Clarke v Min for Defence & AG
| Jurisdiction | Ireland |
| Judge | Ms. Justice Irvine |
| Judgment Date | 18 April 2008 |
| Neutral Citation | [2008] IEHC 105 |
| Docket Number | [No.4834 P/2002] |
| Court | High Court |
| Date | 18 April 2008 |
[2008] IEHC 105
THE HIGH COURT
BETWEEN
AND
CHARTER OF THE UNITED NATIONS CHAP VI
CHARTER OF THE UNITED NATIONS CHAP VII
RYAN v IRELAND 1989 IR 177
WALSH v SECURICOR (IRL) LTD 1993 2 IR 507 1993/5/1483
SALMOND & HEUSTON ON THE LAW OF TORTS 21ED 1996 230
Defence forces - Personal injuries - Post traumatic stress disorder - Whether defendants negligent - Duty of care - Duty owed by State to soldiers - Foreseeability of unannounced attack - Treatment in aftermath of events
Facts: The plaintiff was a member of the permanent defence forces. Whilst on a tour of duty in the Lebanon, mortars landed outside the camp. The plaintiff brought a claim seeking damages for the physical injuries he sustained and also in respect of post traumatic stress disorder.
Held by Irvine J. in dismissing the claim that the injuries sustained by the plaintiff did not arise by reason of any negligence on the part of the defendants whose care and attention of the safety of their troops was, on the evidence, beyond reproach. The plaintiff’s claim in relation to the alleged failure to identify and treat post traumatic stress disorder in the aftermath of the events had not been made out.
Reporter: R.W.
The plaintiff in this action is Darren Clarke who was born on the 1st July, 1979, and is a member of the Permanent Defence Forces.
The events, the subject matter of this claim, occurred on the 31st May, 1999, whilst the plaintiff was on his second tour of duty with the Irish Defence Forces in the Lebanon as part of the 85th Battalion which was stationed at post 6-42.
The plaintiff's tour of duty commenced in early May, 1999 and a diagram showing the layout of post 6-42, where he was stationed, is to be found at page 130 of the defendant's discovery. This plan shows the perimeter of compound 6-42 and also the living accommodation available to members of the Defence Forces. Of significance to this action are the billets, the bunker and the perimeter.
Of further relevance to the historical background to these proceedings is a map which, the parties agreed, showed the relevant UNIFIL boundaries, observation posts, checkpoints and compounds. This map accurately depicts the location of post 6-42 relative to other compounds, villages and landmarks.
It is common case that the plaintiff was billeted with a colleague, Private Rushe, in billet number 6 at post 6-42. Unfortunately, in the early hours of the morning on the 31st May, 1999, an Israeli 81mm mortar landed directly outside the perimeter of camp 6-42. Almost immediately thereafter, a further similar mortar landed within the compound. The location where both mortars landed is marked on the diagram at p.130 of the defendant's discovery.
The uncontested evidence was that as soon as the first mortar fell outside the perimeter wall that "Groundhog", a signal to all troops to take shelter in the bunker on the compound as a matter of urgency, was called by those who had been on guard room duty. Because it was the middle of the night, the plaintiff and Private Rushe were in their beds at the time when the first mortar landed. They gathered their flak jackets in response to the call of Groundhog from their colleague Private Kedian and were just about to leave their billet when the second mortar landed outside this billet. Tragically, as a result of this impact, Private Kedian was killed and Private Rushe sustained very serious bodily injuries. The plaintiff received significant shrapnel wounds to his legs and there is no dispute that the shrapnel which became embedded in the plaintiff's legs and abdomen had penetrated the walls of the billet.
The plaintiff brings this claim seeking damages for the physical injuries he sustained prior to leaving his billet and gaining shelter in the bunker on 31st May, 1999. He also claims damages in respect of post traumatic stress disorder ("PTSD") as a result of his exposure to the events of the 31st May, 1999.
The plaintiff's claim is that the defendants were negligent in respect of his care in:-
(I) Delaying or failing to comply with Special Observation Regulation 3(11) which provided that in the event of an attack on Whiskey 144 (a compound under the control of forces supported by the Israeli Government) or firing from Whiskey 144 that the Groundhog alarm would be sounded.
(II) Failing to adequately assess on an ongoing basis, the risk to its troops whilst on UNIFIL duties in Lebanon.
(III) Providing billets which were not reinforced to better withstand the impact of mortars or shells. It was alleged that sand bags, rubber curtaining, the positioning of T-walls or the building of concrete billets would have reduced the risk of shrapnel injury to those in the billets and were thereby mandated.
(IV) Failing to have a system to monitor the effects of this type of incident upon its troops and in particular in failing to identify the plaintiff as being at an increased risk of developing P.T.S.D.
(V) Failing to provide adequate debriefing or subsequent follow-up psychological care for the plaintiff post the events in question either in Lebanon or in Ireland.
Since 1979, the Irish Defence Forces have participated in peacekeeping missions in Lebanon as part of the UNIFIL operation authorised under Chapter 6 of the UN Charter. The overall mandate of the UN force at the relevant time was to oversee the withdrawal of Israeli forces from Lebanon.
Brigadier General Moore advised the Court that peacekeeping activities conducted under Chapter 6 of the UN Charter were characterised by the high visibility of such operations. Those operations were carried out by UNIFIL with the consent of the parties involved in the conflict, namely the Governments of Lebanon and Israel. The mandate of the troops engaged in operations under Chapter 6 limited them to act only in self defence and thus they were only lightly armed. The principal role of the troops engaged on such a mission was to monitor the areas where hostilities were taking place, to report on such activities and to protect the local population.
Military Operations under Chapter 6 of the UN Charter were, according to the evidence, to be distinguished from operations authorised under Chapter 7 where troops become involved in peace enforcement for the purposes of seeking to resolve aggression between opposing factions. In Chapter 7 operations, the risk to troops is much greater than those posed to them on a Chapter 6 mission.
In relation to this Chapter 6 operation, the Court was advised that agreements were in place between the UN and the Governments of Israel and Lebanon that the warring factions would not target UNIFIL posts and neither would they fire close to UN positions. Any breach by either party of such agreement led to the notification of such breach to the relevant Government. The continued involvement of UNIFIL as peacekeepers in Lebanon was dependant on these agreements being substantially complied with although the evidence was that they were regularly broken by the relevant fighting factions.
The area occupied by the Irish troops provided a buffer zone between the warring parties and the legitimacy of their deployment was accepted by both Governments. The presence of UNIFIL troops provided some degree of normality for those living in what was a war zone. Sometimes, however, the warring factions ignored the terms of the agreements upon which UNIFIL troops were deployed and the military operations carried out by them resulted in the death of troops. The defendants urged the Court that all such deaths occurred as a result of the deliberate targeting of those concerned and did not result from a failure on the part of the defendants to formulate and implement policies to try to ensure the safety of troops on a daily basis.
At the time relevant to these proceedings, three companies of Irish Defence Forces were involved in UNIFIL peacekeeping operations in Lebanon. Each company comprised approximately 130 soldiers and had its own Commander. Further, each company had a number of platoons with each having its own Commander. In the present case, the Court is concerned with the activities of C. Company. Commandant Ian Hanna was the Commander of C Company and the platoon of which the plaintiff was a member was under the command of Captain Morgan.
In the context of the present proceedings, it is helpful to refer to the map which has been agreed between the parties to establish the whereabouts of the Irish posts in Lebanon and also the areas occupied by the warring factions.
The area of operation for the Irish troops was known as "IRISHBATT" and covered an area of approximately 10 kilometres by 12 kilometres. A broken black line is shown on this map running across its southern and eastern side. The forces supported by the Israeli Government, principally thede facto forces ("DFF"), occupied the area to the south and east of the broken black line which starts on the southwest side of the map with a compound designated as Whiskey 128 (W128) and ends near Echo 210 (E210) on the north-eastern side of the map. All of the compounds with a W or A prefix were under the control of the DFF or other groups backed by the Israeli Government. North of the broken black line were the Islamic resistance groups or armed elements ("AE"), operating with the backing of the Lebanese Government.
The evidence of Brigadier General Moore was that Irish troops positioned in posts along or near the broken black line were most at risk as it was there that hostilities were most...
To continue reading
Request your trial