McHugh v Minister for Defence

• Jurisdiction: Ireland
• Judge: Mr. Justice Declan Budd,Mr. JusticeBudd
• Judgment Date: 28 January 1999
• Neutral Citation: [1999] IEHC 91
• Date: 28 January 1999
• Docket Number: [Record No. 1994, 8066P],No. 8066P 1994
• Court: High Court

[1999] IEHC 91

THE HIGH COURT

No. 8066P 1994

MCHUGH v. MINISTER FOR DEFENCE & ORS

BETWEEN

DAVID McHUGH

PLAINTIFF

AND

THE MINISTER FOR DEFENCE IRELAND AND THE ATTORNEYGENERAL

DEFENDANTS

Citations:

MITCHELL & EVERLY CRITICAL INCIDENT STRESS DEBRIEFING 2ED

CASEY & CRAVEN PSYCHIATRY & THE LAW

GOGGIN LEADERS GUIDE TO POST ACTIVITY DEBRIEFING: PAD (1993)

GOGGIN CRITICAL INCIDENT STRESS DEBRIEFING CISD (1993)

Synopsis

- [2001] 1 IR 424

An employer has a duty to take reasonable care for the health and safety of his employees. In this case, the defence forces had a duty to keep abreast of contemporary knowledge concerning afflictions to which soldiers were exposed in the course of duty.

The plaintiff showed signs of stress after a tour of the Lebanon, during which he was exposed to life-threatening situations, but the symptoms were ignored by the plaintiff's superiors. The plaintiff eventually developed post-traumatic stress disorder and eventually, on psychiatric advice, he left the army.

The court found that the perils of post-traumatic stress disorder had been well-known to the defendants for many years and that they were negligent in failing to spot the obvious manifestations of post-traumatic stress disorder or failing to recognise the significance of the plaintiff's symptoms. The defendants were also negligent in failing to obtain remedial therapy for the plaintiff.

The court awarded general damages of £113,900 and special damages of £105,000.

1 Mr. Justice Declan Budddelivered on the 28th day of January 1999

2 The Plaintiff was a soldier in the Irish Defence Forces. He was brought up in Finglas and left school at the age of fourteen and worked for a bout three years in a supermarket. He was born on 12th March, 1962 and is now aged thirty six years and lives with his wife and three children in Bargy Road in the East Walt area of Dublin. At the age of seventeen years in 1979 he enlisted, after passing the usual medical examination on 11th June, 1979, and he was thereafter stationed at Collins Barracks and Clancy Barracks. He enjoyed good health and a cheerful outgoing disposition. From his enlistment he was recorded in his L.A. 30 (his medical record book) as having a medical grade of A.1. An entry on 27th September, 1995 shows him as downgraded to "C category". He was trained in an engineer company in search skills as a member of an engineer special search team (ESST). In 1981 he was sent on a Fáscourse and qualified as a bricklayer. It is common case that he was a good soldier, healthy in mind and body. He was selected to serve in the Lebanon with the 54th infantry battalion (1983–4), with the 67th infantry battalion (1990), and with the 72nd infantry battalion(1992–3). On this third tour of duty while based at Camp Shamrock near Tibnin the Plaintiff claims that on 1st November, 1992, and in early January 1993 and on15th and 17th February, 1993 he was involved with incidents which caused him post traumatic stress.

3 I emphasise at the outset that the Plaintiff is not claiming because he was subjected to stress or exposed to life-threatening experiences or to dangerous situations or to grisly dealings with mutilated corpses. These are happenings which are to be expected by Irish soldiers serving with UNIFIL in the Lebanon. The main thrust of the Plaintiff's claims as made in the pleadings, and as opened by Senior Counsel and made consistently during the nine day trial, has been based on the contention that while the Plaintiff was in the Lebanon between November 1992 and April 1993 he was exposed to traumatic incidents as a result of which he developed stress. The complaint is that his manifestations of stress were not recognised when they should have been or else were not adequately dealt with or treated by the Defendants, their servants and agents. The claim is that this was negligent and that as a result of this failure the Plaintiff developed and suffered from and continues to suffer from personal injury in the form of chronic post traumatic stress disorder (P.T.S.D.). The Plaintiff during his tour of duty in the Lebanon and in the months following his return was employed by the first named Defendant as a member of the permanent defence forces and as such the first named Defendant owed to the Plaintiff a duty of care which was to take reasonable care for the health and safety of the Plaintiff. The Defendants provided a medical corps consisting of two doctors in Camp Shamrock for medical assessment and treatment of the Irish soldiers there in order to be able to comply with this duty.

4 On 1st November, 1992 the Plaintiff was exposed to a life-threatening incident involving the unexpected and negligent discharge of a gun close beside him which caused him to have an immediate and severe reaction. The Plaintiff believed that the bullet fired by Sergeant Paul O'Reilly went directly over his head although it may well have been the ejected empty cartridge which in fact passed close to the Plaintiff's head. The Plaintiff's state of shock and upset after this life-threatening incident was obvious and he was dealt withsympathetically at the time by the Sergeant who realised his acute distress and told him to sit down in the billet and not to go on parade. It is contended that this incident sensitised the Plaintiff to stress and made him vulnerable. He went home on Christmas leave and when he returned to the Lebanon he was involved in three subsequent incidents which caused the Plaintiff to suffer stress. In early January 1993 an explosion occurred involving United Nations troops. The Plaintiff was travelling in a vehicle with his search team and came upon a United Nations jeep which appeared to have been blown up and to have bodies around it. This gory scene made an impression on the Plaintiff and his colleagues although they were told subsequently that this was merely a training exercise set up by Swedish UN troops. On 15th and 17th February, 1993 the Plaintiff and his ESST were required to perform particularly hazardous duties and were exposed to the sight of mutilated and shot up corpses. Neither the Plaintiff nor his colleagues in the ESST had had experience or training in dealing with mutilated bodies. It was common case that this was high risk search and recovery work. These incidents deeply affected the Plaintiff and he manifested symptoms of post traumatic stress. These were obvious and were the subject of comment among his fellow soldiers and their NCOs and were brought to the attention of his platoon commander by Sergeant Finbarr O'Reilly. In short it is contended that his symptoms were obvious and should have been recognised and treated and that, if he had been counselled in the Lebanon or within a short time of his return to Dublin then it would have been unlikely that his stress would have turned in to chronic post traumatic stress syndrome.

5 On 2nd May, 1996 the Defendants filed a defence which is a traverse of the Plaintiff's claim and indeed during the hearing Counsel for the Plaintiffs were put on proof of nearly all aspects of the Plaintiff's claim. This was rather surprising as most of the witnesses called by the Plaintiff were still in the army and one would have suspected the Defendants to have had foreknowledge of the nature of their evidence which on the whole supported the Plaintiff's contention. The nub of the defence involved a number of matters. First, it wassubmitted that the Plaintiff was the author of his own misfortune; it was suggested that it was his rifle which was discharged on 1st November, 1992 by the Sergeant and that it was the Plaintiff's subsequent sense of guilt, as a good and meticulous soldier, at this breach of discipline in leaving a bullet in the breech when going on parade, which caused him to become so upset. The Plaintiff's Counsel pointed out on that this line of defence was never pleaded. However, I myself had started this particular "hare" a bout a possible guilt complex on the part of the Plaintiff. I was rapidly convinced by the demeanour and evidence of the Plaintiff that this was a complete "red herring" if I may be forgiven for this mixed metaphor. Out of deference to the great experience of Senior Counsel who pursued this aspect, I will analyse my reasons after aprécis of the evidence.

6 The second line of defence was that the Plaintiff was the cause of his own problem in that he failed to report his disability while in the Lebanon and on his return to Ireland and failed to seek medical attention at an early stage before his disability became more serious. It was suggested that when the search sergeant, Finbarr O'Reilly, expressed concern a bout the Plaintiff to the platoon commander, he Commandant O'Cleirigh, spoke to the Plaintiff and advised him to see one of the doctors serving with the battalion. The first suggestion that such a conversation had taken place with the Plaintiff was made long after the Plaintiff had given evidence and he was recalled so that this suggestion could be put to him. He denied that any such conversation had taken place. It was clear that the Plaintiff had visited Doctor Claire O'Flynn in the Lebanon but only in respect of a long standing injury to his wrist. When he returned to Ireland he visited Surgeon Commandant O'Malley on three occasions in respect of the injured wrist. Counsel for the Plaintiff had opened the case on the basis that the Plaintiff's affliction was such that he himself was not in a position to recognise his symptoms and what was causing them. I will return to this later but this proposition does fit in with the psychiatric evidence and with the evidence of Lieutenant Colonel Goggin, the army psychologist, to the effect that only the officers and some NCOs who were going out tothe Lebanon in 1992 were lectured on and given the Colonel's booklet of notes with regard to stress. At that time in 1992 the officers but not the private soldiers were lectured...