‘Shell Shock’ -Soldiers suing the state

Published on 12 August 2020 at 00:26

Documents prepared for the new Minister of Defence Simon Coveney have revealed a series of legal actions against the state by at least seven soldiers following an incident in Syria in 2013. The Irish UN peacekeepers were ambushed by Syrian militias whilst on patrol in armoured personnel carriers. The actions are reputedly over a mixture of physical and psychological injuries and may be heard in the High Court this year.

Claims of psychological injuries or ‘nervous shock’ are relatively new but have developed as our understating of PTSD has. While still a notoriously difficult claim to succeed with, Ireland is one of the most receptive jurisdictions to nervous shock claims and one of the most generous in rewarding damages. Unsurprisingly the military has proved fertile ground for claims of psychological damage induced by trauma, especially in regard Ireland’s involvement in international peacekeeping. Close to 70,000 such tours of duty have been completed over the past 62 years by members of the Defence Forces, many notably in Syria and Lebanon where troops have been subject to intense stress and trauma. The effects of combat on soldiers have been known for centuries in many guises from “soldier’s heart” and “shell shock” to “battle fatigue” and PTSD. However, it has never and to an extent is still not fully understood.

The ability of soldiers to sue over damages brought about by negligence in the military is by no means a guarantee either. One need look no further than the seminal 'Feres' case where the US Supreme Court ruled that service members could not avail of most tort actions, giving the military a “widespread immunity”. This has been rejected by Irish courts as a harsh approach and nowhere near the state of the law in Ireland. In fact, Irish courts have firmly rejected arguments that Article 28.3 of the Constitution which provides for the violation of constitutional rights during “times of war” applies to service on a peacekeeping mission in Lebanon.  Courts have ensured that soldiers are entitled to full constitutional rights and protections.

Finlay CJ established a lot of the relevant precedents in this area in Ryan v Ireland: that soldiers who volunteered for service may assume risk of injury from combat, but this did not encompass negligence on the part of the Defence Forces. He also distinguished two grades of culpability: one for those making decisions in the “agony of the moment” and another for decisions and actions under no such pressure. Finally, he established that precautions against risks merely had to be “reasonable” to satisfy a duty of care to personnel. The fact that a much safer but unfeasible alternative exists does not equate negligence. For example, everyone acknowledges that reinforced bunkers are more effective protection than regular billets against mortar fire however the military cannot be expected to built bunkers to house every single soldier in every deployment.

These guidelines would come to bear in Clarke v Minister for Defence where an Irish soldier on tour in Lebanon in 1999 sued over physical injuries and PTSD sustained during mortar fire. His claim rested on a failure to sound appropriate alarms, poor defences and a failure to anticipate and treat his psychological trauma. Irvine J ruled out the claims of negligence during the incident as it became clear that the defence forces had acted reasonably and satisfied their duty of care to the plaintiff. The claim for damages arising from PTSD was also dismissed. While methods employed by the defence forces to mitigate the risk of PTSD have since been proven ineffective, they were in line with good practice at the time.  The plaintiff’s wishes to pay respects to a comrade who had died in the incident and visit another injured were respected and he was offered holiday time to recuperate which he refused. He also failed to disclose details of suicidal thoughts to his appointed psychiatrist and his silence of his trauma led to his overlooking by an extensive system to identify potential PTSD sufferers. 

A notable case examined by Irvine J was Walsh v Sercurior, which did not involve the military. In Walsh, the plaintiff, an employee of a security firm was ambushed by armed robbers whilst transporting money via van. The security company had been negligent in allowing the route of the van to become predictable and the court ruled that Finlay CJ’s reasonable precaution rule did not apply to such a high-risk activity where every precaution should be taken. The current suit involving an armoured convoy echoes these events and the high visibility of UN forces arguably makes the venture even more dangerous.

A recent high-profile case, one which is very instructive on the current actions saw Private Victor Murtagh awarded €150,000 following the negligence of the Defence Forces in the prevention and treatment of his PTSD. This award is notable as Murtagh, while serving in Lebanon had not actually suffered physical injury nor a single traumatic event but had sustained mental trauma cumulatively from stress on his tour. Budd J ruled in Murtagh’s favour and awarded him a handsome sum in damages for a variety of effects of his PTSD, psychological suffering, separation from wife and family, loss of vocation and personality change.

The Irish defence forces have not exactly had a stellar record in regards psychological support amid reports of positions lying vacant for nearly a decade, unattractive pay and referral of personnel to private psychiatrists. In the light of this situation it does not become difficult to envisage improper oversight and treatment of troops at risk of developing PTSD. Ultimately, the strength of the current litigation is impossible to determine until the facts are actually known. However, judging from Ireland’s relative generosity in this area compared to other jurisdictions and the endemic failures to provide adequate psychiatric support, the soldiers involved have reason for hope.

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