposed to noise which occasioned him a significant loss of hearing. This loss was said by Mrs L D Cooke, a consultant otolaryngologist, to be of the order of 170dB in his left ear and 210dB in his right ear. The present action passed the signet on 24 June 1997 over seven years after any act, neglect and default which could be attributed to the defenders ceased.

The pursuer stated that in the course of his Army service he was exposed to gunfire and, in particular, mortar fire, at least until January 1989, when he suffered a road traffic accident while on active service. He first began to complain about a problem with his hearing in 1989 and in his evidence said that by 1990 he thought that his hearing loss was due to his Army service. When asked in cross-examination why in those circumstances he did nothing about it, he said this was due to ignorance about what to do. While in the Army he had complained to his medical officer and been referred for an audiogram. That took place on 12/12/89 and disclosed, according to the Army classification, a result which indicated a fairly severe hearing loss in the left ear. The audiogram (19/40), records an unusual pattern of alleged deafness and is annotated "can hear normally, refer ENT for second opinion, ? hysterical".

The pursuer was exposed to no other source of potentially injurious noise than that experienced during his Army service.

Although the pursuer's evidence on the matter was unclear as to dates, he did consult his general practitioner. A note in the general practitioner's records bears to record a complaint about hearing upset on 3 March 1993, but the practitioner was not sufficiently concerned to seek an audiogram at that stage, because the impression he gave, face to face, was that he could hear normally..

The principal witness for the pursuer was Mrs Cooke. The pursuer was referred to her in late 1994, and she examined him on 30 December 1994. He complained to her about a hearing loss in both ears, worse on the right, with right side tinnitus present for the previous five years. She then noted that his audiogram showed an asymmetric sensorineural hearing loss, mild in the left ear, but on the right ranging from moderate to severe. She also notes (17/15) "although he dates his hearing problems and tinnitus to the noise exposure in the Army this may be a red herring, and I think it is important to exclude other causes". She made arrangements for an MRI scan of the brain and also the provision of a hearing aid for the right ear. By 20 February 1995 she reported to Dr Watkins that she had found no serious neurological cause for the hearing loss and "that this did raise the possibility in a 25 year old man that the noise exposure he suffered during his Army service may be responsible for part or all of his hearing impairment." In March 1995 the pursuer consulted solicitors.

In her evidence and from her report 17/2 of process, dated 13 May 1996 Mrs Cooke reported hearing loss of 170dB in the left and 210dB in the right ear, a substantial deficit. She said that the onset of the hearing loss coincided with exposure to mortar fire and noted that it was worse in the right ear which was closest to the barrel of the mortar gun. In her evidence she expanded somewhat on her reports. The effect of her evidence was that the pursuer's only relevant exposure to excessive noise was while in the Army; that the damage occasioned would not get worse after he left the Army and that accordingly the pursuer must have suffered the extent of the hearing loss she found (there being minimal exacerbation due to ageing) by the time he left the noisy situation in the Army in 1990. It followed according to that evidence that any suggestion that his hearing was not significantly impaired by 1990 was erroneous and that the damage was real not hysterical. The pursuer did not recall any further test after his conviction despite one being recorded in 19/35 of process, and accordingly that test played no part in his thinking; nor could he recall anything that had been said to him by Lieutenant Colonel Chowdhury, the consultant ENT surgeon attached to the Army, so that also played no part in his considerations.

I approach the matter on the basis that the evidence given by Mrs Cooke is correct and acceptable for present purposes.

The pursuer relied upon section 17(2) which failing section 19A of the Prescription and Limitation (Scotland) Act 1973 as amended. Those sections provide:

His counsel referred me to Blake v Lothian Health Board 1993 S.L.T. 1248; Lowe v Grampian Health Board 1998 S.L.T. 731 and Carnegie v The Lord Advocate 1998 S.L.T 872. He said that he had two points to make, firstly that the pursuer did discuss raising an action but curiously in 1997 he wrote to the Army for help in the form of work rather than with a view to raising an action and secondly, that he would be unaware that the damage was due in whole or part to an act or omission. He had first consulted solicitors in March 1995.

In response, defender's counsel indicated that on the evidence by May 1990 the pursuer knew that his hearing had been affected. He thought that it was so affected while still in the Army and he did not suggest that there was any reason why it was not reasonably practicable for him to have ascertained the position about a potential claim. The only matter put before the court was his professed ignorance.

In relation to section 17 I have no difficulty in holding that it was reasonably practicable for the pursuer to have become aware of all the facts therein specified. On Mrs Cooke's evidence the injuries in question were sufficiently serious to bring an action and were in his own belief attributable to his Army service and must have been the result of inadequate ear protection. He did not convince me of any matter which made it not reasonably practicable for him to have ascertained all these other matters on the footing that he was aware that his hearing had been affected and that he was aware that it had been affected as a result of his Army service.

The pursuer's position under section 19A was that he would suffer prejudice and the defender would not if the case were to be dismissed at this stage. His ignorance meant that he did not consult solicitors until March 1995. The defender's counsel pointed out that even after March 1995 it took over two years to get the actions raised and that the only fact prayed in aid by the pursuer was his own ignorance. That was the result of his failure to take the reasonably practicable steps incumbent upon him under section 17. I found this matter of some difficulty. It is never correct to say that a defender against whom a claim has been extinguished by limitation would not suffer prejudice. A pursuer might be prejudiced if the expiry of the time limit was occasioned by the actings of others. As a witness the pursuer was vague. His Army records indicate personality difficulties. His civil medical records disclose that he suffered other misfortunes, including between 1992 and 1993, the effects of drug abuse. In addition the facts of the case did not appear so far as explained before me on the merits, to be particularly difficult, although the events complained of are now over ten years old. There is a complexity however that noise exposure before 15 May 1987 is averred not to be actionable. That would include all the pursuer's training and some at least of his exposure to mines. Mrs Cooke has not considered that matter and the evidence may be affected by the passage of time. On the other hand in contrast with the situation in Elliot v J & C Finney 1989 S.L.T. 208 to which I was referred where the action was raised six days outwith the triennium, the present action, which I have found to be time barred in March 1993, was not raised until four years thereafter and, furthermore, was raised over two years after both the date on which Mrs Cooke gave her opinion and the pursuer had consulted solicitors. I was not satisfied that the pursuer was ever misled into letting time go by, given his evidence above noted.

There was no evidence before me about whether or not the pursuer had sought a disability pension from the Army as a result of his noise exposure. The level of disability spoken to by Mrs Cooke would have entitled him to an industrial injury pension had his hearing loss been sustained while in civilian employment. On the whole matter I conclude that the pursuer has failed to establish that his action is not time barred and has failed to persuade me that I should exercise my discretion to allow the action to proceed despite it being time barred. I sustain the defender's first and second pleas-in-law, repel the pursuer's first and second pleas-in-law and dismiss the action.