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**sledger** · 8 December 2008, 18:32

Flood of claims feared if ex-soldier wins case

Flood of claims feared if ex-soldier wins case
Irish Independent
By Tom Brady Security Editor
Monday December 08 2008

A NEW wave of costly compensation claims is likely to be lodged against the Department of Defence if it loses a crucial appeal.

The Supreme Court appeal is against a High Court decision awarding over €300,000 in damages to a former soldier for post-traumatic stress arising from his experiences in Lebanon.

This was the first such case to have been lost by the department. The decision has sparked fears that it could open the floodgates to a fresh round of compensation demands in the wake of the Army deafness financial fiasco.

Army deafness cases resulted in a €287.6m bill for the taxpayers, including the claimants' legal costs of €99.9m.

The deafness controversy crippled defence budgets for several years and also badly damaged the public image of the Defence Forces.

The department has been vigorously defending post-traumatic stress claims and has scored a number of successes in the courts.

However, last July the High Court ruled in favour of former private, Victor Murtagh (42), a father of six, from Pearse Road, Ballymote, Co Sligo.

Mr Murtagh claimed in his action against the Minister for Defence that he did not receive any counselling or treatment from the Army for severe anxiety attacks and stress-related illness, sustained from his experiences in Lebanon in 1986/87.

The High Court heard during the case that he was a "broken man" when he returned from his first and only tour of duty there at the age of 21.

He was in Lebanon at a time where there was an atmosphere of huge hostility, with Unifil troops coming under regular fire.

On December 6, 1986, a fellow soldier and friend, Pte William O'Brien, was killed. Then on January 10, 1987, another colleague, Cpl Dermot McLaughlin, was shot dead by Israeli forces.

Mr Murtagh, who was discharged from the Army in 1998 on health grounds after 14 years service, also sought damages for deafness and was awarded another €2,650 as part of the overall award.

The minister denied the claims relating to post-traumatic stress but accepted he was entitled to the damages for hearing loss.

The compensation for post-traumatic stress came to €305,523, plus costs. After studying the judgment, an appeal was lodged on behalf of the department.

On Friday last week, the department was granted a stay on payment of the award, pending the outcome of the appeal.

**hptmurphy** · 9 December 2008, 23:38

123

sickening to see man making a profit from his fallen comrades..absolutely disgusting

**Steamy Window** · 10 December 2008, 08:43

This is not new; I refer readers to the case of McHugh v Minister for Defence which was around 8 years ago.

McHugh suffered from PTSD from 1992.
DF had been aware of the issue of PTSD before that date.
His comrades brought his problems to their platoon commander while they were in the Lebanon.
The platoon commander and higher ranks did not address their concerns.
Since 1990 officers going to the Lebanon had been given briefings on PTSD.
The DF, like every other employer, owes a duty of care to its soldiers. This duty must be reasonable.
The effects of PTSD can be minimised if spotted early enough.
Traumatic incidents like McHugh went through (he was in ESST clearing the aftermath of roadside bombs) obviously will have an effect on psychological health.
It was noticed that McHugh was suffering from mental health issues as a result of his experiences. He had been on 2 previous tours without suffering any psychological problems. He was not claiming that the Minister was at fault for his mental problems, but that the inability of his employer to act made them worse than they could have been.
The DF had been notified of his issues and failed to act.
Therefore, the Minister was liable.

**hedgehog** · 10 December 2008, 09:16

Originally posted by hptmurphy

sickening to see man making a profit from his fallen comrades..absolutely disgusting

He is a sick comrade

therefore we should stand by him

and wish him God's speed on his recovery

if he is ever found to be faking it

then we should hunt him down

but none of us here are Psychiatrists, Judges or the poor man himself

thereforewe should give him the benefit of doubt.

PTSD is a recognised illness- he still needs our help and support

not our alienation and condemnation.

I normally find Murph that I agree with your posts because you (like me) are a rock of sense

I don't agree with you this time.

but we are all entitled to our opinions (except Wilco out)

**Connaught Stranger** · 10 December 2008, 09:38

Can anybody confirm if this soldier was ever known as "Sid" Murtagh, as I recall a private, from Ballymote, Co. Sligo who eventually became a 28th Bn driver, stationed in Finner Camp in my time there, the other possibility is Victor might be a brother.

The main article also states incorrectly that Cpl Dermot McLaughlin from Sligo was shot, when he was in fact killed by a tank round fired into the U.N. Post at Atiri.

Dermot was a fine soldier and a guy I knew personally,

may he and Willie O'Brien + Rest In Peace +

Connaught Stranger

**DeV** · 10 December 2008, 15:27

Here here Steamy & hedgie

**clean it again** · 10 December 2008, 16:37

Folks

this PTSD, we all work in jobs that have issues/ actions that effect us
I blieve as a soldier you signed up for this, blood / guts / war etc

So you take it as i comes, fireman guards etc sign up but no issues there i think. But if i get up peoples noses here, I am sorry but the fact his he is a soldier, it is going to put him in places / issues that the the person on ther street does not see day to day.

you signed up for it, get paid take the money, take the pressure

I am sick on tired of people suing for no reason. what did he epect a handly number in the army. get over it

RIP to the fallen soldiers, may they rest in peace

**Turncoat** · 10 December 2008, 16:50

Well in fairness its not as if he made an illness up.

The british army evaluates everyone coming off tours, so it is a very real and very dangerous problem. This isnt like the deafness claims(though a lot of them were real too).

The fact is If he did have a problem, the army didnt help. Therefore he deserves every penny he got.
The compensation culture in Ireland has gone way too far, but you have to remember some people are genuinely psychologically scarred. There is much research done on this by several university psychology departments in the US and UK, I suggest reading these papers before dismissing PTSD.
I dont think people who werent there or dont know him should make judgements.

**paul g** · 10 December 2008, 16:59

I must disagree with those who say that the man doesn't deserve his money, military service is extremly stressful, and no matter how highly motivated you are, the stress can affect people. I once nearly got killed at work, and the stress affected me for a while, my employer sent me to a short course of councelling, and after about a month i was fine, didn't stop me from working, it cost virtually nothing, and of course i would find it impossible to sue, as they abided by their duty of care towards me. .

This has been recognised for nearly a hundred years, when the first world war produced "shell shocked" soldiers, many of whom were executed by court martial, when in fact the poor souls needed a bit of help, ( although officers like Wilfred Owen were sent for treatment) . PTSD and battle fatigue can be dealth with quite effectively, the man's discharge in 1998 would seem to support his claim, he did after all loose his job.

And lets face it, a lot of people who sued for deafness were genuine. Prolonged exposure to gunfire does damage your hearing, and those of us who look at the ARRSE board, will note that deafness is becoming an issue for soldiers serving in Afghanistan.

**Steamy Window** · 10 December 2008, 18:42

Originally posted by Steamy Window View Post

This is not new; I refer readers to the case of McHugh v Minister for Defence which was around 8 years ago.

McHugh suffered from PTSD from 1992.
DF had been aware of the issue of PTSD before that date.
His comrades brought his problems to their platoon commander while they were in the Lebanon.
The platoon commander and higher ranks did not address their concerns.
Since 1990 officers going to the Lebanon had been given briefings on PTSD.
The DF, like every other employer, owes a duty of care to its soldiers. This duty must be reasonable.
The effects of PTSD can be minimised if spotted early enough.
Traumatic incidents like McHugh went through (he was in ESST clearing the aftermath of roadside bombs) obviously will have an effect on psychological health.
It was noticed that McHugh was suffering from mental health issues as a result of his experiences. He had been on 2 previous tours without suffering any psychological problems. He was not claiming that the Minister was at fault for his mental problems, but that the inability of his employer to act made them worse than they could have been.
The DF had been notified of his issues and failed to act.
Therefore, the Minister was liable.

From Irish Law Times
(1999) 17 ILT 217: Article: Post Traumatic Stress Disorder: Military and Police. The Legacy of Hillsborough

The plaintiff was awarded damages as against the defendants for personal injury in the form of PTSD sustained by him during a tour of duty with UNIFIL forces in the Lebanon. It is to be noted at the onset—and the fact was stressed by Budd J—that the plaintiff was not claiming, nor would he have been entitled to, damages for personal injury sustained in his capacity as a member of the Irish defence forces on a professional assignment. Budd J stressed that, as was elementary, the plaintiff was not entitled to compensation because in his work in the Lebanon he had been exposed to stress or because he had developed PTSD, but rather that on the balance of probabilities, his injury was caused by the fault of his employer… Budd J continued:

These are happenings which are to be expected by Irish soldiers serving with UNIFIL in the Lebanon.

Between November 1992 and February 1993, the plaintiff, while on his third tour of duty in the Lebanon, was exposed to three situations, all of which had a cumulative effect on his psychiatric persona. The last of these incidents occurred while the plaintiff, as part of an Engineer Special Search Team (ESST) performing high risk search and recovery work, was involved in the recovery and removal of badly mutilated corpses. The plaintiff was unacquainted with the deceased. This, together with two previous experiences—one a perceived threat to his life which, having regard to the evidence proffered and to the literature on PTSD was, the judge was satisfied, a significant theme that appeared to underpin events that lead to such a condition—resulted in the plaintiff manifesting unmistakable symptoms of the disorder including sleep disturbance which caused him to walk about at night keeping his fellow soldiers awake. The plaintiff also engaged in incessant and obsessive recounting of the incidents while all the time maintaining a fixed stare, and was prone to bouts of weeping. In short, the plaintiff's behaviour was completely out of character with his original personality.

The plaintiff, having undergone psychiatric treatment which included hospitalisation, resigned his position as a member of the defence forces on medical advice in March 1997.

The defendants, as employers of the plaintiff, were found to be in breach of the duty of care owed by them to the plaintiff, in that, although adequate counselling and debriefing services were in place, the plaintiff's deteriorating psychiatric condition went either unnoticed or ignored by his superior officers until it was too late and his condition had developed into an acute form of PTSD which Budd J described as hitherto “resistant to therapy and remedy.”

He also found that the plaintiff's condition would more than likely have been relieved had he received counselling therapy in early 1993, neither would he have become subject to the “long running and persistent PTSD which has so adversely affected him in his working, social and domestic life.”

Accordingly, Budd J held that the plaintiff was entitled to recover damages as against his employers, by reason of the injury caused him through their negligence, and breach of the duty of care they owed him as his employers to take reasonable care not to expose him to unnecessary risks, be they physical or psychiatric.

The judge found that knowledge about PTSD was available from the mid-1980s, and from 1986 the resident Army psychologist had been raising awareness of stress and PTSD in the army, and all officers embarking on tours of duty to the Lebanon attended lectures on stress and awareness of the symptoms of PTSD and the need for treatment thereof. He also found that the army psychologist's “excellent book of notes” which described likely symptoms in crystal clear terms, had been given to each officer, and by the diligent dissemination of information about PTSD … the army was acting appropriately as a caring employer. Nonetheless, he concluded that:

… the knowledge imparted by Colonel Goggin [the army psychologist] 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. The failure to recognise and treat his symptoms was due to culpable negligence on the part of his superiors. [ At p. 45 of the judgment . ]

The judge also accepted the medical evidence which confirmed that the earlier the mental health intervention the more rapid and satisfactory the recovery is likely to be.

It was argued on behalf of the defendants that the plaintiff himself ought to have recognised his condition and sought medical help. This suggestion, Budd J stated, was refuted by [the expert medical evidence] 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. He pointed out that in the army culture of manliness, the plaintiff would not want to embarrass himself by revealing a weakness. He also accepted that the plaintiff himself did not appreciate the significance of his behaviour.

The defence also contended that the plaintiff's perceived threat to his life—the unexpected and negligent discharge of a rifle close beside him—was occasioned by his own rifle and that guilt had been the cause of his distress. On the evidence the judge did not accept that this was so. Budd J said:

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 their duty. 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 situation in the Lebanon, the defendants failed to spot the obvious manifestation 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.

Pending likely appeal to the Supreme Court of the McHugh decision, there is clearly a difference in approach between the Irish and English jurisdictions at present, regarding:

(i) reasonable foreseeability as being an adequate tool for the disposal of claims in respect of psychiatric injury;

(ii) the duty of care as owed by an employer to his employee to take reasonable steps not to cause him personal injury, be it physical or psychiatric.

And even had Budd J been called upon to consider their Lordships' decision in relation to employees in White , which he was not, the plaintiff in McHugh would have satisfied their Lordships' test of reasonable foreseeability (having been within the area of risk of physical injury). [ In that, although wartime conditions cannot be considered employer's negligence, it might be argued that leaving a bullet in the breach of a rifle was . ] Which means he would thereby also have satisfied the White criterion of being owed a duty of care by his employers not to cause him merely physical injury through negligence, and consequently also satisfying the Page v Smith criterion that a threat of physical injury which results in a psychiatric disorder activates the above duty of care owed by a defendant to a plaintiff, in this case his employee. [ See Page v Smith [1995] 2 All ER 736 . ]

**Steamy Window** · 10 December 2008, 18:58

Some more PTSD cases

Francis Corbett v Ireland, The Attorney General, The Minister For Defence
[2000/9168 P]
Court: High Court
Judge(s): Mr. Justice de Valera
Date: April 25, 2006

Neutral Citation Number [2007] IEHC 240 (unreported)

JUDGMENT

Francis Corbett the plaintiff joined the army on the 15th January, 1990; he was born on the 22nd April, 1972 and was, therefore, 17 years of age on joining.

As a member of the Defence Forces the plaintiff was eligible, on completion of his training, to volunteer for service abroad and as a volunteer he served tours of six months duration in the Lebanon on three separate occasions in 1991, 1993 and 1997. On the latter occasion the plaintiff served a second tour of duty in direct succession to his first and at the time had been promoted to Corporal.

It is in the very nature of military life that a soldier must expect to find himself, on occasion, in harms way and a witness to horrific and barbaric acts. The life of a soldier in Ireland may rarely include the risks of active service but Irish soldiers, members of the Permanent Defence Forces, all volunteers, for more than 40 years have served in highly dangerous situations in various, and varied troubled spots abroad with great distinction; reflecting great credit on their country. No Irish soldier is compelled to serve abroad; all who choose to do so are volunteers.

In this action the plaintiff complains of three major incidents which, he says, have given rise to a condition known as Post Traumatic Stress Disorder (PTSD) these incidents appear to be as follows.

Firstly: the explosion which killed and mutilated a member of the South Lebanese Army who was on a mine sweeping patrol in full view of the plaintiff. This occurred within two weeks of the commencement of the plaintiff's first tour of duty in the Lebanon in 1991.

Secondly: in what the plaintiff describes as an Israeli mine-sweeping operation, with 10 to 15 Israeli soldiers, a member of the patrol was to use his words, “blown to bits” about 50 meters from a lookout post the plaintiff was occupying. The explosion was so severe it blew him backwards and this occurred late in his first 1991 tour, sometime in August of that year.

The third incident involved a helicopter crash. A helicopter on manoeuvres had just landed at post 644 where the plaintiff was on duty and having taken off crashed some distance away, not as it subsequently transpired in direct view of post 644, killing all on board including an Irish sergeant not personally known to the plaintiff. This (the death of the sergeant) the plaintiff did not know until sometime after the crash.

I am satisfied, from the evidence, that the plaintiff by the time of the initiation of these proceedings (8th August, 2000) was suffering from a serious psychiatric condition which on the balance of probabilities is PTSD. This is the plaintiff's case and is, in fact, conceded by the defence.

I am also satisfied, on the balance of probabilities, that this has arisen as a result of the experiences he endured in his four tours of duty and specifically the two incidents in the 1991 tour and the single incident in the 1997 tour. I am satisfied that no incident relevant to these proceedings took place during the 1993 tour.

As I have already stated soldiers must be prepared to be involved in events of the kind experienced by the plaintiff and the army cannot be held responsible for these events. However I am satisfied that the army has a duty to its soldiers to ensure that, as far as possible the circumstances obtaining at a given time, that they, the soldiers, have the appropriate training and support to allow them to cope with these traumatic events.

In the 1991 incident the plaintiff, then a young Private, was affected by the sight of a Lebanese soldier being “blown to bits” as he watched. I am satisfied that the plaintiff's commanding officer responded appropriately on the basis of the information available to him at that time. The temporary removal of the plaintiff from duty was clearly humane and precautionary and I am not satisfied that Colonel McNamara had any reason to suspect anything more serious than the normal reaction from a young inexperienced soldier after a mere two weeks on his first tour of overseas duty. Had the plaintiff himself, as he had the clear opportunity to do, amplified his concern for example by referring to the self soiling episode then, perhaps, Colonel McNamara might have treated the matter differently but the plaintiff failed to do this.

The second incident again in the plaintiff's first, 1991, tour of duty occurred in August and again concerned a mine explosion which killed and mutilated Israeli soldiers. A comrade of the plaintiff was wounded in this action, by shrapnel, apparently not seriously. According to the plaintiff himself in the following weeks he had sleepless nights and wasn't eating properly but on his own evidence he tried to carry on as best he could and his evidence suggests that, to an observer, no abnormality could be detected — and the plaintiff made no complaints and sought no assistance from his NCOs and officers.

The plaintiff claims that he began drinking in the period between his first and second tour of duty and that he continued to have nightmares sweating and tensions. But again he sought no assistance for these and volunteered, apparently without any qualms, for a second tour with the 73rd Battalion.

Despite some confusion in the plaintiff's account no significant incident is alleged in the evidence during this tour but the plaintiff claims his nightmares and other symptoms continued. Again he does not appear to have sought any assistance though there is ample evidence that medical and other assistance was available if sought.

After returning in 1993 the plaintiff continued with his duties and in 1995 was downgraded, for two years, as a result of an ulcer.

By 1997 the plaintiff had recovered and was promoted to Corporal. This constituted a significant advancement in his career and suggests a commitment to the army and a desire to remain within its ranks inconsistent with his allegations of nervousness, anxiety and sleeplessness.

It was on the plaintiff's third tour that the helicopter crash occurred. The plaintiff's evidence about this is confused but it is clear that the description he gave to the psychiatrists who interviewed him, and particularly Dr. O'Connell, was exaggerated to a considerable extent though Dr. O'Connell could not have known this at the time. I am satisfied that the plaintiff did not see the helicopter crash (he was below in the post at the time) and he could not see the wreckage at night when the crash occurred or in daylight the next day. He did not see bodies or body parts and did not visit the scene until days afterwards. On the balance of probabilities all the plaintiff saw that night, after the crash occurred, was the glow caused by the burning wreckage.

I am also satisfied that the plaintiff knew of Critical Incident Stress Debriefing (CISD) by this time and I am satisfied that this was well known throughout the army and in particular that briefings were given to the 81st Battalion as stated by Lieutenant Colonel Buckley and Sergeant Major Lamb among others.

It has been submitted to me that the alleged failure of some of the plaintiffs fellow soldiers to report their purported concerns about the plaintiff's condition to superiors should not be entertained because this aspect of the plaintiff's case was not pleaded and therefore cross-examination of the topic did not take place. Having heard the evidence I am not satisfied that these witnesses were reliable on this point. In view of the confusion and contradictions in the plaintiff's recounting of events his evidence cannot be relied upon and I am satisfied that the witnesses who “could not remember” the CISD briefings and information or who denied their existence are similarly unreliable.

Those witnesses who claimed to have been concerned about the plaintiff but who did not report their concerns to their superiors cannot have been as worried at the time of the occurrences as they now believe they were. Their evidence contrasts with the evidence from Sergeant Egan, Captain Flannery, Colonel Buckley, Captain Taylor as well as Colonel McNamara all of whose evidence I accept and, where it conflicts with other evidence, prefer.

I also note, and attach importance to, the evidence of Commandant Dr. Curran who carried out an examination of the plaintiff at the end of his tour with the 82nd Battalion and found him to be psychologically fit in addition to his physical condition which was also satisfactory.

I am satisfied on the evidence in this case that the military authorities were, prior to the plaintiffs enlistment, aware of the significance of stress and stress related complaints as a factor in soldiers welfare. I am also satisfied that in the period 1990–1998 that stress and its identification in treatment was recognised as an important factor and that the army considered it important to stay abreast of developments internationally.

I do not accept the plaintiff's contention that his treatment after the first mine explosion in 1991, the second mine explosion again in 1991 or the helicopter crash in 1997 was in the circumstances that obtained at the time inappropriate or deficient. Also I do not accept that the army could have identified any aspect of the plaintiff's condition at that time which could have lead to psychiatric or psychological problems it the future and I am satisfied that when he returned from Lebanon in April, 1998, he, the plaintiff, showed no signs of the psychiatric condition first identified in or about August of 1998.

In the circumstances the plaintiff's claim must fail.

**Steamy Window** · 10 December 2008, 18:58

KNOWLES v MINISTER FOR DEFENCE;
(687P/1997), High Court, O'Donovan J., February 22, 2002. ;

Psychiatric harm — standard of care — duty of army to identify and treat psychological illness of member — manifestation of illness
The plaintiff claimed that while on duty with the Defence Forces in the Lebanon in 1978 he had experienced events that gave rise to severe psychological and psychiatric problems, which had progressed to chronic post traumatic stress disorder from which he still suffered. Shortly after arrival in June 1978 the plaintiff began to complain of anxiety, homesickness and enuresis, and spent some days in a regional aid post. The medical record of that period stated that he was suffering from “reactive depression” vis-à-vis absence from home. He requested to be allowed return home because he was worried about his mother, then reconsidered and requested and got a transfer to another company. He had been medically certified as being fit for discharge from the first aid post. In October 1978 he was medically certified as fit for repatriation. In June 1979, prior to his discharge from the forces, he was again medically certified as well and the record specifically stated that he had recovered from the depression. The plaintiff contended that the army had negligently failed to identify and treat his psychological problems as a result of which, with the passage of time, his psychological health had deteriorated to the extent that he was now so damaged that he was, inter alia , incapable of earning a living or enjoying life to any significant degree.

Held , dismissing the plaintiff's claim, that during the period in the Lebanon and from his return home to his discharge from the army, the plaintiff had not manifested signs of his alleged psychological or psychiatric problems to such a degree that they ought to have been recognised as such by the Army authorities and the plaintiff afforded appropriate treatment by them. The contemporaneous medical records of three army physicians made during the relevant period did not disclose any such problems and this evidence was to be preferred to that of the plaintiff, who presented as a very unreliable witness due to his severe psychological ill health, and that of three of his former colleagues, reliant on their recollection of the plaintiff's presentation and behaviour over 20 years later. Furthermore the expert evidence of a psychiatrist was that the plaintiff had not suffered from reactive depression but rather loneliness at that time.

**In my opinion** · 10 December 2008, 19:39

Originally posted by Connaught Stranger View Post

Can anybody confirm if this soldier was ever known as "Sid" Murtagh, as I recall a private, from Ballymote, Co. Sligo who eventually became a 28th Bn driver, stationed in Finner Camp in my time there, the other possibility is Victor might be a brother.

The main article also states incorrectly that Cpl Dermot McLaughlin from Sligo was shot, when he was in fact killed by a tank round fired into the U.N. Post at Atiri.

Dermot was a fine soldier and a guy I knew personally,

may he and Willie O'Brien + Rest In Peace +

Connaught Stranger

The Murtagh Family have a long association with the defence forces. Gerry Murtagh was in Congo with 32Bn ref p182 The Fighting Irish in the Congo by Raymond Smith. The late Gerry Murtagh was a Sgt in the old 19Bn. He has/had a son in 28th Bn and also a nephew I think, one was barman in NCOs mess other was in Officers mess in finner. Two hard workers when that was my stomping ground.

If a person really suffers PTS then they need to be looked after. A court decided the state was liable therefore if we have any respect for law or democracy the decision of the judicary must be respected.

My tuppence hapenny anyway!!

**colonel decker** · 10 December 2008, 20:11

I never begrudge anyone anything

Announcement

Former soldier awarded €300k for PTSD

Former soldier awarded €300k for PTSD

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