McHugh v. Minister for Defence [1999] IEHC 91; [2001] 1 IR 424 (28th January, 1999)

1. 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 about 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 Wall 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 Fás course 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 on 15th and 17th February, 1993 he was involved with incidents which caused him post traumatic stress.

2. 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 claim 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.

3. 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 with sympathetically 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.

4. 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 was submitted 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 that this line of defence was never pleaded. However, I myself had started this particular "hare" about 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 a précis of the evidence.

5. 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 about 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 to the 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 on traumatic stress. It is clear that the Defendants through Colonel Goggin since 1986 had been clearly aware of the very real problem of P.T.S.D. for personnel in armies after critical incidents.

7. In the heel of the hunt it is conceded that the Plaintiff suffered and suffers from P.T.S.D. although there are some differences between the doctors as to the intensity of the condition and in respect of the prognosis. It is accepted clearly and properly that his condition came about originating from the Plaintiff's experiences in the Lebanon. The Defendants contend that the Plaintiff has failed to prove negligence in that the test to be applied is not what a consultant psychiatrist would do if given particular information about the person but what a reasonable army officer would do if acting with ordinary care in the circumstances in the Lebanon and in Dublin in the early part of 1993. I will return to the question of the appropriate test to be applied after I have set out a précis of the salient evidence.

8. At the outset of the case I warned Counsel that since 1991 I had dealt with a considerable number of P.T.S.D. cases as the nominated Judge under the Garda Compensation Acts. I alerted Counsel to this as I am very conscious that "a little learning is a dangerous thing". I know that there are perils for a judge who thinks that he knows about a subject from his own experience. However over the last eight years I have seen many plaintiffs suffering from post traumatic stress giving evidence about critical incidents and their effects on them. A brief history of the state of knowledge with regard to post traumatic stress disorder mainly gleaned from the evidence of Colonel Goggin, the army psychologist, and Dr. O'Loughlin, the former Army psychiatrist, both of whom gave evidence in the case, may assist in an understanding of the background and context of the events in this case. Counsel were aware of the fact that I had the second edition (revised) of "Critical Incident Stress Debriefing" by Doctor Jeffrey T Mitchell and George S. Everly Jr. in my possession as well as "Psychiatry and the Law" by Patricia Casey and Ciaran Craven which has a particularly helpful chapter with regard to emotional disorders following personal injury. I have been careful not to infer by retrospection a greater extent of knowledge of P.T.S.D. than there actually was in 1992. During the trial two helpful pamphlets by Colonel Goggin were handed in namely a "Leaders guide to post activity debriefing : PAD" and "Critical Incident Stress Debriefing CISD". I was first of all told that these were published in 1996 but subsequently this was corrected and I was told that they were available in 1993. However they are clearly after in time and so not relevant to the state of knowledge of Irish officers serving with the 72nd Battalion in the Lebanon in 1992/3. It was more than a little surprising that it was only at the end of the cross-examination of the Plaintiff that Counsel for the Defendants were made aware by their clients of the existence of Lieutenant Colonel Goggin's booklet of notes about stress which was extant since 1990/1.

9. Lieutenant Colonel Goggin is a veteran who has been in the army for forty four years. He has served abroad in the Congo and as a military policeman and was at one time Governor of the Curragh Prison. Since 1970 he has been the army psychologist. In the mid-1980s he was attending military conferences of psychologists and was familiar with the need to raise the awareness of the perils of stress and the need to recognise it. He has been in the forefront of developing a policy of raising awareness in the army of the peril of critical incidents and stress particularly with regard to troops going overseas. Before he produced two fine pamphlets on PAD and CISD circulated in 1993 (after the relevant time in this case), he had distributed his six pages of notes on stress from about 1990 or 1991. The seventh page of this booklet of notes was actually drafted by Doctor Finnuala O'Loughlin, at the time an army psychiatrist. Colonel Goggin briefed officers as to what to look out for in respect of stress. Such knowledge was available from the mid-1980s and his notes went to officers about 1990 and possibly also to senior NCOs as well. The notes went to other ranks about 1993. I append page seven as drafted by Captain O'Loughlin and circulated by Colonel Goggin to the officers going with the 72nd Infantry Battalion to the Lebanon. They also attended a lecture by Colonel Goggin on stress and what to look out for by way of symptoms. It is significant that Captain O'Loughlin writing about 1990 wrote: "THESE days we hear a lot of talk about post traumatic stress disorder. This is a disorder which sometimes affects people who have experienced situations which were extremely violent or upsetting. It involves re-experiencing the event persistently in their dreams or thoughts.

10. Recognition that combat could lead to emotional suffering, long after a war has ended, came about in the early twentieth century. Terms such as "shell shock", "battle fatigue" and "post traumatic stress disorder (PTSD)" were applied. It became recognised that the effects were due to shocking emotional experiences and that war was not the only cause of PTSD as it could arise from other experiences outside the realms of normal experience. A life-threatening injury of a sudden and unexpected variety would appear to be a prevalent stressor. On occasions a garda who has been awarded a Scott medal for exceptional bravery in the past in taking on armed robbers has subsequently suffered PTSD after a relatively minor incident. The theme that appears to underpin such events is the threat, real or perceived, to life. In this context, the threat perceived by the Plaintiff to his life on 1st November, 1992 is significant. The latency period between the trauma occurring and the onset of symptoms is said to vary from a few hours to a few months. The clusters of symptoms which are likely to occur in the disorder are:- (I quote from "Psychiatry and the Law" at p 86)

12. The prognosis for these personality changes is poor. PTS can be reduced or relieved by psychological debriefing. It is clear that early remedial intervention by counselling, debriefing and relaxation techniques can reduce stress. Colonel Goggin is clearly a distinguished and fair army officer with much experience, including service as an officer overseas, and with, since 1970, psychological expertise. I accept his evidence without reservation in particular that if the Plaintiff was manifesting such symptoms as sleeplessness at night, sleeping at midday, obsessive talking about particular topics and talking with staring eyes, then these matters should have been reported to his commanding officer who should have referred him to the medical corps. He pointed out that stress is normal and is only abnormal above a certain level; it can be cumulative and leave a residue which makes one more vulnerable to trauma. It only becomes an illness if not treated and at a certain level. Treatment can include exercises in respect of breathing and relaxation of muscles and positive thinking. It was clear from the evidence of Doctor O'Loughlin and Doctor Paul McQuaid, Consultant Psychiatrist, that the earlier the remedial intervention the more likely is the prevention or relief of the disorder. As Doctor McQuaid put it:- "since the Second World War the research is quite clear that the earlier the mental health intervention the more rapid and satisfactory the recovery is likely to be".

13. The Plaintiff gave evidence about his background and family circumstances and how he joined up in 1979 at the age of seventeen. In October 1979 he was posted to the engineers in Clancy Barracks and he subsequently was trained as a bricklayer and as a member of an ESST. He said that he enjoyed the army life very much with the variety of activities and that he would have stayed on the normal thirty one years with retirement about 2010. He was selected for the 72nd Battalion tour of duty in late 1992 in the Lebanon. On 1st November, 1992 at Camp Shamrock near Tibnin village he was going on to an inspection parade. On such a parade it is obligatory to have one's weapon clean and unloaded. Sergeant Paul O'Reilly, the Platoon Sergeant, came from his accommodation. There were young soldiers from Naas present and the Sergeant said to be sure that the weapon was clear. The Plaintiff heard a bang and something flew over his head. Private Hennessy said:- "you were lucky. That was very close". There is a conflict of evidence as to whose gun was fired by the Sergeant. The Plaintiff was adamant that it was not his gun. The platoon Sergeant on the other hand recalled that it was the Plaintiff's weapon and that he, the Sergeant, pulled the trigger. According to their commanding officer this pulling of the trigger without having checked whether there was a bullet in the breach was a chargeable offence and he, Commandant, then Captain O'Cleirigh, should have been informed of this event. The Plaintiff was very shocked and distressed; he put his head in his hands. Sergeant O'Reilly dealt with him properly and sympathetically and made his Company Sergeant aware of the incident and its immediate effect on the Plaintiff. The Plaintiff walked in to the engineers' billet and sat down and put his head in his hands. He had a cry, while some of his colleagues were looking at him. Sergeant O'Reilly came to him and said that he should take it easy and have a cup of coffee and need not attend the parade. The Plaintiff himself acknowledged that his reaction was an extreme response. His health had been fine before this and he had never felt resentment or fear before in the army and had previously gone through "battle inoculation courses" . Explosions and fire over his head had never bothered him before and he had had no qualms about going again to the Lebanon. Leading Senior Counsel for the Defendants intervened to make a very proper concession to the effect that the Plaintiff had been regarded as a good soldier and that the Defendants wanted him to stay in the army and could not understand why he had left the army. The Plaintiff explained that he had reacted in a way which he would not expect and which he had never done before. He went on home leave on 17th December, 1992 over Christmas. He was aware that his wife and family found him quiet over Christmas. On 4th January, 1993 he returned to the Lebanon.

14. Counsel for the Plaintiff objected to the suggestion put in cross examination that the gun which was fired on 1st November, 1992 was the Plaintiff's gun. No suggestion was ever made in the pleadings that it was the Plaintiff's gun. Since there is a conflict on this topic and Counsel for the Defendants puts stress on this aspect, I have considered the evidence carefully including the evidence of Acting Corporal Sampson who was a careful, clear, stolid and uninventive witness. He had done three tours of duty in the Lebanon before 1992/3. On 1st November, 1992 he was present before the parade. He said that Sergeant O'Reilly had a gun; there was no magazine on the gun at the time. Sergeant O'Reilly was cleaning a weapon when he came from the top billet. He heard a gun being cocked, the Sergeant had it at the time it was fired. He thought the gun was Sergeant O'Reilly's. He was not sure if Private McHugh had his gun then but he thought that he had. He said that: "We all got a fright. Private McHugh more than the rest of us and he didn't go on parade" . On balance I prefer acting Corporal Sampson's account but this topic has been blown out of all proportion. The Defendants never made the case in the pleadings that it was the Plaintiff's gun. It was quite clear, and I accept the Plaintiff's evidence, that he certainly never believed that it was his gun and so any suggestion of a guilt complex on his part is fallacious. This particular "hare" was started by my question which was intended to rule in or out such a conjecture. The Plaintiff was adamant that he could not recall Sergeant O'Reilly taking his weapon and that if he did take it then it was empty. I do not think that it was the Plaintiff's gun that was fired, and if it had been, then I am sure that Acting Corporal Sampson would have been aware of this suggestion and of chat about this. He was a careful and conscientious witness and this would have been revealed to the Court. While I accept that the Plaintiff was a meticulous soldier I do not place any credence on the suggestion that he was affected by a guilt complex in respect of this incident.

15. At 2:20p.m. on 3rd December, 1998 on the first day of the trial I was made aware that there was a difficulty in persuading the Plaintiff to return to Court because of his acute distress at the recall of the incident involving the discharge of the rifle on 1st November, 1992. It should be borne in mind that this was during the Plaintiff's direct examination and that no suggestion had ever been made previously since 1st November, 1992 ascribing any blame to him whatsoever in respect of the negligent discharge of the gun by his platoon Sergeant. I regret using a comparison which might mistakenly be regarded as pejorative. The best description which I can give of the Plaintiff's demeanour when he was eventually cajoled by his Counsel to come back into Court was that he reminded me of the appearance and behaviour of a gun-shy dog after the noise of a shot being fired. I should add that I am well aware of the views of the school of thought which regards "accident neurosis" or " compensation neurosis" as the basis for emotional damage caused by trauma where there is no obvious physical pathology. There is however a contrary school of thought which holds that the psychological consequences of such injuries are similar in jurisdictions where there is no possibility of litigation seeking compensation, as in Spain, to the effects seen where legal proceedings are relatively common. Over the last eight years I have had to assess the medical evidence and the evidence and demeanour of Plaintiffs in often four or five PTSD cases on a Monday. It is obviously easier to assess a fractured bone than it is to form a considered view about a psychiatric disorder. A natural scepticism may be overcome by psychiatric and physiological evidence and the evidence, appearance and demeanour of an Applicant. Based on such evidence in this case and on my considered view of the Plaintiff, I am quite certain that he is a witness of truth and that his reluctance to resume his evidence owed nothing to deceit or to play-acting. Incidentally, I formed the overall view based on the evidence of his superior officers and his NCOs, as well as his colleagues, that he had been a disciplined, deferential and good soldier capable of using his initiative but also obedient to orders. This has a bearing on the issue which I will come to as to whether he was ever instructed to attend the doctor by his platoon commander because of depression.

17. A second incident occurred on 15th February, 1993 when the Plaintiff was called out as a member of the ESST to recover a body. The Plaintiff observed with a powerful swiftscope while Captain Power and Corporal Sampson had to lift the body to check for weapons and booby traps. The Plaintiff and the others in the ESST searched in a zig zag fashion along a cable laid up the hill to rocket launchers. The Plaintiff said that he was able to see the body with the swiftscope and that he was upset at the leaving of the mutilated body and also by the fact that an officer was moving along with and interfering with the work of the ESST while using a video camera. It is fair to say that all the ESST, including the Search Sergeant and Captain Power, who was naturally reticent in his choice of words, were concerned by the presence of an officer who was not a trusted member of the ESST. A third incident occurred on 17th February, 1993. The ESST had to recover the bodies of two dead Arabs from a wadi. There was very real danger to the ESST in this work. The Plaintiff's role was in security in the rear of the team. Again the use of the video camera upset the team.

18. I digress to deal with the video issue which apparently loomed large in the Defendants' perspective on this case although the Plaintiff's Counsel made it clear repeatedly that the propriety of the Battalion Operations Officer moving in along with the ESST and making a video of them and their work was not relevant to the issues in this case. The Plaintiff's Counsel frequently pointed out that neither the hierarchy of command, or the lack of explanation for the making of the video film were particularly material. It was stressed that the unequivocal and unrefuted evidence was that the presence of the officer using the video had upset the ESST on both days; despite requests, he had gone into the search area which the team had been trained to regard as their exclusive terrain. Plaintiff's Counsel emphasised that the significant aspect for this case was the undoubted effect which the presence of the officer and the making of the video film had on the Plaintiff and his colleagues. There was unequivocal evidence that the team, particularly Corporal Sampson, the Plaintiff and Sergeant O'Reilly (the Search Sergeant) were all upset. Counsel for the Plaintiff objected to the showing of the video film which incidentally some of the officers had told the men had been erased. Counsel for the Plaintiff made it clear that he had no criticism of Counsel or Solicitor for the Defendants in respect of the conduct of the case but was strongly criticising the unnecessary incurring of costs by witnesses being called to justify the making of the video. It had been made clear that there was no criticism of the making of the video for training purposes but there was criticism of the timing and the method of the making of the film. There would have been no problem if the officer had remained outside the search area and used a zoom lens but the failure to comply with the request made by Captain Power and the intrusion into the search area had upset the team. At the insistent urging of Counsel for the Defendants I allowed the video to be shown. The film certainly helps one to understand the terrain, the dangers and the grisly nature of the work of checking out the mutilated corpses for weapons and booby traps. The very real danger for the search team was brought home by Colonel Quinn's comment that at one point Captain Power and Corporal Sampson, wearing the protective clothing of bomb disposal officers while making safe a body, had both jumped at a noise which resembled the clicking of the lever of a hand grenade. Colonel Quinn said that at that point he thought that "they were both dead" !

19. I have no doubt that the video film was useful for the debriefing meeting which took place between Colonel Quinn and the Officer commanding the Battalion. Likewise I accept that it was a useful training device for showing to officers subsequently going on tours of duty to the Lebanon It certainly brought home the perilous nature of the work and the type of terrain and the proximity of armed elements and the overlooking SLA strongholds. However, I am compelled to agree with the Plaintiff's Counsel in his submission that this side-issue must have involved a considerable unnecessary escalation of costs. I should add that it may be premature to come to such a conclusion in the course of evidence in a case and that it is only with consideration and hindsight that a Judge can come to such an opinion. I will return to this issue and at the same time deal with the Plaintiff's Counsels' criticism of the conduct of this case by the Defendants (although no criticism was levelled at Counsel or Solicitor). He remarked on the failure to make proper discovery. Since the case being made by the Plaintiff was clearly set out in the Statement of Claim, Counsel criticised the delay in the production of the notes with regard to stress which had been made by Colonel Goggin and distributed to officers since 1990 or thereabouts before they went on tours of duty abroad. It is incomprehensible why these notes, which were clearly at the heart of this case, were not mentioned in the discovery of documents. The claim in the proceedings was made quite clearly on the basis of failure to recognise and deal with PTSD. I have no doubt that one of the reasons for the length of this case was that these notes were withheld from the Defendants' Counsel by the Defendants until well into the trial. They were obviously of vital importance in the light of the pleadings.

21. In April 1993 the Plaintiff returned home. He knew that something was affecting him and he went to see Commandant Mannion in Clancy Barracks. He was crying and told the Commandant about the three incidents and the video camera. He told him that he was very upset about what had happened. He had had thirty days UN leave on his return and the Commandant gave him three weeks extra leave. The Plaintiff had explained that he was not able to return to work as he was not settling back and he wanted to take a holiday with his wife and children. Despite having been told about the incidents concerning mutilated bodies and the Plaintiff's obvious and visible distressed state, which must have been highly unusual in an experienced veteran who had done three tours of duty overseas, the Commandant unfortunately did not refer the Plaintiff to a doctor or for counselling. Due to Colonel Goggin's work I have no doubt that knowledge was widespread among the officers in the army that PTSD was an affliction in respect of which it behoved them to keep a watch particularly in respect of troops returning from the Lebanon who had been involved in life- threatening and gruesome operations. The Plaintiffs' story, symptoms and out-of-character crying before this commanding officer should have set off alarm bells about PTSD. No justification was offered for the negligent failure to refer the Plaintiff for medical help which was obviously necessary. The Defendants chose not to call the Commandant and this omission can only be likened to having to sit through the entire of Hamlet without the Prince of Denmark being brought on to the stage.

23. In December 1993 the Plaintiff told his Company Sergeant that he intended to leave the army and he subsequently told Captain Byrne that it was all too much for him. A medical orderly called in Mr. Mick Lacey, the army social worker, and he at once recognised the need for the Plaintiff to attend Lieutenant Colonel Goggin. The Plaintiff was then referred to St. Bricin's Hospital where in due course he came under the care of the army psychiatrist Captain Finnuala O'Loughlin. He found it very difficult to talk to her at first. She kept him in hospital for thirty days and monitored his progress. He believes that in due course he was downgraded to C medical grading by a medical board but in fact a procedural error occurred and so this downgrading was rescinded. When the Plaintiff left the army on 23rd March, 1997 on the advice of the treating consultant psychiatrist, Doctor Finnuala O'Loughlin, formerly Captain O'Loughlin, he was under the impression that his medical grade was Grade C. He was given an exemplary discharge and a gratuity. However I regard the oft repeated suggestion that the Defendants cannot understand why he left as being disingenuous. The gratuity was of £8,135.00.

24. Doctor O'Loughlin referred the Plaintiff to Doctor Richard Booth a psychologist in St. Patrick's Hospital who counselled the Plaintiff for eighteen months. Unfortunately one civilian doctor engaged by the army, who apparently had not read the Plaintiff's file, dealt caustically and unsympathetically with the Plaintiff and evidence was given that such scepticism and treatment of the Plaintiff would be detrimental to his recuperation and to his genuine efforts to rehabilitate himself and mitigate his injury. I do not propose to dwell on this unfortunate episode which seems quite extraordinary in the light of the Plaintiff's history and the clear diagnosis of PTSD by the treating psychiatrist Doctor O'Loughlin. This particular doctor was another witness whom the Defendants chose not to call; this is hardly surprising in view of the findings by Doctor James Corbett, the consultant psychiatrist requested to examine the Plaintiff by the Defendants in the light of Doctor Corbett's conclusion, in his report dated 26th November, 1997, that the Plaintiff had experienced a post traumatic stress disorder of moderate intensity as a result of his experiences in the Lebanon. While there may be argument as to the intensity and permanence of the PTSD, nevertheless it is clear that Doctor Corbett agrees with Doctor McQuaid and Doctor Finnuala O'Loughlin that the Plaintiff was suffering from PTSD caused as a result of his experiences on duty in the Lebanon.

25. In September 1996 the Plaintiff was in St. Bricin's again for five days under Doctor Woolhead for assessment. He was told by Captain Margiotta that he was going to be medically downgraded. Subsequently the Plaintiff was referred to a doctor in the Eastern Health Board and he was advised to go back to the care of Doctor O'Loughlin. Subsequently on 4th November, 1996 the Plaintiff was re-admitted to St. Bricin's for four days under Commandment Doctor Leonard. He managed to do a week's clerical work in 1996 and was on light duties. It is easy to understand the Plaintiff's sense of frustration and demoralisation as the weeks passed and he took what he termed "two steps forward and five backwards" . Eventually on 23rd March, 1997 he left the army on the advice of his treating psychiatrist Doctor O'Loughlin. This was a responsible and entirely justifiable decision taken on the advise of his psychiatrist who had made a correct diagnosis of his chronic PTSD. There was a suggestion by the Defendant's Counsel that Doctor O'Loughlin made a preliminary diagnosis of depression. I do not regard this as a correct representation of the evidence of Doctor O'Loughlin. The gist of her evidence was that on a brief initial chat with the Plaintiff she thought he was probably depressed but after interviewing him and monitoring him during his thirty day stay in St. Bricin's she rapidly had come to the conclusion that he was suffering from PTSD as a result of the incidents in the Lebanon. She soon realised that he had been sensitised by the life-threatening event involving the negligent discharge by his Sergeant of the shot on 1st November, 1992 and then subsequently was further traumatised by the three operations involving gruesome sightings of bodies in early 1993 and showed this by the continual manifestations of the type of symptoms as outlined by her in her page for inclusion in Colonel Goggin's notes.

26. I have no hesitation in accepting the Plaintiff's evidence that he enjoyed life in the army before his traumatisation and that he only left the army because he was advised that this was necessary for the recovery of his own health and for the welfare of himself and his family. I accept that he would otherwise in all probability have served for the full thirty one years if he had kept his good health and that by leaving after eighteen years he was going to be at the loss of pension entitlements which he would have obtained after a minimum service of twenty one years. He must have had an anxious and agonising time in making up his mind to accept Doctor O'Loughlin's advice to leave a secure job which he had enjoyed previously and to risk the loss of the security of his pension rights. I attribute his decision to a courageous determination on his part to rehabilitate himself and to do his best to recover from the PTSD.

28. Sergeant Paul O'Reilly was the Platoon Sergeant of the engineer platoon of the Plaintiff in the Lebanon. He got to know the Plaintiff well. The Plaintiff carried out instructions to the best of his ability. He was a jolly individual who was accepted by his colleagues and never caused any disciplinary problem. He was a good and meticulous soldier; "without any doubt a good man to have backing you and who did his job right" . After 1st November, 1992 there was a change in the Plaintiff; he was withdrawn in himself. Both the Sergeant and his brother, the Search Sergeant Finbarr O'Reilly, were aware of and had both noticed this change in the Plaintiff. His brother and the other members of the search team had noticed the change in the Plaintiff because they were talking about how the Plaintiff used to get up at nights and go walking around and could not sleep. He said that the Plaintiff was not the same individual as he was at the start of the trip. The Sergeant was aware of that although the Plaintiff would talk more to his brother. He was upsetting the other lads who were aware of this as he was affecting their patterns of sleep. There was a spare room in the NCOs' accommodation at the top of the camp and in order to help the Plaintiff, the Sergeant moved him into the top billet near the NCOs. The Sergeant's purpose was to make the Plaintiff feel more wanted and so that the NCOs were there to be talked to if the Plaintiff needed to talk to them.

29. The Sergeant said that on 1st November, 1992 it was the Plaintiff's weapon which he had taken and that it was he, the Sergeant, who had pulled the trigger. He had reported the incident to Company Quarter Master Sergeant Hanley. He did not know if any doctor was made aware of the Plaintiff's condition in the Lebanon. He himself did not mention the Plaintiff's condition to Captain O'Cleirigh. The ESST previously had had no training with dead bodies nor been shown videos in respect of such work. Finally the Sergeant described the Plaintiff's appearance on the evening of 1st November, 1992 when he noticed that the Plaintiff still looked upset and was still showing signs of shock and disbelief. Acting Corporal Sampson confirmed that none of his training in the ESST involved the removal of dead or dismembered bodies. He had done three tours to the Lebanon before 1992/3. His first experience of the dealing with retrieval of bodies was in February 1992. He confirmed that the early January 1993 exercise had looked exceedingly real, particularly the bodies as of casualties. On 15th February, 1993 the search team was under pressure as this was a very high risk operation. He and Captain Power had gone in to make the bodies safe. He had asked the officer with the video camera to leave as the job they were doing was putting them under strain enough without an unnecessary cameraman. All the ESST were very upset about the presence of the officer with the video. After a few days the others were alright but the Plaintiff went on about this all the time and was most adversely affected. Corporal Sampson made it clear that in 1993 there was never a formal debriefing after such an incident and the word "debriefing" was not used in the Lebanon in early 1993. He did not know that debriefing was a preventative procedure to avoid stress. After the recovery of the two badly shot up bodies on 17th February, 1993 the team were complaining again about the video. Nearer the end of the trip he was told by Captain O'Cleirigh that it had been erased. He did not believe this. He said that the Plaintiff talked incessantly about the bodies in the wadi and the use of the video camera: "he never let it go at all" . The Plaintiff asked him on numerous occasions about the video and he asked Captain O'Cleirigh, his platoon officer, who was back from holidays. The Plaintiff was moved into his billet as the Plaintiff was walking around at night keeping people awake. Before 1st November, 1992 the Plaintiff was cheery, very helpful and a very good soldier, who enjoyed his work and did as he was told. After 1st November, 1992 he became "picky" over jobs and he later was annoying people because he was constantly on about the video all the time. He was "very picky" and easy to annoy. He would say that there was a serious change in the Plaintiff's personality. He was present on numerous occasions after the incidents in February 1993 when the Plaintiff asked Captain O'Cleirigh to sort out about the video; indeed he brought up the matter each day for at least ten days. Inquiries on this topic were renewed frequently during the two or three weeks before the battalion returned home.

30. Acting Sergeant Finbarr O'Reilly was the Search Sergeant with the 72nd Battalion. He has made six tours overseas, six as an Acting Sergeant. He had never done a training exercise with a dead body. While up to April 1993 after a search the team would have a cup of tea and a "yak", he had never attended a meeting up to April 1993 which was to deal with the physical, emotional or psychological welfare of the search team. He had never been at such a meeting and that included on 15th and 17th February, 1993. The searches on 15th February, 1992 and 17th February, 1992 were exceptional and different. He shared the concern of the team at the presence of an untrained person using a video camera. It was contrary to their training and he had relayed the concern of the soldiers to Captain Power. He had previously found the Plaintiff to be outgoing, helpful and joyful and a good member of the team. When he was transferred to the top billet the Plaintiff always wanted to talk about the video and what had been done on the searches. He would be "yakking on" about the same things the next day and he would be looking at you "with staring eyes". He was incessantly talking on the same topics and staring. The gist of the Sergeant's evidence was that most evenings the Plaintiff would be in the room and would be going on for five or six hours about these topics. When he would see him a day or two later he would still be "yakking on" about the same things. The Sergeant even gave a dramatic demonstration of how the Plaintiff would stare at you while he was talking to you.

33. In fairness to Sergeant Paul O'Reilly I should say that, while I have come to the conclusion on the peripheral matter of whose weapon it was which he discharged on 1st November, 1992, on balance I concluded that his recollection was probably faulty in that the gun was not that of the Plaintiff, nevertheless I think it is only proper that I should add that I have listened carefully to the evidence given by the brothers, the Sergeants O'Reilly. They are both honest witnesses and well respected. Sergeant Paul O'Reilly dealt sympathetically with the Plaintiff after noting his distress on 1st November, 1992 and later by moving his billet. It is quite clear that both the Sergeants noted the change in the personality of the Plaintiff and were concerned about this. Sergeant Finbarr O'Reilly made it clear that the Plaintiff would never shut up but kept on coming back to the same subjects and was staring in a strange way. He stood out and was different from the rest of the team in this respect. He spoke to Captain O'Cleirigh about how the Company Quarter Master Sergeant was being looked after by doctors whereas the ESST were not. He thought Captain O'Cleirigh should have brought this higher so that the team could get out of their system what had happened to them, but nothing came of his suggestion. I accept the evidence of the two Sergeants that the Plaintiff was behaving very strangely and I have no doubt that their officers on enquiry would have readily learnt from either of them that the Plaintiff was manifesting symptoms of PTSD such as sleep disturbance and also obsessional conversations on the same incessant topics. Sergeant Finbarr O'Reilly acted very correctly in drawing the need for counselling to Captain O'Cleirigh's attention.

34. Private Aidan O'Connor was present for the three incidents being those in early January, and on the 15th and the 17th of February 1993. He had known the Plaintiff for many years as he was also in the Second Field Engineers at Clancy Barracks and knew the Plaintiff was a good soldier who liked his work and was a sound happy person who would do his job. He described how the Plaintiff's sleeping pattern changed. He would sleep in front of the television during the day rather than sleeping at night. The Plaintiff also got on the lads' nerves because he was going on and on about the searches and the video. He confirmed the evidence of several other witnesses to the effect that the ESST were never trained in dealing with dead or mutilated bodies. He said the Plaintiff was going on about the video both before and after he, the witness, went on two and a half weeks leave in March 1993.

36. I have already outlined the evidence given by Lieutenant Colonel Goggin who was a most impressive witness. I accept his evidence that he was raising awareness of PTSD in the army since the mid-1980's and had briefed officers going overseas since 1990 or 1991 to look out for the symptoms. The notes which he distributed would obviously have been most helpful and relevant. A fair summary of the symptoms which the Plaintiff was manifesting was given to Colonel Goggin and I accept his authoritative answers speaking as a veteran officer of forty four years that if the Plaintiff after the four incidents described was "yakking on" in an obsessive manner with staring eyes and was waking at night and sleeping at midday to the extent that his Sergeant moved his billet, then this uncharacteristic behaviour should have been reported to his commanding officer and he, in turn, should have referred him to the medical corps. While Colonel Goggin was talking with all the authority of the army psychologist, in my view he was saying what an ordinary army officer should have done in the Lebanon in early 1993 once he became aware of these signs of stress in the Plaintiff. He went on to explain that post traumatic stress is normal and only becomes an illness if it is not treated and reaches a certain level . Treatment involves therapy such as deep breathing and muscle relaxing exercises, positive thinking, talking about the events and at times medication.

39. Doctor Richard Booth, a psychologist in St. Patrick's Hospital, made it clear that he was attending on subpoena and that he was not prepared to furnish a report as this could affect his patient's trust in him. He explained that in early 1994 Colonel Walsh, the army medical director, had asked Professor Clare to arrange a link up in respect of treatment of PTSD between the army and St. Patrick's Hospital. There had been five or six referrals of soldiers to him. He had made it a condition that the army would not have access to his notes and that he would not be expected to give reports in cases. He wanted simply to be involved in treatment and lack of confidentiality could hinder his patients' recovery. He had no difficulty in confirming the army diagnosis of PTSD after the Plaintiff was referred to him on 2nd March, 1994. He treated the Plaintiff for eighteen months which length of time was an indication of the seriousness of his condition and the context of his surroundings, in particular the turnover of staff in St. Bricin's. In August 1994 the army insisted on access to Dr Booth's notes. He made it clear that he could not treat his patients properly in PTSD cases if his notes were available to the army. It was agreed to terminate his contract on the basis that he would continue to treat his two existing patients until September 1995. By then he had looked after the Plaintiff for some eighteen months. The condition was serious and the Plaintiff was suffering from uncertainty about the duties which he might be required to do and from anxiety about the attitude of certain of the medical personnel in St. Bricin's. Dr Booth said that by the end of September 1995 the Plaintiff was not symptom-free when he returned under the care of Doctor O'Loughlin. Many factors could impede his recovery including the prospect of this case. Furthermore the end of the case might not lead to recovery. Having looked at the Plaintiff outside the court Dr Booth thought that he was in very poor emotional shape and looked upset, drained and agitated. The Plaintiff's reaction was not the normal nervous reaction of someone who is not used to being in Court but looked to him to be a good deal more serious than that. While he had not treated the Plaintiff for three years he had known him relatively well and the Plaintiff appeared to him to be in a high degree of agitation and he would be surprised if just being in Court would produce this.

40. On Thursday 10th December, 1998, on the fifth day of this trial Counsel for the Plaintiff sought a formal order for immediate production of the seven pages of notes compiled by Lieutenant Colonel Goggin and for the original of the Plaintiff's LA30 and the medical records about the Plaintiff in the Defendants' possession, in particular Doctor O'Loughlin's own record notes of her treatment of the Plaintiff. He also pointed out that the Defendants were now admitting that Sergeant O'Reilly had informed Captain O'Cleirigh of the Plaintiff's unusual behaviour. In view of the Defendants' failure to make discovery of the seven page booklet of notes about stress, the Plaintiff's Counsel also requested immediate discovery be made of any notes in being in the possession of the Defendants which indicated an acceptance of knowledge on the part of the Defendants of the Plaintiff's condition subsequent to November 1992. I expressed grave disquiet that the notes which appeared to be at the kernel of this case had still not been produced to the Defendants' Counsel nor to the Plaintiff's legal representatives, particularly as the notes were obviously central to the issues raised in the pleadings in this case and one would have expected them to have been included in the Affidavit of discovery.

psychiatry in the army and as Captain O'Loughlin first saw the Plaintiff on 20th January, 1994. After a short chat she formed the impression that the Plaintiff was depressed but very shortly made a fuller diagnosis in the light of conversations with him to the effect that he did not have a simple depression but was suffering from PTSD. He had no previous psychiatric history and had come through service in the Lebanon previously unscathed. The cause of his PTSD was his experiences in the Lebanon. She had monitored him in St. Bricin's from 20th January, 1994 to 17th February, 1994 and prescribed some anti-depressant and hypnotic medication for him and treated him with psychotherapy mainly in the form of conversations with him. She was quite sure that the Plaintiff's complaints were genuine and he was a co-operative patient who wanted to get better. He had been happy in the army and wanted to continue in the army. His symptoms continued and he was referred to Doctor Booth in St. Patrick's. In July 1994 she returned from maternity leave and saw him regularly thereafter. From July 1994 to September 1995 the patient was on prozac which is primarily an anti-depressant which lifts and restores mood and affects anxiety symptoms. He also was on the anxiolytic xanax and continues to have to take medication from time to time for treatment of anxiety and sleep disturbance. In September 1995 he still had sleep disturbance, irritability and social withdrawal. In October 1995 Doctor O'Loughlin started a therapy group for about seven patients suffering from PTSD. The Plaintiff found this therapy helpful. The Plaintiff wanted to get better and go back to work but up to June 1996 he was not capable of full duties as he was still suffering from PTSD. He was always co-operative and took the medication which was prescribed. She had monitored him constantly and indeed when he felt under pressure she had told him to phone her every day. She resigned from the army in June 1996 but she continued to see him regularly about once a month since then. In August 1996 he was despondent and told her that he was suffering from aggression and irritability and was dreaming a lot about blood and gore and shouting in his sleep; he was also going for long walks on his own and was feeling pressurised at work. In November 1996 she discussed with him whether he would be better to leave the army as it was clear that still being in the army was having a detrimental effect on his recovery from a chronic condition of PTSD with depressed mood and anxiety. She regarded him as having been downgraded to medical category C on 27th September, 1995. It was clear that he was suffering from all three groups of symptoms of PTSD. First of all, he was re-experiencing the events by way of flashbacks, memories and dreams. Secondly, he was subject to hyper-arousal involving sleep disturbances, increased irritability and excessive anger. Thirdly, he manifested avoidance of matters which would remind him of the incidents. In 1997 the Plaintiff had been attending rehabilitation day centres and was well motivated to get back to work. However, he was not better and was still having trouble with sleep and in March 1997 she regarded him as still being unfit to do a job. She was still seeing him each month and found that in 1998 he had disimproved. He was anxious about the case. Her prognosis was that he would try to resume work after the anxiety about the case had settled down but such work could not be in the army nor would he be able to handle a job where he came under pressure or stress. His life would never be smooth and he would suffer bad days with sleepiness and crankiness. He would benefit from having a job and a regular pattern of life but he would still continue to have mild to moderate symptoms of PTSD and she could not say if and when his symptoms might resolve.

42. Speaking with the authority of the treating psychiatrist and as a former army officer with more than eleven years service Dr O'Loughlin said that if the Plaintiff was acting in a way apparent to his colleagues and his Sergeant as described, namely incessant and obsessional talking about certain incidents, sleep disturbance to the extent that he interfered with his colleagues' sleep and his platoon Sergeant changed his billet, if he was "yakking on" with staring eyes and had changed from having a jolly co-operative disposition to being withdrawn, then he should have been referred by his superiors to a medical officer. It would have been straightforward to tie these very disturbed and out-of-character symptoms to the prior incidents. It was part of the role of the medical corps in the Lebanon to look after the physical and mental well-being of personnel. If he had been referred in March 1993, then he would have been helped to recognise that his was a normal response to abnormal situations. Any doctor seeing him at that time would have talked to him and let him talk so as to get to the root of his problems. A mental state examination would have out ruled psychosis and if he had been treated then for acute stress reaction this would have helped and would probably have reduced or prevented the development of PTSD. The granting of an extra three weeks leave on top of the four week leave after the tour of duty was appropriate but he should also have been referred for medical attention. The earlier the intervention the better, as the longer the condition goes on the harder it is to treat and to cure. On 7th February, 1994 the Plaintiff had told the psychiatrist about the incident of the unexpected shot on 1st November, 1992; she took the view that the nervous shock had sensitised the Plaintiff but the shot did not cause PTSD which stemmed from the incidents involving the mutilated bodies. She said that a small proportion of the soldiers who had served in the Lebanon suffer from PTSD. She was emphatic under cross-examination that the Plaintiff will have permanent sequelae and that the Plaintiff would never make a full recovery but would have symptoms and would always have some difficulties although she hoped that he might be able in the future to work again. She disagreed with Doctor Corbett's suggestion that the symptoms of PTSD were not of significance as she believed that the Plaintiff would have permanent sequelae. She confirmed that the Plaintiff would not necessarily have understood his own condition. The Plaintiff had been open and co-operative in more than fifty consultations with her and in the group sessions. If he had any problem with regard to guilt in respect of the premise that it was his rifle which was discharged on 1st November, 1992 then he would have revealed this to her. This further confirmed my view that the suggestion originally made by myself about a guilt complex was entirely fallacious and was "a hare" which was not a "runner".

45. Doctor Paul McQuaid gave evidence that he had seen the Plaintiff on 17th January, 1995 and on 7th May, 1996 and had summarised the history taken by him and his conclusion and opinion in his reports dated respectively 25th January, 1995 and 8th May, 1996. Doctor McQuaid is an experienced and eminent consultant psychiatrist. His conclusions agreed with those of Doctor O'Loughlin. Accordingly I propose only to highlight some salient features of his evidence and to give his conclusions. On 17th January, 1995 the Plaintiff told Doctor McQuaid that while he was in the Lebanon there was a commanding officer's inspection and that going on inspection they were supposed to have cleared their magazines; his weapon was cleared; "the Sergeant had a young fellow with four years in - he was showing him how to check a weapon with his own - I was standing in front of the weapon. The round went off - I was dead if it had hit me". At this point in his story to Dr McQuaid the Plaintiff had broken down and cried. He went on - that it seemed as if he had buried this. He had then described very distressing episodes of bodies blown up with the corpses' faces blown away. Doctor McQuaid ruled out psychosis and decided that the Plaintiff manifested the criteria in the literature as necessary for a diagnosis of PTSD. His opinion was that had the Plaintiff not had the experience of the discharge of the shot then he would have been less vulnerable to the three subsequent incidents. Doctor McQuaid said that his subsequent change in personality, irritability, sleep and mood disturbance, flash backs, sensitivity, trouble at home with his wife and children, and many other factors are criteria specific to the diagnosis of PTSD, associated with significant mood change. In his opinion the Plaintiff sustained a significantly threatening and dangerous experience on the occasion of the accidental discharge of the rifle as described. Additional very disturbing experiences with bodies of mutilated Arabs in the Lebanon war zone were also described. His experiences were not atypical of those described by Vietnam veterans of the US Army. In his subsequent meeting with the Plaintiff on 7th May, 1996 the Plaintiff said that he was "like a leper" and felt isolated and alone. He was still having difficulties at home and was having upsetting dreams.

46. Doctor McQuaid said that if the Plaintiff's superiors were aware of the incidents experienced and of the change in the Plaintiff's functioning then they should have referred the Plaintiff for full evaluation. If the medical corps had the training and expertise which should have obtained in 1993 then Doctor McQuaid had little doubt but that the Plaintiff would have been assessed and diagnosed to the point of recognition of his underlying problem, being that he had PTSD. If this had been done in March 1993 then the research and information since the Second World War was quite clear that the earlier the mental health intervention then the more rapid and satisfactory the recovery was likely to be. He agreed that the PTSD was of moderate intensity and that vulnerability remained in that there was always the risk of re-exposure to stress which could re-trigger the previous traumatic experience. I should add that Doctor McQuaid is an eminent psychiatrist who in my view does not mistake "a goose for a swan" . I accept his view that the Plaintiff comes over as honest and truthful. Furthermore, the Plaintiff never expressed any sense of guilt about the incident on 1st November, 1992 to him.

47. Paula Smith, a rehabilitation expert, gave evidence that she had interviewed the Plaintiff and had read the medical reports. She had advised the Plaintiff to register with the National Rehabilitation Board and he had done this and had attended a training centre run by the Eastern Health Board for eight months for basic skills training. She doubted if the Plaintiff would be able to get a clerical job due to his lack of educational qualifications. While he might improve his computer skills his qualifications were inadequate in a competitive market. While he was physically capable of doing jobs the difficulty was because of his continuing psychological problems. He would have to retrain to work as a brick layer but there was the problem that he does not wish to work as a brick layer and sees himself as being able for a clerical role. He would need assistance to retrain and to obtain a job and in this context a one, two or three year stint with a Fás Community Employment Scheme might assist him to build up more marketable experience and eventually to obtain employment. While the Plaintiff had done a three month computer course in the army in 1993 and was keen to become computer literate he would have difficulty in competition for administrative work. Furthermore his psychiatric record would be against him. Nevertheless the Plaintiff had acted on his doctors' advice and had also done as she, Paula Smith, had suggested. He was physically capable of doing a job, although he would have difficulties involving psychological motivation and in respect of the type of job in which he would be able to cope. If he were to come around to doing work as a bricklayer then he would need to find a compatible small builder prepared to employ him.

49. Brendan Lynch, Consultant Actuary, was also called and he gave the appropriate multiplier for the Plaintiff for £1.00 lost per week between the present and the Plaintiff attaining the age of sixty as being 848.00. He would have been earning £264.00 net per week if still in the army. There was obviously conflicts as to his capacity to earn in the future and in respect of culpability for this. By way of example, if the Plaintiff only succeeded in earning £160.00 net per week then there would be a differential of £104.00 of a loss giving a capital value of £88,192.00. I should point out that this is only a guideline figure and much depends on the view which the Court takes as to when and if the Plaintiff will gain employment and at what rate of pay. For example, the Defendants suggest that as a bricklayer he might be able to obtain a job considerably more remunerative than his pay in the army. I was told that a figure of £22,295.00 had been agreed as his loss in respect of his basic pay from 23rd March, 1997 until 15th December, 1998. I was also told by the Plaintiff that he was at a loss of £14.00 net per week in respect of guard duties for which he had no longer been eligible, as a result of which he had been at a loss of £1,470.00 to date. I accept the Plaintiff's evidence that he would in all likelihood have gone on a fourth trip and perhaps two or three more trips to the Lebanon as most engineers go six or more times. The third trip had paid for the central heating in his house and he was looking forward to building an extension to the house in respect of which the £5,000.00 extra for such a fourth tour of duty would have been helpful.

51. In respect of future loss the Plaintiff explained that he would lose £14.00 net per week in respect of duties; if allowed, this £14.00 applying the multiplier of 848 to age sixty would give a capital sum now of £11,872.00. He was fed by the army when on duty and this was a benefit worth about £12.00 per week; this likewise would give a figure of £10,176.00. Since he wore uniform at work he would now be at a loss of about £300.00 per annum or £6.00 per week giving a value of £5,088.00. He also no longer had the benefit of the army gym facility and had to expend £290.00 on a subscription for this last year. He reckoned he now had to pay £2.00 per week in respect of dental treatment. At £5.50 per week the cost of the gym subscription would capitalise at £4,664.00 and the dental treatment of £2.00 at £1,696.00. The Plaintiff had been paying on average £14.00 per week to his G.P. and his consultant and £7.50 per week on average for medication. I accept that both these items of payment are likely to continue into the future for the rest of his life. The medical card is means tested. If the joint income of a couple is over £129.00 then they lose the medical card. Thus if the Plaintiff ends up with a capital sum in excess of £70,000.00 he is likely to lose his medical card and he will have to pay on average £14.00 per week to doctors and £7.50 for medication each week. The multiplier for the rest of his life is 991.00 so that the cost of paying doctors can be assessed at a capital sum of £13,874.00 now and the cost of medication likewise at a cost of £7,433.00. These figures are set out to indicate the substantial extent of the claim made on behalf of the Plaintiff. I shall analyse the figures further below.

53. Lieutenant Colonel Quinn as a Commandant in the Lebanon with the 72nd Battalion was the Operations Officer which meant he was third in command of the Irish battalion. He explained that in early January 1993 there had been an exercise simulating a mine accident put on by Swedish Engineers. The exercise had started before time and this was why the Irish troops were not warned that it was merely an exercise. Both the search operations on 15th February, 1993 and 17th February, 1993 had been dangerous operations. There was civilian Arab pressure to recover bodies of "armed elements" and on 15th February, 1993 there was a threat that if the rockets hit the S.L.A. compound then Camp Shamrock would come under fire. He had his video camera with him for both these search and recovery operations with the purpose that the video film could subsequently be used for training and briefing officers of the 74th Battalion. He subsequently used the video film for debriefing purposes and the Commanding officer and he had watched the video; he said that he thought that it was vital to make a record of the operations as what one could see on film was worth a thousand words. He gave a graphic account of both operations. His video film was later shown in Court and brought home to all present the very real dangers of the work being done by Irish troops in the Lebanon. Colonel Quinn confirmed that on 17th February, 1993 Captain Power had asked him not to use the video but he took the view that there was good reason for him to go down into the wadi with Captain Power and Corporal Sampson and to use his video.

55. Colonel Quinn was obviously an experienced officer who preferred to lead his men from in front in dangerous situations as in the wadi on 17th February, 1993. While he did not recall any in-depth briefing on PTSD before October 1992 his response to an accurate description given of the type of behaviour being manifested by the Plaintiff after the two searches by the ESST was enlightening. The gist of his evidence was that if a soldier was awake and walking about at night disturbing his colleagues and talking on obsessively about topics, then this would have been concern to him and his comrades and his Sergeant should have reported this and his superiors should have brought this to the attention of the doctor who would send for the patient. The fact that the Plaintiff had been moved from one billet to another would add emphasis to the problem and would have caused concern to him if he were in the position of the Plaintiff's officer.

56. Captain Declan Power was in command of the ESST on 15th February, 1993 and 17th February, 1993 and described the two searches and the recovery of the bodies. He confirmed the descriptions already given and explained that on 15th February, 1993 after their return they had tea and then met to discuss the operation. The main complaint was about the making of the video film. Both the Plaintiff and Corporal Sampson among others were vocal about the video. Between the two searches he became aware that the Plaintiff was upset but he thought that this was because his son was sick. On 17th February, 1993 he used the Plaintiff in a less demanding but not less stressful role and he saw no change in the Plaintiff. They had had one or two other search operations and he had also used the Plaintiff on engineering works. He found him to be helpful and co-operative. He was not aware of deterioration in the Plaintiff's personality. He did recall having a one hour briefing from Lieutenant Colonel Goggin in respect of stress before they went to the Lebanon in 1992.

57. Commandant O'Cleirigh was the Plaintiff's platoon commander. In March 1993 Sergeant Finbarr O'Reilly reported that the Plaintiff was a little depressed and asked the Commandant (then a Captain) to have a word with him. The platoon commander said that a day or two afterwards he had spoken to the Plaintiff. He could not recollect where this conversation took place but he thought it would have been somewhere like the top billet. He noticed that the Plaintiff was more subdued than he was at the very start of the trip; he did not notice the Plaintiff staring and nobody reported his walking about at night to him. There was no deterioration in the Plaintiff's work although when the Commandant went to him he did "look a little down" . Commandant O'Cleirigh said that the first incident of the discharge of the shot in November 1992 should have been reported to him but was not.

58. Commandant O'Cleirigh explained that on about 17th February, 1993 he had returned to the Lebanon from leave and became aware of the Plaintiff's distress and spoke to him when the Plaintiff showed some anxiety about the bodies and the video. He confirmed that the ESST had not handled dead bodies before. Having seen the Plaintiff himself, the Commandant described him as distressed and anguished. The Commandant said that he advised the Plaintiff to go to the doctor. He agreed that his testimony was at variance with the Plaintiff on this and suggested that the Plaintiff did not remember a lot of salient points about his trip to the Lebanon. When asked to give examples of this he stated that the Plaintiff could not remember whose rifle it was from which the round was discharged; this was an inaccurate statement about the plaintiff's evidence. He was unable to give other examples of what he had referred to as "very salient points" which the Plaintiff could not remember. Subsequently he said that while he had not asked the Plaintiff if he had gone to the doctor, he was in contact before the end of the tour with Commandant Charles O'Malley when they went to have coffee together and he discussed potential stress relating to search with Surgeon O'Malley. He had discussed Private McHugh informally with the doctor and so his understanding was that the Plaintiff had reported to Charles O'Malley; he now knew that there was no written record made of such a visit. He said that, however, the billets of the engineers were adjacent to the medical aid post and they often had conversations with the medical staff there. He was asked why he did not follow up the matter if he knew that the Plaintiff was suffering from stress and anguish. He replied that over the six months in the Lebanon three members of his platoon were repatriated on compassionate grounds. The Plaintiff was not the most anguished engineer that he saw on his trip to the Lebanon in those six months. The anguish of two other individuals, which he had witnessed directly, and of a third, whose behaviour was reported to him, far exceeded that of the Plaintiff. However, it turned out that none of these three were repatriated because of post traumatic stress but rather they were under stress in the Lebanon because of difficulties at home in Ireland. Commandant O'Cleirigh agreed that he had attended the lecture by Colonel Goggin and that he knew about post traumatic stress. One soldier went through a bout of extreme anguish and his weapon had to be taken from him as he was threatening to shoot himself but, that problem was resolved out there. The Plaintiff worked well as a soldier and as a tradesman. The Commandant had seen that the Plaintiff was "under the weather" . He said that he had advised him to see the doctor and he had listened sympathetically to the Plaintiff's concerns; he knew that his billet had been changed. There were younger men in the lower billet. He had made a report to the Director of Engineers about the six months in the Lebanon and he had included a short paragraph pertaining to stress relating to search activity. He had in mind the Plaintiff's condition but not just him but also the stress and the talk that was going on right through the trip. He knew that Private McHugh had been to some extent stressed out there. He reiterated that he had the Plaintiff in mind when he wrote the paragraph on post traumatic stress disorder in his report. He confirmed that it was a particularly stressful trip from a search perspective. He saw that the Plaintiff was stressed but his distress was not so great that the Commandant felt that it was his duty to check up on him afterwards. The Commandant had only once been in the Lebanon. Captain Power and Sergeant Paul O'Reilly might have said that the Plaintiff was acting strangely; but he could not recall in what respects they said he had been acting strangely. He was observing the Plaintiff especially because he was brought to his attention. The Commandant recalled reading Colonel Goggin's notes but he could not remember where he saw them.

59. Commandant Charles O'Malley is an army surgeon and was with the 72nd battalion in Lebanon. On 20th November, 1992 he was aware from the Plaintiff's LA30 that Doctor Claire O'Flynn had made an entry about the Plaintiff's painful left wrist. On 12th April, 1993 Doctor O'Malley had examined the left wrist which had been giving trouble on and off since 1988 and he advised that the Plaintiff should have an x-ray in St. Bricin's on his return home. Doctor O'Malley said that, in the context of Lebanon, psychiatric illness was dangerous and that if the Plaintiff was sent to him for this then he would have made a note recording this. He did not recall any member of the search team being brought to his attention as suffering from either anxiety or stress. As doctors they would have been watching out for people behaving strangely from anxiety or worry. I have juxtaposed the evidence of Commandant O'Cleirigh and Commandant O'Malley because of the apparent conflict in their evidence as to whether Commandant O'Cleirigh did bring his concern about the Plaintiff to Commandant O'Malley's attention. I have come to the conclusion that if mention had been made to Commandant O'Malley of behaviour indicative of stress-related problems in a member of the ESST, then Commandant O'Malley would remember this as he would have been very alive to the problems of PTSD. Furthermore he would have sent for the Plaintiff and talked to him and would have realised that he was suffering stress from the four incidents. Once Sergeant Finbarr O'Reilly mentioned to his platoon commander that he was worried about the Plaintiff then it seems extraordinary that no enquiry would have been made by the officer as to how he was behaving if this was causing worry. It seems odd that an officer would not ask about and be able to recall what were the manifestations. If the platoon commander did order the Plaintiff to attend the doctor and he did not do so, then this would have been a further indication of his out-of-character behaviour in a usually competent and obedient soldier.

61. Doctor James Corbett, consultant psychiatrist, gave evidence on the lines set out in his two medical reports dated respectively 26th November, 1997 and 22nd October, 1998. He saw the Plaintiff on 22nd October, 1997 and took a history broadly on the lines already set out. He came to the opinion that the Plaintiff had experienced a post traumatic stress disorder of moderate intensity as a result of his experiences in the Lebanon. He had responded to treatment and appeared much improved. On 22nd October, 1997 he thought the remaining symptoms were not of great intensity and he expected them to resolve over a twelve to eighteen month period. He felt that the symptoms should not debar the Plaintiff from gainful employment in the interim and that the Plaintiff would not experience permanent sequelae as a result of his experiences. He found that the Plaintiff was a pleasant man who gave a coherent account of his experiences. He said that the Plaintiff had positive motivation. Doctor Corbett added that the Plaintiff has still got minimal symptoms of PTSD which will continue into the future; if he gets over his flashbacks, then, once these are concluded, he should pick up a normal life. By 21st October, 1998 he felt that the Plaintiff was disenchanted in that he was unable to obtain employment which was acceptable to him; his symptoms of post traumatic stress disorder were not of significance and he had come to terms with his experiences in the Lebanon. He added that post traumatic stress disorder does make one vulnerable to similar experiences in the future.

62. Having listened carefully to the Plaintiff himself and having observed him carefully while he was in Court and having read the medical reports of Doctor O'Loughlin, Doctor Paul McQuaid, Colonel Goggin the psychologist, and Doctor James Corbett and having considered all their evidence, I have come to the conclusion that there is no doubt that the Plaintiff was sensitised by the incident on 1st November, 1992 and subsequently was subjected to stress in the three incidents involving the bodies. He manifested symptoms which were well known to other members of the team and were remarked on by Corporal Sampson, the Sergeants O'Reilly and Commandant O'Cleirigh. He should have been referred to the doctor. I do not think that he was told to go to the doctor as he would have gone to the doctor if he was told to do so by his officer. The doctors at Tibnin would have been on the alert for post traumatic stress and if mention of the Plaintiff's behaviour had been made to Doctor O'Malley or if the Plaintiff had been referred to him then this would have been noted in his medical record.

64. Secondly, I have come to the conclusion that the Plaintiff was manifesting quite obvious symptoms of post traumatic stress after the Swedish exercise incident in early January 1993 and particularly after the two hazardous searches in mid February 1993 involving the checking out and recovery of the mutilated bodies of the armed elements. His odd behaviour was well known to members of the team and to his two Sergeants and his search Sergeant conveyed their concern to the platoon commander. The officers had been alerted to the perils of PTSD by Colonel Goggin in his lecture and by the booklet of notes on stress which he had distributed to the officers going to the Lebanon. On proper enquiry being made by his officers the extent and seriousness of the Plaintiff's symptoms would have become apparent and the Plaintiff would have been referred to the doctors who would have diagnosed his post traumatic stress disorder at an early stage and thus have given an opportunity for remedial therapy, which would either have quickly relieved the symptoms or else have greatly reduced them so that he would not have suffered from any long-lasting PTSD which has been resistant to therapy and remedy.

65. I accept that the Plaintiff himself did not appreciate the significance of his behaviour. The lecture about PTSD from Colonel Goggin and the booklet of notes including the seventh page about PTSD had only been distributed to each of the officers going to the Lebanon. I am satisfied that the Plaintiff has proved that while he was in the Lebanon between November 1992 and April 1993 he was in the course of his work exposed to traumatic incidents as a result whereof he developed stress. I accept the evidence about his abnormal behaviour particularly the evidence of Corporal Sampson about the Plaintiff walking around at night keeping people awake and also going on incessantly both about the mutilated bodies and the video camera. His dozing off during the day and his talking with staring eyes, while he repeated his incessant topics, were all obvious symptoms of his stress. It is significant that the Defendants chose not to call any of the Plaintiff's fellow privates or ESST members other than Captain Power. It is clear that Sergeant Finbarr O'Reilly drew his depression to the attention of the platoon commander. The Plaintiff was employed by the Defendants as a member of the defence forces and as such the first named Defendant owed to the Plaintiff a duty to take reasonable care for the health and safety of the Plaintiff. In my view there was a negligent failure to take appropriate care for the health of the Plaintiff in that once he became subject to stress, as was likely to happen and eminently foreseeable in the dangerous and macabre situations in the Lebanon, the Defendants failed to spot the obvious manifestations of post traumatic stress or else negligently failed to recognise the significance of the symptoms and also negligently failed to obtain remedial therapy for the Plaintiff.

66. During the course of the trial the Defendants repeatedly made the case that the Plaintiff himself should have recognised his condition and sought medical help. This suggestion is refuted by the evidence which was given by Doctor O'Loughlin, Doctor McQuaid, Doctor Richard Booth and Lieutenant Colonel Goggin to the effect that an individual who is suffering from stress often tries to suppress this and is not aware of the fact that he is suffering from a medical condition. Soldiers would be particularly reticent in talking about or recognising a psychological problem in themselves. I accept the evidence given by the Plaintiff that he did not know that he was suffering from a medical condition. I have no doubt that the Plaintiff's officers should have recognised his condition of post traumatic stress and should have referred him for medical help.

67. Officers in the army have been aware of the symptoms of PTSD certainly since 1986 and definitely since Colonel Goggin has been giving his lecture on stress and distributing his booklet of notes. The behaviour of the Plaintiff as described in evidence by the search team was that the Plaintiff had become obsessive, would not stop talking about particular incidents, that he was suffering from sleep disturbance and that his billet had to be changed by reason of the fact that he was interfering with other men sleeping; also that when he talked incessantly about particular topics he had staring eyes. These are all symptoms of post traumatic stress and Colonel Goggin and Doctor O'Loughlin gave evidence that the Plaintiff should have been reported to his commanding officer and should have been referred to the medical corps. In this they were supported by Doctor McQuaid. When the symptoms were described to Colonel Quinn he also agreed that the manifestations should have been reported to his platoon commander who should have referred the Plaintiff to the doctor. Colonel Goggin also gave evidence that an individual who is suffering from stress might not recognise this himself and might suppress this as he would not wish to become embarrassed. He said that this was the reason why awareness training is so necessary to ensure that those in charge look out for such problems. The Defendants had actually published and distributed the booklet of notes warning of PTSD and the trauma of seeing or handling mutilated bodies. The Plaintiff had seen mutilated bodies and had shown symptoms of stress; despite this, he was not referred to the doctor or treated either in the Lebanon or on his return from the Lebanon, although he told Commandant Mannion of the incidents in which he had been involved and of the stress and anxiety from which he was suffering. The Defendants chose not to call Commandant Mannion. Doctor O'Loughlin gave evidence that the Plaintiff's symptoms should have been recognised as post traumatic stress both while he was in the Lebanon and on his return when he told his commanding officer that he was unwell and needed more leave because of the incidents in the Lebanon. There was clearly a failure in the duty of care by the Defendants in respect of the omission of their employees to refer the Plaintiff for treatment. Commandant O'Cleirigh said that when he returned to Ireland he compiled a report relating to the potential problems of PTSD for search teams. He said that when he prepared this report he had the Plaintiff and a number of others in mind. Unfortunately he did not give such a report to the Plaintiff's commanding officer which might have alerted him to the type of incidents to which the Plaintiff had been subjected in the course of his duty during search operations.

69. It is common case that the incident on 1st November, 1992 involved negligence on the part of the Defendants' employee in discharging the shot. Subsequently there was a negligent failure on the part of the Plaintiff's superiors to recognise his obvious symptoms of stress. His officers should have been well aware of what to watch out for in view of Colonel Goggin's lectures. Despite the report by Sergeant Finbarr O'Reilly there was a failure to enquire into the Plaintiff's behaviour although his peculiar behaviour was common knowledge to his colleagues and his Sergeants. The Plaintiff should have been but was not referred to the doctor. If he had been told to go to the doctor (and I do not accept that he was) his officer should have ensured that there was a follow up by enquiring from Doctor O'Malley as to the result of the referral and the seriousness of the Plaintiff's condition. If treatment had been afforded at an early stage then the evidence of Doctor McQuaid and Doctor O'Loughlin was quite clear, and was supported by Colonel Goggin and Doctor Booth, that the PTSD would have been avoided or reduced. I find that his stress would not have become a PTSD if it had not been for the negligent failure on the part of the defendants to recognise and remedy his symptoms of stress.

70. The Defendants as employer are under a duty to take reasonable care for the safety of their employees and must keep abreast with contemporary knowledge in the field of reduction in the effects of potential afflictions to which soldiers are inevitably exposed in the course of duty. The perils of PTSD in those subjected to stress have been well known to the Defendants for many years prior to 1992. From 1986 Colonel Goggin had been raising awareness of stress and PTSD in the army. All officers going on tours of duty to the Lebanon were lectured by Colonel Goggin on stress and awareness of the symptoms of PTSD and the need for treatment thereof. His excellent booklet of notes, including page 7 on PTSD, was given to each officer. Page 7 specifically warns of the peril from trauma associated with incidents involving threats to life and mutilated corpses and describes likely symptoms in crystal clear terms.

71. As is elementary the Plaintiff is not entitled to compensation because in his work in the Lebanon he had been exposed to stress or because he had contracted PTSD. He must prove, on the balance of probabilities, that his injury was caused by the fault of his employer. By the diligent dissemination of information about PTSD by Colonel Goggin the army was acting appropriately as a caring employer. However, the knowledge imparted by Colonel Goggin regrettably was ignored and his advice was negligently not acted upon by the Plaintiff's superiors both in the Lebanon and on his return to Dublin. The Plaintiff's strange and out of character behaviour, while he was based at Tibnin, and his manifest symptoms should have been noted and his obviously stressed condition brought to the attention of the medical officers. This failure to recognise and treat his symptoms was due to culpable negligence on the part of his superiors and resulted in his contracting chronic PTSD. On the medical evidence, I have concluded that the likelihood is that, if the Plaintiff had received counselling and therapy when he showed the clear signs of stress and incipient PTSD in early 1993, his condition would have been relieved and he would not have become subject to the long running and persistent PTSD which has so adversely affected him in his working, social and domestic life.

73. I accept the evidence and prognosis of Doctor McQuaid and Doctor O'Loughlin. The Plaintiff had an excellent work record before his injury and he has great support from his wife and family, so that despite his irritability and his change from a previously extrovert and joyful personality, I believe that he will probably manage to rehabilitate himself in time and obtain experience which will enable him to get back into a good job. With his skills as a bricklayer and his honest hardworking character I am sure that he will eventually obtain gainful employment. In the light of the evidence of Paula Smith and the medical evidence, it will take him some period of time to gain work experience and train himself and to find a suitable job. With the example and advice of the army social worker, Mick Lacey, who has obviously taken a friendly interest in him, it may be that he will manage to acquire computer skills, despite Paula Smith's reservations on his obtaining work in the computer line. He certainly has the training and physical capacity to work as a tradesman and if he can cope from a mental standpoint then he would be likely to earn higher wages than in the army.

79. According to Doctor O'Loughlin, whose prognosis I accept, the Plaintiff is still suffering from chronic and continuing PTSD. Even if he recovers somewhat he is vulnerable to relapse and the likelihood is a continuation of PTSD. The evidence of Doctor O'Loughlin and Paula Smith and other medical evidence makes me take the view that he will with difficulty manage to rehabilitate himself and gain work experience over a probable period of about three years from now. He has a serious loss of employability because of his psychiatric record and I think a sum of £10,000.00 should be allowed in respect of this. He also has chronic and continuing PTSD and is vulnerable to a recurrence of PTSD and to relapse even if he may seem to have recovered. I value this at £30,000.00 making a sum of £40,000.00 in respect of pain and suffering in the future.

80. Once the Plaintiff manages to gain work I believe that he will be earning as much as he earned in the army. Accordingly a sum should only be allowed to cover both his loss of earnings and his loss in respect of not having food and clothing perks for the next three years or so an appropriate sum for this is £20,000.00 which is much less than the amount suggested for future loss of earnings. The Plaintiff in future will have to pay on average £14.00 per week to his G.P./consultants. The multiplier for the rest of his life is 991.00 to be applied to this weekly expense to give the capital sum required now to compensate him for this future expense. This gives a figure of £13,874.00. Likewise with regard to the cost of medication he is likely to have to outlay £7.50 per week for the rest of his life with the similar multiplier of 991.00 giving a figure of £7,433.00.

82. Finally Counsel for the Plaintiff strongly criticised the conduct of the case by the Defendants. He made it clear that he was expressing no criticism of Counsel or Solicitor but rather of their clients. In particular he criticised the concentration on the topic of the making of the video. It had been made clear in the opening that there was no criticism of the making of the video for training purposes and that its significance for the material issues in this case was that the mode and timing of the making of the video had caused upset to the search team and had had an effect on the Plaintiff which became a manifestation of his PTSD. Certainly an inordinate length of time was spent on what turned out to be a peripheral issue in view of the consistent approach to the material issues of Plaintiff's Counsel.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McHugh v. Minister for Defence [1999] IEHC 91; [2001] 1 IR 424 (28th January, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/91.html Cite as: [1999] IEHC 91, [2001] 1 IR 424

High Court of Ireland Decisions

McHugh v. Minister for Defence [1999] IEHC 91; [2001] 1 IR 424 (28th January, 1999)