Murtagh -v- Minister for Defence & Ors, [2008] IEHC 292 (2008)

Docket Number:1998 3563 P
Party Name:Murtagh, Minister for Defence & Ors
Judge:Budd J.
 
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THE HIGH COURT1988 No. 3563 PBETWEENVICTOR MURTAGHPLAINTIFFANDTHE MINISTER FOR DEFENCE, IRELAND ANDTHE ATTORNEY GENERALDEFENDANTSJUDGMENT delivered by Mr. Justice Declan Budd on the 22nd day of July, 2008 BackgroundThe plaintiff was a soldier in the Defence Forces. He was born on 22nd 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 16th 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 1st 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 11th 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 4th 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 22nd October, 1986, on his 21st birthday, he flew out with the 60th 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".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 21st August, 1986, almost two months before the arrival of the 60th 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 29th 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 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 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.On 6th 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 6th 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 requiring an airlift to hospital. The plaintiff naturally was stressed by this event. He had trained with and knew William O'Brien.On 10th January, 1987, Corporal Dermot McLoughlin was killed by a shrapnel round from an IDF tank. The Corporal was from Co. Sligo, as was the plaintiff. According to several of the other NCOs who gave evidence, Dermot McLoughlin had befriended and been supportive and caring of the plaintiff when on occasions the plaintiff had been stricken by fear. The Corporal had looked after him and restored him with a cup of tea, talk and sympathy. While the plaintiff was not physically present at the post at which either of his colleagues was killed, nevertheless he had been at an outpost which was within hearing of the fatal gunfire and of the tank shell explosion and was aware of these incidents as the outposts have radio contact with the company headquarters and, he was aware of the calls for ambulance and helicopter and then learned of these sudden and unexpected deaths of Irish soldiers well known to him. From all that Victor Murtagh said of Cpl McLoughlin, it was clear that he and his colleagues held Dermot McLoughlin in high esteem and Victor Murtagh particularly was grateful to Corporal McLoughlin for his advice, help and encouragement to him in his times of acute anxiety. I mention this because Cpl. McLoughlin's widow was called as a witness by counsel for the defendants and an issue was made as to whether Vincent Murtagh had been a friend of the late Dermot McLoughlin at all. This issue is one of several points in conflict which the court needs to resolve. There is one aspect of this which I should emphasise at this stage, which is that the evidence of Victor Murtagh and of the Corporal's fellow NCOs was all in praise of the conduct of Cpl. McLoughlin and, in particular, of his kindness and consideration and help to Victor Murtagh whom he had comforted in his distress when Victor was upset by close firing or by the ferocious electrical storms of the Lebanon in winter. I will return to the issues which arose which upset Mrs. McLoughlin in the hope that since my assessment of her late husband's role in the Victor Murtagh saga was all entirely to Dermot McLoughlin's credit, this may help to alleviate any unresolved grief syndrome in respect of her late husband who was clearly a decent and humane man, ready to help his fellow county man in distress, while serving far from home in the Lebanon beset by hostile factions.It is common case that the 60th Battalion tour of duty was more than stressful and Lt.-Col. Maurice Collins, the senior medical officer, made this clear and often said that this was "a tough battalion". Clearly the plaintiff and his colleagues particularly in December, 1986 and January, 1987, came under close firing and threats from the faction fighting between the IDF, SLA (the surrogates of the IDF) and Hezbollah and "Armed Elements". It is significant that a number of the NCOs commented on how stressful this tour had been and one veteran NCO conceded that on his return that he had taken to the drink to cope with his experiences and memories in the Lebanon that winter and that it had taken him quite some time before he managed to escape from using alcohol as a palliative and regain a normal lifestyle.It is noteworthy that the plaintiff was examined at the RAP at Tibnin in the episode mentioned above when he was brought in on 29th November, 1986, having become distressed and after losing consciousness. He was examined and then kept in overnight and injected with diazepam as a sedative. On the plaintiff's Overseas Service Report AF667A the senior medical officer, Lt.-Col. Maurice Collins, wrote on 18th April, 1987, just before the plaintiff returned home, "This man is relatively emotionally immature and came under very severe pressure. He is liable to incapacitating anxiety states in such circumstances and should NOT serve o/seas for three years". The plaintiff had gone to the Lebanon after several medical examinations at the first of which on his enlistment he had been rated as a medical Cat. A1. In the course of this case it has been suggested on behalf of the defendants that the plaintiff suffered from alcoholism, having been drinking from an early age and as having a susceptibility to alcoholism before ever he volunteered to go to the Lebanon. Counsel for the plaintiff cogently made the point that it was hardly likely that the army would risk having an alcoholic mortar man in the weapons company of the battalion and that it seemed highly improbable that the army would risk having such weapons in the hands of an alcoholic on an overseas tour of duty, when such an addiction would involve danger to his fellow soldiers, and when, indeed, the Irish people take such a great pride in the expected and respected high standards of the Irish peace keeping battalions. The significance of the plaintiff's treatment and recuperation over two days at the end of November is that Lt.-Col. Collins was clearly aware of the plaintiff's acute state of anxiety and indeed, as a humane and dutiful medical man caring for his patients, he had gone out, as was his practice, in his jeep and checked out soldiers who came under his care with their platoon or company officers. He would have been aware from his discussions with Capt. McEvoy, the plaintiff's platoon commander, and with Cpl. Gaffney, and Sgt Gerry McCabe as well as CQMS Flanagan, among whom it was well known, that Victor Murtagh was suffering more stress than others and was reacting at times to gunfire and to electrical storms, with thunder and lightning, by uncontrollable shaking and...

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