Clarke -v- Minister for Defence & Ors, [2008] IEHC 105 (2008)

Docket Number:2002 4834 P
Party Name:Clarke, Minister for Defence & Ors
Judge:Irvine J.

THE HIGH COURT2002 No.4834 PBETWEENDARREN CLARKEPLAINTIFFANDTHE MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERALDEFENDANTSJUDGMENT delivered by Ms. Justice Irvine on the 18th day of April 2008The 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.HistorySince 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.The Irish Defence ForcesAt 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 the de 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 prevalent. As an example, he referred to post 6-28 Alpha which is on the north east side of the map which post was within some 60m of a DFF compound. Post 6-42, where the plaintiff was billeted, was not, on the evidence, considered to be one such post.The Irish posts were located throughout all of the IRISHBATT area and as can be seen from the map some of these were actually located in villages. These posts provided significant benefit to local communities due to the agreement between the Governments and the UN that such posts would not be targeted. One such village was that of Brashit where the Irish post 6-16 was located.The post where the incident, the subject matter of this claim, took place was at post 6-42. This post was approximately 800m north of the DFF/Israeli Defence Force compound described as Whiskey 144. Post 6-42 was also approximately 800m south east of Brashit village. Post 6-42 was positioned between Whiskey 144 and where the AE centred a significant amount of their activities at Brashit village and its environs.Duty of Care: foreseeability of an unannounced mortar attack on post 6-42The duty of care owed by the defendants to the plaintiff in this case must be viewed against the backdrop of the evidence adduced by the parties as to the risks faced by Irish troops whilst participating in peacekeeping duties under Chapter 6 in Lebanon and the foreseeability of injury to troops in their billets from an unannounced mortar attack on post...

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