Neutral Citation No:  IEHC 31
THE HIGH COURT
IRELAND, THE ATTORNEY GENERAL AND THE MINISTER FOR DEFENCE
Judgment delivered the 19th day of October, 1989 by Barr J.
The essential facts of this case are not in dispute and are as follows:-
The plaintiff resides in Mitchelstown, County Cork. He is single and was born on 17th September, 1957. He joined the army on 8th November, 1974 when 17 years of age, having previously served in the F.C.A. He was devoted to military affairs and intended making the army his career for life. It is accepted by the defendants that he was an excellent soldier and that prior to sustaining the injuries which are the subject-matter of this action he was regarded by his superiors as having a bright future in the Defence Forces with good prospects of at least attaining the rank of sergeant as his father had done before him. In 1979 he was a three star trooper in the cavalry corp and had won an award as the best soldier in his platoon when passing out of initial training.
In 1978 the plaintiff volunteered for service with the Irish battalion which was part of the United Nations peace-keeping force in the Lebanon (UNIFIL). He arrived in Lebanon in November, 1978 and was posted to a camp near the village of Naquora about four miles from the Israeli border. There were also French and Norwegian units stationed at the camp. The former were primarily engaged in engineering activities and the latter in maintaining a heliport for four helicopters and a base hospital. The U.N. force had been dispatched to southern Lebanon early in 1978. Numerous military posts were set up at strategic points in the mountains of that area and the force headquarters was situate at the Naquora camp.
South Lebanon was at that time a de facto buffer zone between Israel and hostile Arab forces to the north. It was to a large extent under the control of an irregular military force known as the Christian Militia (CM) under the command of a Major Haddad. The CM were closely associated with and were supplied by the Israeli army. They were heavily armed and their weaponry included tanks, artillery, mortars and machine guns. It was a volatile force which was lacking in discipline and its members resented the presence of U.N. troops in what they regarded as their territory. Prior to 18th April, 1979 there had been numerous incidents of armed attacks by the militia on various posts, some of which had resulted in the death and injury of U.N. soldiers. From time to time such posts were cut off by CM road-blocks. When incidents occurred it was usual for a senior U.N. officer to contact an Israeli army liaison officer who was stationed on the border near Naquora and his good offices were used in an effort to diffuse the situation and to sort out with Major Haddad whatever problem had given rise to the attack. This usually resulted in a cease-fire and a reduction in tension for the time being. Occasionally the U.N. negotiated directly with Major Haddad. The situation of the U.N. force in the Lebanon is a particularly difficult one for three reasons. First, because their orders were and are never to initiate military action and to resort to weapons only in self defence. Secondly, they were much less heavily armed than the CM and were greatly outnumbered by that force. Thirdly, they were and are a peace-keeping and not an occupation force. It is regarded as imperative that at all times they should be seen to behave strictly as peace-keepers. One consequence of this was that as a matter of deliberate policy the headquarters' camp was not fortified. In fact, having the sea on one side and being otherwise dominated by high ground, the camp was in military terms indefensible and, having regard to the weaponry at the disposal of the CM and their superior numbers, the camp was at their mercy if they chose to mount a full-scale attack on the base. In the light of what transpired these factors are of some considerable importance.
In April, 1979 there was one company of Irish troops stationed at Naquora camp. They were primarily engaged in administrative and security duties. They played an important role in guarding the base. A main road runs along the landward side of the camp and there are several entry points from the road, all of which were protected by sandbagged sentry posts. Save for those on guard duty, the Irish troops were billeted in an area called Camp Tara which was close to the sea and a substantial distance from the main road.
The procedure as to guard duty was that a platoon of troops served in that capacity for a period of 14 days. Individual soldiers were allocated to particular entry points. Each was on duty for four hours and off duty for eight hours on a continuous basis during the cycle of two weeks. When off watch they remained on stand-by in the event of an emergency. They were billeted in portacabins which were situated side by side in a line along the main road, the nearest being about ten metres from an entry gate and guard post which I am satisfied contained a machine gun at all material times. The portacabins were made of plywood and were not fortified in any way. At night those on guard duty who were on stand-by slept in these billets, having deposited their weapons and ammunition in a permanently manned radio post which was housed in a similar building a short distance away.
The background to the events which took place on 18th April, 1979 may be summarised as follows:
In the preceding month a road-block manned by French troops was set up near the camp. They would not allow armed members of the CM to pass through. This caused much resentment and resulted in an incident on 29th March when one French soldier was killed and two others were injured by the CM in the French area of the camp. Tension on both sides built up steadily from that date. From 11th April there was a substantial escalation in the movement of CM troops and guns on the high ground which overlooks the camp. The situation was then exacerbated by news which would have reached Major Haddad and the Israeli army on or about 14th April that there was a plan afoot to send Lebanese army units south of the Litani river to join forces with UNIFIL and take control of south Lebanon. This intention was bitterly resented by the CM and on 15th April Major Haddad threatened to destroy all the helicopters at Naquora. He also insisted that from then all helicopter movements must be notified to him and to the Israeli army. From 13th to 19th April the camp was cut off from the north by the CM.
On 18th April another incident occurred which appears to have enraged the CM and seems to have been an important factor in causing them to embark on a major attack on the camp on 18th April with mortars, tanks, machine guns and anti-personnel bombs as well as small arms fire. The events of the day were well described by Desmond Keegan, now operations manager with a security firm but then a squadron sergeant in the cavalry stationed in the Lebanon who had 21 years service in the army. He was attached to one of the posts in the mountains, but with two comrades he came down to the Naquora camp a few days prior to 18th April. They were prevented from returning to their unit by the CM road-block which was set up on 13th April. Sergeant Keegan described the state of tension at headquarters and the build-up of CM troops and equipment in the area, including Sherman tanks.
On the morning of 18th April a helicopter was fired on by machine gun and damaged as it landed at the heliport. Soon afterwards three armed militia men approached the camp laying a cable of wire along the main road in the direction of the heliport. At or near an Irish sentry post they were fired on and one was killed. It is likely to have been perceived by the CM that the Irish were responsible, though in fact that does not appear to have been the case. The remaining two militia men were taken into custody, but soon afterwards were released and were allowed to carry their dead comrade back to the village. It was well known to all in the camp that the CM was likely to seek retribution for the death of their soldier and so tension mounted still higher. Sergeant Keegan and his two comrades volunteered to take over an anti-tank gun and they set it up close to the machine gun post beside the portacabins where the Irish troops on guard duty were billeted.
Accordingly, it is probable that the CM would have become aware during the day that in that immediate area there was a machine gun and an anti-tank gun. Some minutes after the body had been taken back to the village a grenade was fired by grenade launcher and landed some yards from the machine gun post beside the billets occupied by off watch Irish sentries. At that stage Sergeant Keegan and his crew removed the anti-tank gun to a secondary position nearby. Sergeant Keegan believed that major hostilities were imminent.
The plaintiff was on guard duty that day and at night when off watch he was one of five soldiers billeted in the portacabin beside the road which was nearest to the entry gate and sentry post a few yards away. He came on duty before the attack on the helicopter. He was on guard duty outside the main gate which was about two hundred yards from his billet. It was a sandbagged position and he was on duty with Corporal O'Brien. He had noticed on leaving his billet that there were 40 or 50 CM on the high ground across the road from the camp. He saw that they were armed with rifles, machine guns and mortars. They were facing down in the direction of the camp and seemed to be digging in and getting into firing positions. At about 9.30 or 10 a.m. the plaintiff saw three militia men with rifles over their shoulders come down the road from the village rolling out a cable of wire. They passed the main gate and continued towards the heliport. They were halted by an Irish sentry at the next post a short distance down the road.
Then one of the three men was shot and the other two were taken into custody for a short time as already described. After four hours duty the plaintiff returned to the guard compound and at 6 p.m. he went back on duty again at the main gate for a further four hours. At 10 p.m. he returned to his billet and went to bed. Soon afterwards three mortar shells were fired overhead and landed in the sea behind where he was. All members of the guard who were off watch immediately got up, collected their weapons and took cover at a natural fall in the ground nearby.
The officer in overall command at the camp was a Norwegian General called Vadsett. After about half an hour, no further firing having occurred, he declared an "All Clear" and directed that normal guard duties should be resumed. Soon afterwards the plaintiff and his fellow guards who were off watch were instructed to return to their billets. He did so and went back to bed.
Although evidence was given on behalf of the defendants about the usual procedure which was followed when incidents involving the CM occurred i.e., that negotiations for a cease-fire would take place either directly with Major Haddad or through the Israeli army liaison officer, there was no evidence that such negotiations took place on the occasion in question or whether any assurance had been received from or on behalf of the CM before General Vadsett declared an "All Clear". Furthermore, no records, either Irish or UNIFIL, regarding the events which happened at Naquora Camp on 18th/19th April, 1979 were produced at the trial.
Some days prior to 18th April two Damascus shelters were acquired and erected for the benefit of Irish troops at Camp Tara. These are large metal shelters which were also protected by sandbags. They each were capable of holding 30 or 40 troops and offered reasonably good protection against the sort of attack which was subsequently mounted by the CM. The French unit, unlike their Irish counterparts, had trenches dug inside their boundary fence and there were dugouts or Damascus shelters for all French troops. In the Irish guard compound beside the main road the billets were not sandbagged and there were no fortifications or protection for troops whatever except for sandbags protecting the actual guard posts. When the "all clear" was given Sergeant Keegan refused to return to the plaintiff's billet which he regarded as very vulnerable in the event of a further attack by the CM which in his opinion remained likely having regard to the killing of the militia man.
Soon after midnight the plaintiff was awoken by the sound of heavy fire from machine guns and also shelling by mortars and the explosion of anti-personnel bombs fired by bazukas. He sat up in bed with his feet on the floor and immediately was struck by shrapnel in both legs which had passed through the plywood wall of the building. At or about the same time a mortar shell exploded on striking the roof of the billet and blew a large hole in it. It is unlikely that that shell was the cause of the plaintiff's injuries as such shells explode upwards and outwards on contact. It was found after the attack that in addition to the hole in the roof, there were also signs of damage to the wooden walls of the plaintiff's portacabin. In course of the attack all four helicopters were destroyed and numerous buildings in various parts of the camp were damaged. There were a number of other casualties in addition to the plaintiff.
This action was originally tried by Mr. Justice Keane.
He dismissed the plaintiff's claim on certain grounds. However, he refused to do so on other grounds put forward on behalf of the defendants. Both parties appealed to the Supreme Court and its reserved judgment was delivered on 16th February, 1989 by Finlay C.J. The plaintiff's appeal against the withdrawal of the case from the jury was allowed; the defendants' cross-appeal was disallowed and a new trial of all issues was directed. In course of his judgment the Chief Justice laid down, inter alia, certain principles as to the duty of care to a soldier in circumstances such as those in which the plaintiff was on the date of his injury. The following passage occurs at page 13 et seq of the unreported judgment
" Prima facie evidence of negligence
Having concluded that the plaintiff's superior officers (which must, of course, include all persons with authority over him) owed a duty of care to him, it is necessary before considering the detailed facts of this case to consider the general nature and, to an extent, the parameters of that duty. In the broadest terms the duty can be stated to be to take such care for the safety of the plaintiff as is reasonable in all the circumstances of their relationship and the activity in which they were engaged. Quite clearly, those circumstances in this case are unusual for they are the circumstances of military service in which the carrying out of the task allotted to the forces concerned could involve an unavoidable risk of death or serious injury. In such situations consideration of standards of care drawn from the experience of the work place may be of little assistance ........In the execution of military service exposing a soldier to such risk may often be justified by the nature of the task committed to the forces concerned. Furthermore, there can, in relation to armed conflict, be many situations where those in authority must make swift decisions in effect in the agony of the moment. A mere proof of error in such decisions would not of itself establish negligence. Importance may be attached, I am satisfied, in regard to alleged negligence in a military situation to the question as to whether the role of the soldier at the time of the alleged negligence is one of attack or defence, or, to put the matter in another way, whether he is engaged actively in armed operations or is only passively engaged in them. Where, as occurred in this case, the plaintiff was, while on guard duty, acting in a defensive role and was in effect standing by, I am satisfied that his commanding officer owed to him a duty to take such precautions as were reasonable and practical, having regard to the functions which as a member of the guard the plaintiff was obliged to perform to try and reduce the risk of his being wounded or killed. If, it seems to me, the plaintiff has established as a prima facie matter that one or
more such precautions falling within that category were ommitted at a time when the commanding officer concerned had time and opportunity to consider the proper protection of the plaintiff he would have established negligence."
The Chief Justice then went on to consider the facts as they had emerged at the first trial and he concluded that there was a case to go to the jury of breach of the standard of care as outlined in his judgment.
In short, I have to consider whether in the light of the facts detailed herein, the plaintiff's superiors failed in their duty in all the circumstances to take reasonable care for his safety by directing him to return to his billet after the "all clear" and the order to stand down the reserved defence troops had been given.
In the particular circumstances of this case it seems to me that it is not necessary to review the conduct of General Vadsett, the overall commander, in declaring an "all clear" sometime after the abortive mortar attack at 2200 hours. As already pointed out there was no evidence adduced at the trial, either directly or by way of official contemporary records, to throw any light on whether or not a "cease-fire" had been negotiated with the CM force before it was ordered that the supplementary defence troops were to be stood down. It seems likely that the plaintiff's company commander and/or platoon commander would not have been privy to negotiations (if any) which may have been conducted by General Vadsett or one of his staff officers with the Israeli liaison officer or Major Haddad. However, as the General had declared an "all clear", it seems to me that they were entitled to assume that he would not have done so unless a "cease-fire" had been arranged. In the light of that assumption were the plaintiff's superior officers entitled to assume that after the "all clear" the camp was to return to complete normality as though the entire episode was at an end? I am satisfied that General Vadsett's order indicated only, at most, that he had reason to believe that the CM attack on the camp had been discontinued and that, accordingly, it was no longer necessary, at least for the time being, that extra security troops should remain on duty and that they were to be stood down. His order did not imply that there would be no further attack that night. On the contrary, all experienced U.N. personnel at Naquora were well aware that
(i) Having regard to the high degree of tension between both sides for several days which had been greatly exacerbated by the shooting of the militia man that morning;
(ii) that the CM had not yet exacted retribution or obtained compensation for the death of their soldier and
(iii) that as the CM was a volatile force which lacked proper military discipline there were reasonable grounds for apprehending that at least some militia men might not obey a cease-fire order if they got one.
In addition to the foregoing, the Irish company and platoon commanders ought to have been aware that, as the militia man who was shot at or near an Irish check point having being stopped by Irish soldiers, there was an added risk that an attack by way of retribution was likely to be directed at Irish troops. In that regard the unarmed plaintiff and his comrades in their unprotected portacabin closest to and only yards from the CM was the softest possible target and in my view this ought to have been apparent to them. I am satisfied that the members of the guard platoon who were on stand-by ought not to have been sent back to their billets in the guard compound close to the main road. In particular, no one should have been permitted to occupy the plaintiff's billet that night as it was the one most at risk being beside a machine gun post which was a likely initial target in the event of a renewed attack by the CM. In coming to the conclusion that the plaintiff's superior officers were negligent in causing or permitting him to return to his normal billet after the "all clear", I have also taken into account that the decision to send the guards on stand-by back to their usual billets in the compound was not taken in the agony of the moment or while an attack was in progress. It was a decision taken after hostilities had ceased, at least for the time being, when there was sufficient opportunity to consider its implications in full.
I am also satisfied that the defendants were negligent in not having the plaintiff's billet in the guard compound protected by sandbags on the side of it exposed to the main road. As and from the time when Major Haddad had threatened to destroy the U.N. helicopters and it was seen that his troops were digging in with heavy arms on the hill which dominated the camp, there appears to have been good reason to believe that a major attack might be launched against the base. In that event the portacabins in the guard compound - particularly those along the main road and adjacent to a machine gun post, should have been given some protection.
It was also argued that additional Damascus shelters should have been provided for the use of the Irish troops. However, the evidence established that the potential escalation of violence had been anticipated and that two such shelters had been erected within days before the attack. It must be borne in mind that prior to the shooting of French soliders by the CM on 29th March, the camp had been subjected only to occasional random shots from Naquora village. I am satisfied that Colonel De Burca's evidence establishes that insofar as the provision of bunkers or shelters is concerned, reasonable steps were taken to provide such protection as soon as it became apparent that the camp might be subjected to a substantial military assault.
It was argued on behalf of the defendants that, having regard to the nature and severity of the attack in course of which the plaintiff was injured, he would have been at serious risk of personal injury or death if he had remained in the defile where he had taken cover after the shelling at 2200 hours or if he had been sent to his regular billet at Camp Tara. That is true, but in my view the risk of injury or death to which he was subjected was substantially greater in the roadside portacabin to which he was sent than it would have been in any other part of the camp.
The plaintiff sustained serious injuries to both legs caused by bullets and/or shrapnel. Corporal Douglas tied two laces around each of the plaintiff's thighs to stop bleeding. At first Trooper Ryan could feel nothing then he felt holes in his legs and blood running out of them. His right calf was open and he could see the bone. He also could see the bone of his right ankle and all of his left foot was completely open. All in the billet were lying flat on the floor as very heavy firing continued for about a quarter of an hour. Then there was a lull in the shooting which enabled Corporal Douglas and Private Finnegan to drag the plaintiff out of the portacabin and back towards the sea. As this was going on they found themselves under fire but had some protection in the slope of the ground. They joined fifteen or twenty other men and the plaintiff's wounds were bandaged. He remained where he was for some time and was then carried up to the Norwegian hospital by Private Waters. An emergency operation was carried out and he was given a spinal injection. It was necessary to suspend the operation while in progress as the hospital came under attack. Thereafter the plaintiff has no recollection of what happened in the next two days. Five Irish troops were injured in the attack. He spent a week in the base hospital and was then moved by helicopter to Israel and flown to Dublin. He was detained first in St. Bricken's Hospital and then at the Regional Hospital in Cork. His legs were heavily bandaged like a mummy and he was on a drip for a long time. He had pain like hot lumps of wire in his legs and he received injections in that regard from time to time. He underwent a number of operations in which skin was grafted onto the injured portions of his legs which had been taken from his thighs and elsewhere. On 10th May 1979 the plaintiff was transferred from the Regional Hospital to St. Mary's Hospital, Cork. Both legs where then in full length plaster casts. He had difficulty in sleeping and had nightmares about the night he was injured. The plaster was removed after three weeks and he remained on in hospital for a further six or seven weeks. He started to walk with the aid of a frame, but he could not go very far as his legs used to swell up. The pain in his left foot was very severe. He had_ lost three and a half stone in weight and he was very depressed about his condition and his future. He was anxious to go home and was allowed to do so. His injuries required fresh dressings every day. He was in a wheelchair as he found that he was unable to use crutches. The plaintiff was under the care of Mr. Condon, plastic surgeon, and he saw him every three days for the first eight weeks after his discharge from hospital and then regularly but less frequently over the following two years. The plaintiff found that the dressing of his wounds was particularly unpleasant. His legs were disfigured to such an extent that he would not look at them. By degrees he became more mobile. He was able to take up swimming again though embarrassed by the appearance of his legs.
The end result is that both the plaintiff's legs have extensive scars and are seriously disfigured. He can walk for about a mile and then the left foot starts swelling up. It is very tender. The right ankle is weak. The plaintiff cannot wear normal shoes but only soft broad shoes. He will never be fit for a job which entails heavy manual work or a lot of walking about or standing.
In January, 1980 the plaintiff returned to the army and was given an office job in Fermoy Barricks as a pay clerk. In August, 1980 his legs were X-rayed again and more shrapnel was found. In September of that year the plaintiff's six year enlistment period was due to expire and he was told by the medical officer, Captain McCarthy, that he could not stay on in the army for another term. He was discharged from the service in November, 1981. He thought that he would be allowed to renew his period of service and would be kept on in the office. He felt very badly about having to leave the army, particularly as he had always lived in barricks and he did not wish to be cut off from his comrades.
The plaintiff was obliged to return to hospital in January, 1982 for a period-of six weeks and further shrapnel was removed from his legs. He tried for jobs but without success. There is a substantial rate of unemployment in Mitchelstown. He applied to the bacon factory there but without success. Later he went to London and applied for jobs there, including the Royal Tara Hotel but they would not take him on because of his injuries. He returned to Mitchelstown. In 1986 a Social Employment Scheme was set up there and he succeeded in obtaining a job as a caretaker/gardener in a convent in May of that year. He was employed for four hours a day sweeping and cleaning up. He found that it suited him because the work was not too heavy and it did not last too long each day. SES jobs are for one year only and it came to an end in May, 1987. However, the nuns kept him on for a further two months and paid him themselves. Since then the plaintiff has not had any employment other than occasional odd jobs for a day or two. He can drive but not for long periods as his legs get sore. He still misses the army. Two comrades who were junior to him are now sergeants and others are corporals. He had intended taking an NCO's course after his return from the Lebanon but for his injuries. He finds that his legs are painful in cold weather. It is awkward to run and he can only swim now once a fortnight. He does not socialise or go out much which is very different from what his life was before the injuries. He said of his social life then "any chance I had I was gone".
Mr. K.C. Condon MCh, FRCS gave evidence that the plaintiff came under his care at Cork Regional Hospital on 28th April, 1979. He was found to have suffered extensive injuries to both legs caused by shrapnel. In addition to major wounds he had a fracture of the outer prominence of the right ankle as a result of which arthritis is likely to develop in that joint in the future. He had also suffered comminuted fractures of the first, second and third metatarsal bones of the left foot. His wounds required extensive skin grafting. The plaintiff has been left with substantial scarring on both legs which in the view of the surgeon constitutes a serious permanent partial incapacity and disfigurement which will prevent him from taking on any job which entails substantial manual work, walking or standing for lenghty periods.
The scars on the left leg are as follows:-
(1) A depressed scar one inch in length and a quarter of an inch in width at the base of the left great toe
(2) A depressed very adherent scar almost circular and three quarters of an inch across which is over the shaft of the middle metatarsal of the left foot
(3) A slightly adherent skin grafted area over the anterior aspect of the left ankle which is three inches across by two inches in a vertical line
(4) An adherent stellate shaped scar just above the left medial malleolus about a quarter of an inch in size
(5) Two small scars in the centre of the left calf on the inner aspect being one inch and three quarters of an inch respectively
The scars on the right leg are
(a) A scar on the posterior aspect of the thigh on the medial side and a small stellate scar;
(b) an adherent skin grafted area over the lateral aspect of the ankle two inches by one and a half inches and a slightly depressed skin grafted area over the upper mid-calf on the outer side two inches by two and a half inches with a further non-adherent scar over the front of the shin one inch in diameter;
(c) there are a number of other depressed scars on this leg;
(d) on the thigh there is a split skin-grafted donor scar over an area covering about six inches by five inches.
The right leg has given less trouble than the left as the foot is relatively speaking intact and the scars, though extensive are not causing much trouble with the exception of the scar over the ankle prominence. The surgeon explained that the wound on the left foot took a very long time to heal and originally there were broken bones protruding through it.
In January, 1982 four more pieces of shrapnel were removed from the left leg. The plaintiff may suffer from ulceration in the grafted areas at or about age sixty and, if so, this will cause him serious difficulty. There is no sign of ulceration at present. In the surgeon's view the plaintiff has suffered a major permanent disability which will probably prevent him from obtaining full-time employment. He could do a driving job, but not if it entailed lengthy periods at the wheel. Mr. Edward Hogan, a clinical psychologist, gave evidence that the plaintiff is a man of normal intelligence and without personality problems who has become disabled socially and occupationally by reason of the injuries he sustained in the Lebanon in 1979. The opportunities open to him for employment are, in Mr. Hogan's view, severely restricted by physical and psychological handicaps. The plaintiff is afraid of crowded areas such as dance-halls, major football or hurling matches, etc., and he has learned to avoid such places as much as possible. In Mr. Hogan's view the plaintiff is fit for clerical work and could learn new skills in that area (though it must be borne in mind that he left school at age fifteen). After training the plaintiff would be able to manage basic office work but would need a benevolent employer.
Mr.,Joseph O'Meara, a trade union official, and Mr. Desmond Nelson, an industrial relations expert, gave evidence about earnings in various types of work which are within the plaintiff's restricted physical capacity and about employment prospects in the Mitchelstown area generally. The following facts emerged:- Nine hundred people are employed in Mitchelstown Co-operative. This represents about 85% of those working in the town. There is no light work there, apart from clerical work, and no disabled people are employed. There are more than 400 registered unemployed in Mitchelstown. In Mr. O'Meara's view the best job the plaintiff could hope to get would be at a wage of £2 per hour i.e. £80 gross per week.
Mr. Nelson gave evidence about wages paid to a variety of jobs which would be within the plaintiff's present capacity. For example, he might earn £125 to £175 per week gross as a cashier in the motor trade. He would need training in book-keeping and keyboard skills. As a store-keeper the plaintiff could expect to earn from £137 to £161 gross per week - the average pay for a store-keeper being £150 per week. The pay of an army sergeant is £185 to £205 gross per week after 15 years in that rank. In addition, the plaintiff as a sergeant would receive £20 per week military service allowance and £3 per week allowance as a driver - making a total - on the basis of the basic sergeants' rate of £185 - amounting to £208 per week gross or £138 net after tax, P.R.S.I. etc..
It seems to me that the best the plaintiff can hope for after re-training is a job as a store-keeper or as a cashier at a gross weekly wage of £150, the net value of which as calculated by Mr. Peter Delaney, actuary, is £110.
Thus there is a differential of £28 per week, the capital value of which based on Mr. Delaney's calculations amounts to £28,000. Service in the army constitutes secure employment which, subject to the risk of death, serious injury or serious ill-health, is likely to continue to age sixty. The civilian jobs to which I have referred - if eventually the plaintiff is lucky enough to get one - do not have the same degree of security of tenure. It seems to me that, paying due regard to the principles laid down by the Supreme Court in Reddy v. Bates, it is proper to allow the plaintiff a capital sum of £24,000 as compensation for net loss of earnings in the future.
It is also appropriate to take into account that the plaintiff requires a period of re-training and there is unlikely to be a job immediately available to him when his training is completed. It is reasonable to allow him a further sum of £6,000 as compensation for net loss of earnings for a further year from now.
|I assess damages as follows:-|
|(1)||Agreed special damages||£48,354|
|(2)||Capital value of net loss of earnings|
|in future from 1st October, 1990||£24,000|
|(3)||Estimated net loss of earnings from 1st|
|July, 1989 to 1st October, 1990||£ 6,000|
(a) Pain Suffering, disfigurement, disablement, depression and loss of enjoyment of life from 19th April, 1979 to 20th October, 1989
(b) Future pain, suffering, disfigurement, disablement, loss of enjoyment of life and loss of career in the army 70,000