Murtagh v Minister for Defence

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 30 July 2018
• Neutral Citation: [2018] IESC 37
• Court: Supreme Court
• Docket Number: [Record Number: 2008/346],[S.C. No. 346 of 2008]
• Date: 30 July 2018

BETWEEN:

VICTOR MURTAGH

PLAINTIFF/RESPONDENT

- AND -

MINISTER FOR DEFENCE, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS/APPELLANTS

[2018] IESC 37

[Record Number: 2008/346]

THE SUPREME COURT

Unfair trial – Statute of Limitations – Quantum of damages – Appellant seeking to appeal against the judgment and order of the High Court whereby the appellant was found liable in negligence – Whether the trial was unfair

Facts: The first appellant, the Minister for Defence, appealed to the Supreme Court against the judgment and order of the High Court (Budd J) dated the 30th July 2008 whereby the Minister was found liable in negligence for certain psychological injuries sustained by the respondent, Mr Murtagh, in the Lebanon during a tour of duty with the Irish armed forces which commenced around October 1986, and the failure to diagnose and treat him appropriately upon his return in a timely manner, so that as a result his condition became chronic, and for other loss and damage. Damages, including special damages, in the amount of €305,523.00 were awarded to the respondent following a trial which lasted 28 days. The Minister's grounds of appeal were: (a) the unsatisfactory/unfair nature of the trial; (b) the Statute of Limitations; (c) the assessment of the evidence and findings of fact; and (d) the quantum of damages awarded.

Held by Peart J that the trial was not constitutionally unfair, notwithstanding the excessive and largely unnecessary interruptions and interventions by the trial judge at all stages of the trial. On the basis of the grounds advanced, Peart J held that no properly informed reasonable and objective observer knowing the facts would have a reasonable apprehension that the trial judge would be biased and that the defendants would not receive a fair hearing. Peart J held that the trial judge's conclusions on the statute issue were correct and that his decision in that regard should be upheld. Peart J was satisfied that the finding of negligence against the defendants was amply supported by credible evidence that the trial judge was entitled to accept and to prefer to other evidence that he heard. Peart J held that he would reduce the figure of €270,000 for pain and suffering up to the date of the trial, on the basis that it took into account matters that were not factors in the case. He considered the sum of €150,000 to be more appropriate.

Peart J held that he would dismiss the appeal on all grounds with the exception of the figure awarded in respect of general damages. He would substitute the sum of €150,000 for past and future pain and suffering.

Appeal dismissed in part.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 30TH DAY OF JULY 2018

1 This is the Minister's appeal against the judgment and order of the High Court (Budd J.) dated the 30th July 2008 whereby the Minister was found liable in negligence for certain psychological injuries sustained by the plaintiff in the Lebanon during a tour of duty with the Irish armed forces which commenced around October 1986, and the failure to diagnose and treat him appropriately upon his return in a timely manner, so that as a result his condition became chronic, and for other loss and damage. Damages, including special damages, in the amount of €305,523.00 were awarded to the plaintiff following a trial which lasted 28 days.

2 This particular tour of duty was described in evidence by one of the plaintiff's superior officers as 'a tough tour'. The plaintiff was a young man aged just 21 years at the time, and this was his first tour of duty in the Lebanon. Before leaving for the Lebanon he had undergone the usual training, and also medical examinations which indicated a rating of A1 both in terms of physical fitness and general health.

3 But within days of his arrival the plaintiff was exposed to a number of dangerous and stressful incidents and situations which traumatised him, including regular exposure to live fire. The details of these incidents and situations are described in detail in the judgment of the trial judge and do not need to be repeated here. The plaintiff was unwell by the 29th November 1986 and was admitted to a battalion hospital at Tibnin. In this regard the trial judge stated:

'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 LA 30. 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 30th 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 the pressures of a post traumatic stress variety ....'

4 Following his return to duty the plaintiff suffered further incidents of stress, including the fact that on the 6th December 1986 a fellow soldier, Private William O'Brien, who the plaintiff knew, was killed by gunfire, and again on the 10th January 1987 Corporal Dermot McLoughlin was killed by a shrapnel round fired from an Israeli Defence Force tank. As noted by the trial judge, Corporal McLoughlin, who like the plaintiff was from Sligo, had befriended him and had been supportive of the plaintiff when the plaintiff had been stricken by fear.

5 The trial judge described how it was known around the camp that the plaintiff was suffering more than most from the stressful events occurring around him during this tour of duty, and exhibiting clear signs of stress such as uncontrollable shaking and trembling. The trial judge stated in this regard:

'The vulnerability of the plaintiff due to his immaturity at only just 21, and his gentle personality and strong reaction to the noise of thunderstorms or firing close to his position, and the effect which such incidents had in causing him acute anxiety states, should all have alerted the officers under whose command he was serving and the army doctors to the fact that [the plaintiff] was particularly susceptible to post traumatic stress.'

6 On his return to Ireland in April 1987 when this tour of duty ended the plaintiff was clearly suffering still from the after-effects of these incidents to which he had been exposed. His wife described him as having a changed personality, and being difficult and irritable, particularly with his children. He had flashbacks and had difficulty sleeping. His mental state deteriorated, and his changed behaviours eventually led to a breakdown of his marriage. He also drank heavily after his return home. I note that there was evidence that he was a heavy drinker before he went to the Lebanon also, and I will return to that issue.

7 While he received treatment both privately and from the army medical personnel for his heavy drinking, there was a delay in the diagnosis of, and therefore treatment for, post traumatic stress disorder (PTSD), even though the doctor treating his alcohol problems privately had suggested in a letter to the army doctor that his alcohol problems might be a consequence of PTSD. That possibility was not investigated by the army as quickly as it ought to have been, and the plaintiff's PTSD therefore remained untreated for a significant period during which he continued to suffer and deteriorate. An opinion that the plaintiff could be suffering from PTSD was made by Capt. O'Loughlin on the 17th November 1995, and on the 29th February 1997 following the administration of the CAPS test, she was able to confirm that he had contracted PTSD in the Lebanon. This condition had therefore remained undiagnosed and untreated during the years following his return to Ireland with devastating effects on his life and his relationships.

8 Following a lengthy and exhaustive examination of the evidence and discussion of the legal issues that arise in relation to the plaintiff's claims against the defendants, the trial judge concluded as follows on the issue of negligence:

'In conclusion, it is obvious that the defendants their servants or agents failed in their duty of care to the plaintiff in all the circumstances, not by his exposure to danger and traumatic incidents including close firing, explosions and the death of colleagues but in their failure to take appropriate care for the health of the plaintiff, and in failing to observe and recognise the warning signs of PTS in the panic stricken, incapacitating states of the plaintiff in Lebanon and the failure to recognise the significant symptoms of PTSD manifested by the plaintiff, and negligently failed to refer the plaintiff to the army psychiatrist, and failed to obtain remedial therapy and treatment for the plaintiff.'

9 Having reached his conclusions on the issue of negligence, the trial judge then addressed the issue raised by the defendants in their defence as to whether the plaintiff's proceedings were statute-barred. I will deal with this in more detail in due course. It suffices to note for present purposes that the trial judge concluded that the plaintiff's claim was not statute barred.

10 The Minister's grounds of appeal can be conveniently stated under four general headings:

(a) the unsatisfactory/unfair nature of the trial;

(b) the Statute of Limitations;

(c) the assessment of the evidence and findings of fact, and

(d) the quantum of damages awarded.

(a) The unsatisfactory/unfair nature of the trial

11 This ground of appeal can be conveniently sub-divided into two separate issues:

(i) excessive interruptions and interventions by the trial judge, and

(ii) objective bias.

(i) Excessive interruptions and interventions by the trial judge

12 There is no doubt in...