Holohan v Min for Defence
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kinlen |
| Judgment Date | 30 July 1998 |
| Neutral Citation | [1998] IEHC 126 |
| Court | High Court |
| Docket Number | Record No. 4960p/94 |
| Date | 30 July 1998 |
[1998] IEHC 126
THE HIGH COURT
BETWEEN
AND
Citations:
RYAN V IRELAND 1989 IR 177
AG V RYANS CAR HIRE LTD 1965 IR 642
DOWDALL V MIN FOR DEFENCE UNREP DENHAM 23.7.1992 1992/11/3466
ROHAN V MIN FOR FINANCE UNREP O'HANLON 19.6.1992 1992/12/4110
MOYNIHAN (AN INFANT) V MOYNIHAN 1975 IR 192
O'CONNOR V MIN FOR DEFENCE UNREP EX-TEMP JOHNSON 13.12.1994
JOHNSON V GRESHAM HOTEL CO LTD UNREP LYNCH 13.11.1986 1986/6/848
DALTON V FRENDO UNREP 1977/3/520A
MULCAHY V MINISTRY OF DEFENCE 1996 QB 732
DORSET YACHT CO LTD V HOME OFFICE 1970 AC 1004
MARC RICH & CO V BISHOP ROCK MARINE CO LTD 1996 1 AC 211
GROVES V COMMONWEALTH OF AUSTRALIA 1982 150 CLR 113
SHAW SAVILL & ALBION CO LTD V COMMONWEALTH 1940 66 CLR 344
Synopsis
Negligence
Personal Injuries; negligence; fracture to right hand; damages claimed in respect of personal injuries suffered during the course of army war-time training; whether defendants vicariously liable; whether there was negligence in the design or execution of the work; whether the principle of duty of care in tort applies to simulation war-time training; whether defendants exercised sufficient control over negligent soldier Held : Defendants vicariously liable (High Court : Kinlen J 30/07/1998)
Holohan v. The Minister for Defence
The control test is used to determine whether vicarious liability will be imposed on a defendant and it is difficult to imagine a more perfect example of a system of control than that which exists within the defence forces. In the present case there was negligence on the part of the plaintiff's colleague in using a pick while the plaintiff was in the trench with his back to him and the defendants' were vicariously liable for this negligence. While a duty of care was owed to the plaintiff in these simulated wartime conditions the Court accepted that in actual wartime public policy might require a determination that what would otherwise involve actionable negligence will not give rise to a cause of action. The High Court so held awarding the plaintiff £30,600.
Judgment of Mr. Justice Kinlen delivered the 30th day of July, 1998 .
The Plaintiff herein was born on the 5th March, 1950 and is now 48 years old. He joined the army on the 10th January, 1970.
On the 6th November, 1991 in the Glen of Imaal, the Plaintiff was engaged in exercises. A group of soldiers had been marched across the hills. When they reached the Glen they were assigned in groups to dig pits for mortars and also to dig a trench to contain, the ammunition. They were under pressure time-wise. The Plaintiff was working with a shovel on a trench which was off the main pit for the mortar gun. Unknown to him a Sergeant Barry was also in the trench working with a pick. The Plaintiff felt a blow from the pick which struck him on the right hand and he sustained a fracture to the base of the fifth metacarpal on the right hand. This was his only injury. The medical reports are agreed.
The case is pleaded in negligence. It was an accidental blow but it was negligent. The Plaintiff alleges that Sergeant Barry used the pick in a negligent manner and that that negligence made the Defendants vicariously liable.
He is a separated man with eight children. The injury resulted in some irregularity to his hand and there was fear of further surgery. However, this fear has now abated. He still however has a scar on his hand and has some irregularity of the fractured area. He continues in the army and his medical standing in the army has not been affected. He alleges that he is inhibited and has not the same degree of fitness. He cannot do press-ups and this constrains his promotional prospects. He was and is a corporal and is an instructor with a F.C.A. unit.
There were four mortar guns and therefore four crews in the Glen of Imaal and each crew was directed to dig pits. Captain Berney and Corporal Jackson were in charge. Everyone had to obey their orders. The Plaintiff was part of a crew consisting of Corporal Kidney, Sergeant Barry and Captain Doherty (who was a lieutenant at the time). His team had almost completed the pit when Captain Berney and Corporal Jackson came down and pointed out that they were behind time and that the work had to be done before darkness. Captain Berney and Corporal Jackson were unhappy with the progress made. Captain Berney informed them that lunch would be up to them shortly but if they were not finished they would not get any lunch. They were trying to get the pit finished, and the trench dug, which was off it. The Plaintiff was shovelling out the clay and all of a sudden he felt a bang on his wrist. Sergeant Barry came over to him and said "sorry". The Plaintiff had been digging with a shovel and the next thing he felt the bang and started screaming. Sergeant Barry was right behind him. He had a pick in his hand. He said it was "his fault". The equipment was provided by the army according to the Plaintiff but he was not given any instructions. Sergeant Barry called an ambulance. He was in extreme pain and was pumping blood. The bone felt like it was sticking out. A dressing was applied and he was put in the ambulance and taken to a room at the Glen of Imaal. He was left sitting there for about four hours. He was in such pain that he tried hitching to Naas Hospital. However, he was too weak and came back to the room. A landrover then took him to the Curragh Hospital and he informed them that he had been given nothing for the pain. He was then admitted to the hospital in Naas and stitches were inserted and he was x-rayed. He had a compound fracture and because of serious swelling they could not operate immediately. On the 15th November he was moved to the Meath Hospital. He has a farm of land and has been unable to manage the usual farmwork since. He has a young lad in to help him.
With regards the work being done, the sod had been taken off. The clay underneath was loose enough to shovel out. The trench was about two feet wide and about eight to ten feet long.
The course was for mortar instructors only and the Plaintiff admits it was to simulate a war situation. The course was for experienced men. The Plaintiff's Counsel concedes that they were not claiming that the Plaintiff had not sufficient digging or training or experience in this type of trench digging. Sergeant Barry then gave evidence. He did not take the threat that he would get no lunch very seriously. However, he was concerned that they were under great pressure. This was mainly due to the rapid approach of darkness. If night fell before the weapons were aligned, they would not be used. There was a very substantial amount of work to be done within one to one and a half hours. Sergeant Barry thought the stock of the pick had hit him rather than the spike. He had been picking in the two foot wide trench. He said that the accident occurred because the two were then in the small confines at the same time which was too rushed. Ideally, picks should not be used at the same time as shovels. The Plaintiff was in front of Sergeant Barry. He had his back to him and was coming towards him. There were a lot of gun orders being shouted and it was noisy.
Captain Berney was the officer in charge of the course. He made a strong impression on the Court. He was organising a tactical exercise to familiarise personnel with an actual operational situation. It was the essence of N.C.O. training. He would expect people doing the course to be able to lead and command troops in operational situations. The personnel were instructed on the dimensions for the pits and how to prepare the pit and trench. He was unaware of anybody ever doing this course without sufficient experience. They would have done a number of courses beforehand. There is always a risk in a job like this. It is the nature of the job. It is essential that there is an element of realism in this type of training, otherwise the course would be of no benefit. There has to be a sense of urgency involved.
The sods had been peeled back from the earth and surface to act as camouflage. Captain Berney wanted the guns in place by 5.00 p.m. and the trench where the men would be sleeping would be finished before dark. The course was for experienced students and the minimum rank was corporal. It was a two and a half month course in gun drill and command, mortar platoon and the use of weapons in all possible situations. This exercise was to bring everything to a head. They were to use all they had learned. They would each be commanders in their own way able to lead and control troops. They would be instructed on how to prepare a trench. They would have previous experience from earlier courses. Captain Berney said it was unfortunate that the Plaintiff was injured. He would allow a pickaxe and a shovel to be used at the same time especially in this situation in which this accident occurred. Mr. Peter Johnson, accident engineer, was called and said you should never have two in a trench while one was wielding a pickaxe. Captain Berney was then recalled and he admitted that the Plaintiff should keep out of the way of another man using a pickaxe.
On the foregoing facts the Court has to decide two basic points. Firstly, was there a failure of organisation; a failure in the system, a failure of organisation supervision regulation, a failure of the system itself? Secondly, was there negligence on the part of the fellow solider such that it imposes vicarious liability on the Defendants.
The following authorities were opened to the Court on behalf of the Plaintiff, namely, Michael Ryan -v- Ireland. The Attorney General and the Minister for Defence, [1989] I.R. 177, The Attorney General -v- Ryan's Care Hire Limited, [1965] I.R. 642, John Dowdall -v- The...
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Bridget Byrne v Ryan
... ... 157 The defendant refers to the decision of the Supreme Court in Moynihan v. Moynihan [1975] 1 I.R. 192 and the High Court in Holohan v. Minister for Defence and Others (Unreported, Kinlen J. 30th July, 1998). In that case that judge stated that "the basis in modern jurisprudence ... ...