Murtagh v Min for Defence and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Declan Budd
• Judgment Date: 22 July 2008
• Neutral Citation: [2008] IEHC 292
• Court: High Court
• Docket Number: 3563 P/1998
• Date: 22 July 2008

[2008] IEHC 292

THE HIGH COURT

3563 P/1998

Murtagh v Min for Defence & Ors

BETWEEN

VICTOR MURTAGH

PLAINTIFF

AND

THE MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

HOLDEN SHELL SHOCK 1ED 1998

JOHNSTON HOW MANY MILES TO BABYLON? PENGUIN ED 1988

KNOWLES v MIN FOR DEFENCE & ORS UNREP HIGH O'DONOVAN 22.2.2002 2002/15/3531

DALTON v FRENDO UNREP SUPREME O'HIGGINS 15.12.1977 1977/3/520A

MCHUGH v MIN FOR DEFENCE 2001 1 IR 424

SOUTHWICK, MORGAN, NICOLAOU & CHARNEY CONSISTENCY OF MEMORY FOR COMBAT-RELATED TRAUMATIC EVENTS IN VETERANS OF OPERATION DESERT STORM 1997 2 AMERICAN JOURNAL OF PSYCHIATRY 173

SPITZER (ED) DSM-IV CASEBOOOK: A LEARNING COMPANION TO THE DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS 4ED 1994 137

HOLDEN SHELL SHOCK 1ED 1998

BYRNE v GREAT SOUTHERN & WESTERN RAILWAY CO OF IRELAND UNREP COURT OF APPEAL FEB 1884

BELL & ANOR v GREAT NORTHERN RAILWAY CO OF IRELAND 1890-1 26 LRI 428

DULIEU v WHITE & SONS 1901 2 KB 669

MCLOUGHLIN v O'BRIAN & ORS 1983 1 AC 410

JAENSCH v COFFEY 1984 155 CLR 549

MULLALLY v BUS ÉIREANN 1992 ILRM 722

KELLY v HENNESSY 1995 3 IR 253

CURRAN v CADBURY (IRL) LTD 2000 2 ILRM 343

WHITE & ORS v CHIEF CONSTABLE OF SOUTH YORKSHIRE & ORS 1998 3 WLR 1509

ALCOCK & ORS v CHIEF CONSTABLE OF SOUTH YORKSHIRE 1992 1 AC 310

MCHUGH v MIN FOR DEFENCE 2001 1 IR 424

MAHER v JABIL GLOBAL SERVICES LTD 2005 16 ELR 233

QUIGLEY v COMPLEX TOOLING & MOULDING UNREP HIGH LAVAN 9.3.2005 2005/51/10690

PICKERING v MICROSOFT IRELAND OPERATIONS LTD 2006 17 ELR 65

STATUTE OF LIMITATIONS 1957 S11

STATUTE OF LIMITATIONS (AMENDMENT) ACT 1991 S3(1)

GOUGH v NEARY & CRONIN 2003 3 IR 92

NORTH ESSEX HEALTH AUTHORITY v SPARGO 1997 8 MED LR 125

STATUTE OF LIMITATIONS (AMENDMENT) ACT 1991 S2

STATUTE OF LIMITATIONS (AMENDMENT) ACT 1991 S2(3)

STATUTE OF LIMITATIONS (AMENDMENT) ACT 1991 S2(2)

STATUTE OF LIMITATIONS (AMENDMENT) ACT 1991 S2(2)(b)

TORT

Negligence

Personal injuries - Damages - Soldier - Post traumatic stress disorder - Noise induced deafness - Vulnerable personality - Immaturity - Stress following deaths of colleagues - Incapacitating states of anxiety - Heavy drinking - Insomnia - Nightmares - Alleged failure to diagnose and treat PTSD - Alleged failure to provide remedial treatment - Duty to take reasonable care for health and safety - Duty to keep abreast with contemporary knowledge - Continuing duties while in service - Correctness of diagnosis of PTSD - Failure to recognise symptoms - Knowledge of PTSD at time of tour - Accuracy of recall for traumatic events - Whether restrospective application of new diagnostic techniques - Repeated sick leave - Previous good work record - Knowledge of plaintiff's condition in the Lebanon - Misdiagnosis by army medical officers - Failure to observe or inquire into symptoms - Failure to follow up and monitor notwithstanding advice - Failure to inform or assist civilian doctors - Delay in acting when issue of PTSD first raised - Failure to acknowledge diagnosis of PTSD - Liability for psychiatric injuries - Nervous shock - Claim of statute bar - Delay - Whether statute bar live issue - Date of knowledge - Constructive knowledge - Knowledge of acts or omissions causing the injury - Failure of plaintiff to give information of problems to army and treating doctors - Reticence and avoidance - Alleged alcoholism - Failure to plead alcoholism - Quantum - Knowles v Minister for Defence (Unrep, O'Donovan J, 22/2/2002), Dalton v Frendo (Unrep, SC, 15/12/1977), McHugh v Minister for Defence [2001] IR 424, Byrne v Great Southern and Western Railway (Unrep, Court of Appeal, February 1884), Bell v Great Northern Railway Company of Ireland (1890) 26 LR Ir 428, Dulieu v White & Sons [1901] 2 KB 669, McLoughlin v O'Brian [1983] 1 AC 410, Jaensch v Coffey [1984] 155 CLR 549, Mullally v Bus Eireann [1982] ILRM 722, Kelly v Hennessy [1995] 3 IR 253, Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343, White v Chief Constable of South Yorkshire [1998] 3 WLR 1509, Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, Maher v Jabil Global Services Ltd [2005] 16 ELR 233, Quigley v Complex Tooling and Moulding (Unrep, Lavan J, 9/3/2005), Pickering v Microsoft Ireland Operations Ltd [2006] 17 ELR 65, Bradley v An Post [1998] 2 ILRM 1, Gough v Neary [2003] 3 IR 92 and Spargo v North Essex Health Authority [1997] 8 Med LR 125 considered - Statute of Limitations Act 1957 (No 6), s 11 - Statute of Limitations (Amendment) Act 1991 (No 18), ss 2 and 3 - Damages awarded (2008/3563P - Budd J - 22/7/2008) [2008] IEHC 292

Murtagh v Minister for Defence

: The plaintiff was a solider in the defence forces and volunteered to serve in the Lebanon. The plaintiff was exposed to considerable stress. The plaintiff alleged that the defendants were negligent in not providing treatment for him for his exposure to stressful incidents which led to post-traumatic stress disorder (PTSD) and alleged that the defendants had been under a duty to take reasonable care for his safety.

Held by Budd J. that there had been a failure to diagnose and treat the plaintiff and his vulnerability to PTSD was obvious. The defendants had been negligent and in breach of their duty of care to the plaintiff and there was a failure to have a proper system in place so as to treat him properly. Employers were under a duty of care to take reasonable care for his safety and the plaintiff was entitled to damages for the injury caused to him by reason of the negligence and breach of duty by the defendants. General and special damages would be awarded to the plaintiff in the amount of €305,513.

Reporter: E.F.

1 Mr. Justice Declan Budd on the 22nd day of July, 2008

Background

2 The plaintiff was a soldier in the Defence Forces. He was born on 22 ^nd October, 1965. He was aged three when his mother died in an accident and he was brought up by his maternal grandparents in Ballymote, Co. Sligo. Dr. Mary Scully, a local GP, gave evidence about his upbringing and knowing him while he was being brought up by his grandparents for whom she had a high regard. He and his wife Veronica were only eighteen when they married on 16 ^th February, 1984, and later that year in November 1984 at the age of nineteen he joined the Irish Defence Forces and was an employee of the army until he was discharged on 1 ^st March, 1998, as being medically unfit. They started their married life in a local authority house in Sligo town. In May 1986 they had their second child and the plaintiff was posted to Athlone and then Mullingar in preparation for duty in the Lebanon. They wished to move and to buy their own house in Ballymote and in order to fund this purchase, the plaintiff volunteered to serve in the Lebanon. On 11 ^th June, 1986, he was examined by army doctors, being his annual medical, and his fitness rating since his enlistment examination was confirmed as medical category A1. Soldiers going abroad on overseas service have to have further medical examination and he underwent this on 4 ^th September, 1986. This is recorded in his personal medical record book known as an LA30. His fitness category was in the top grade, being A1 which he had previously been given on enlistment in 1984 and this was again confirmed in June 1986. On 22 ^nd October, 1986, on his 21 ^st birthday, he flew out with the 60 ^th battalion to the Lebanon for a six month tour of duty, being his first and only tour abroad. Part of his training was as a mortar man in a weapons company. An element of this training involved his having been subjected to weapons fire, where troops are deployed in trenches and then weapons are fired over them to accustom them to being under gunfire and to give them some "battle inoculation".

3 Lebanon at that time had an atmosphere of hostility in that there were several different factions including the Israeli Defence Forces ("IDF"), the South Lebanese Army ("SLA"), Shia Moslems and Hezbollah (armed elements). On 21 ^st August, 1986, almost two months before the arrival of the 60 ^th Battalion, Lieutenant Frank Murphy had been the first Irish soldier killed during UNIFIL service in the Lebanon. This was while he was based at Camp Shamrock. Within days of their arrival at Camp Shamrock the battalion was subjected to hostile fire on a frequent and regular basis. The plaintiff became unwell on 29 ^th November, 1986, and was admitted to the RAP (Regimental Aid Post), a slight misnomer as it was a battalion hospital, at Tibnin. Lt-Col. Collins was the senior doctor who saw the plaintiff and in the LA30 he noted "query petit mal epilepsy attack on 29/11/1986" on pp. 26 and 27 of the LA30. This notation was followed by a medical sign meaning "secondary to exhaustion". The plaintiff had complained of a problem at the back of his throat and he was given an injection of diazepam, a form of Valium, to calm him down. He was kept in overnight and on 30 ^th November he was allowed to return to duty with the proviso that he was not to be on duty with less than two colleagues. The plaintiff's case is that the significance of this was that the army doctors had or should have realised that the plaintiff was of vulnerable personality and at risk and not coping with pressures of a post traumatic stress variety. Camp Shamrock was the Irish battalion headquarters near Tibnin village, and there was also Camp Shakra and Camp Charlie. Brashit was a company headquarters for the plaintiff's weapons platoon.

4 On 6 ^th December 1986 Private William O'Brien from Athlone was killed by gunfire. The troops were all trained in the use of radio transmitters and on 6 ^th December, 1986, the plaintiff was at a checkpoint post 6-21 and he heard that an Irish soldier had been injured. He had heard firing and then was aware of a UNIFIL helicopter arriving. He realised that this meant a serious or fatal injury...