David McHugh (plaintiff) v The Minister for Defence, Ireland and the Attorney General (defendants).

Personal Injuries - Post traumatic stress disorder - Whether defendants negligent in failing to take care for the health of the plaintiff once he became subject to stress - Assessment of damages for present and future loss.

The High Court (before Mr Justice Budd); judgment delivered 28 January 1999.

THE plaintiff was not entitled to compensation simply because during his work as a soldier in the defence forces he was exposed to stress. To succeed in his claim, the plaintiff must prove that the defendants were negligent in that they failed to recognise and treat the obvious symptoms of post traumatic stress disorder despite the dissemination of information on this subject to the plaintiff's superiors.

Mr Justice Budd so held in finding that the defendants were negligent and in awarding substantial damages for present and future loss to the plaintiff.

Ronnie Robbins SC, Bruce Antoniotti SC and John Nolan BL for the plaintiff; Gerard Lee SC, Sean Ryan SC and Bernard McDonagh BL for the defendants.

Mr Justice Budd said that the plaintiff was enlisted as a soldier in the Defence Forces in July 1979. On 1 November 1992, while on his third tour of duty in the Lebanon, the plaintiff was exposed to a life-threatening incident involving an unexpected and negligent discharge of a gun by a sergeant who was standing beside him. The plaintiff, who believed that the bullet, that was fired, went directly over his head, suffered an immediate and severe reaction and was very distressed. Mr Justice Budd said that the plaintiff was involved in further distressing incidents in the Lebanon. In January 1993 while working with an engineer special search team (ESST) the plaintiff came upon a United Nations jeep which appeared to have blown up and to have bodies around it. The gory scene made an impression on the plaintiff and his colleagues. On 15 and 17 February 1993 the plaintiff and his ESST team 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 had any experience in dealing with mutilated bodies. It was common case that this was high-risk search and recovery work. On the latter two occasions, the ESST team was accompanied by an officer who recorded their work on video, which added to the plaintiff's distress.

Mr Justice Budd said that these incidents deeply affected the plaintiff and he manifested symptoms of post traumatic stress. He said that these symptoms were obvious and were the subject of comment among his fellow soldiers and NCOs and were brought to the attention of the platoon commander. The trial judge noted that knowledge about post traumatic stress disorder (PTSD) was available from the mid-1980s and that a lecture on stress was given and notes on PTSD by the army psychologist were distributed to officers going to the Lebanon from about 1990.

Mr Justice Budd said that on his return to Ireland in April 1993, the plaintiff went to see a commandant in Clancy Barracks about the incidents. He said that despite the plaintiff's obvious state of distress, the officer did not refer the plaintiff for medical help. In December 1993 the plaintiff told his army sergeant that he intended to leave the army and it was at this stage that he was referred to hospital where he came under the care of an army psychiatrist who diagnosed him as suffering from PTSD. Upon her advice, he left the army on 23 March 1997.

Mr Justice Budd said that it was important to emphasise that the plaintiff was not claiming damages because he was subjected to life-threatening experiences or to dangerous situations or the grisly dealings with mutilated corpses. These were happenings which are expected by Irish soldiers serving with UNIFIL in the Lebanon. Rather his claim was based upon the negligent failure of the defendants to recognise and treat the obvious symptoms of his PTSD. The plaintiff contended that if the manifestations of his stress had been treated by counselling in the Lebanon or within a short time of his return it would have been unlikely that his stress would have turned into chronic PTSD.

The trial judge said that the defendants conceded that the plaintiff suffered and suffers from post traumatic stress disorder, although there was some medical diversity as to the intensity of the condition and also in respect of the prognosis. He said that the defendants submitted that the plaintiff was the author of his own misfortune. It was suggested that it was his rifle which was discharged by the sergeant on 1 November 1992 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 defendants also contended that the plaintiff was the cause of his own problem in that he failed to report his disability while in the Lebanon on his return to Ireland and failed to seek medical attention at an early stage before his disability became more serious. Furthermore, the defendants submitted that the plaintiff did not exhibit signs or symptoms which would have alerted the defendants to the foreseeable risk he would get post traumatic stress disorder.

Mr Justice Budd dismissed the defendants' suggestion that it was the plaintiff's rifle that had been discharged on 1 November 1992, stating that it was quite clear that the plaintiff never believed that it was his gun that was discharged and therefore a suggestion of a guilt complex on his part was fallacious. He said that there was no doubt that the plaintiff was sensitised by the life-threatening incident of 1 November 1992 involving the negligent discharge of a rifle and that he was further traumatised in 1993 by the three operations involving gruesome sightings of bodies. He said that having regard to the evidence and to the literature on post traumatic stress disorder, a significant theme that appeared to underpin events that lead to such a condition is the threat, real or perceived to life. He said that in this context, the threat perceived by the plaintiff to his life on 1 November 1992 was significant.

Mr Justice Budd accepted the plaintiff's evidence that he did not know that he was suffering from a medical condition. He said that the defendant employers were under a duty to take reasonable care for the health and safety of their employees and to 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. He continued that the perils of PTSD in those subjected to stress were well known to the defendants for many years prior to 1992.

He highlighted the role of the army psychologist, Lieutenant Colonel Goggin, in developing a policy of raising awareness in the army of critical incidents and stress, particularly with regard to troops going overseas. He said that officers in the army were aware of PTSD since 1986 and certainly since 1990 or 1991 , when Colonel Goggin began distributing notes on PTSD and giving lectures on stress and awareness of the symptoms of PTSD.

The trial judge said that the plaintiff was not entitled to compensation simply because during his work in the Lebanon he was exposed to stress or because he contracted PTSD. To succeed in his claim the plaintiff had to prove that his injury was caused by the fault of his employer. By the diligent dissemination of information about PTSD by an army colonel the army was acting properly as a caring employer. However, the knowledge imparted by him 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. He said that the plaintiff manifested quite obvious signs of PTSD, which the plaintiff's officers, in particular the army commandant who he attended on his return from the Lebanon in April 1993, negligently failed to recognise and in respect of which they failed to obtain medical help. No justification was offered for the failure to refer the plaintiff for medical attention, which was obviously required.

Mr Justice Budd concluded that the failure of the defendants to recognise and treat the plaintiff's symptoms was due to the culpable negligence on the part of his superiors and resulted in his contracting chronic PTSD. If his superiors had made proper inquiry, the extent of the seriousness of the plaintiff's symptoms would have become apparent and his post traumatic stress disorder would have become apparent at an early age. This would have given an opportunity for remedial therapy, which would either have relieved the symptoms or else have greatly reduced them. The trial judge said he would not have suffered from long-lasting PTSD which has been resistant to therapy and rehabilitation and which had so adversely affected him in his working, social and domestic life.

Accordingly, Mr Justice Budd awarded the plaintiff £65,000 for pain and suffering to date, and £40,000 for pain and suffering in the future. Special damages including loss of past and future earnings were awarded in the sum of £113,900. The total award of damages was £218,900.00

Solicitors: Kent Carty (Dublin) for the plaintiff; Chief State Solicitor for the defendants.