THE SUPREME COURT
[Record Number: 2008/346]
Clarke C.J.O’Malley J.Peart J.
BETWEEN:
VICTOR MURTAGH
- AND -
MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL
JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 30TH DAY OF JULY 2018
1. This is the Minister’s appeal against the judgment and order of the High Court (Budd J.) dated the 30th July 2008 whereby the Minister was found liable in negligence for certain psychological injuries sustained by the plaintiff in the Lebanon during a tour of duty with the Irish armed forces which commenced around October 1986, and the failure to diagnose and treat him appropriately upon his return in a timely manner, so that as a result his condition became chronic, and for other loss and damage. Damages, including special damages, in the amount of €305,523.00 were awarded to the plaintiff following a trial which lasted 28 days.
2. This particular tour of duty was described in evidence by one of the plaintiff’s superior officers as “a tough tour”. The plaintiff was a young man aged just 21 years at the time, and this was his first tour of duty in the Lebanon. Before leaving for the Lebanon he had undergone the usual training, and also medical examinations which indicated a rating of A1 both in terms of physical fitness and general health.
3. But within days of his arrival the plaintiff was exposed to a number of dangerous and stressful incidents and situations which traumatised him, including regular exposure to live fire. The details of these incidents and situations are described in detail in the judgment of the trial judge and do not need to be repeated here. The plaintiff was unwell by the 29th November 1986 and was admitted to a battalion hospital at Tibnin. In this regard the trial judge stated:
“Lt-Col. Collins was the senior doctor who saw the plaintiff and in the LA30 he noted ‘query petit mal epilepsy attack on 29/11/1986’ on pp.26 and 27 of the LA 30. This notation was followed by a medical sign meaning ‘secondary to exhaustion’. The plaintiff had complained of a problem at the back of his throat and he was given an injection of diazepam, a form of valium, to calm him down. He was kept in overnight and on 30th November he was allowed to return to duty with the proviso that he was not to be on duty with less than two colleagues. The plaintiff’s case is that the significance of this was that the army doctors had or should have realised that the plaintiff was of vulnerable personality and at risk and not coping with the pressures of a post traumatic stress variety … .”
4. Following his return to duty the plaintiff suffered further incidents of stress, including the fact that on the 6th December 1986 a fellow soldier, Private William O’Brien, who the plaintiff knew, was killed by gunfire, and again on the 10th January 1987 Corporal Dermot McLoughlin was killed by a shrapnel round fired from an Israeli Defence Force tank. As noted by the trial judge, Corporal McLoughlin, who like the plaintiff was from Sligo, had befriended him and had been supportive of the plaintiff when the plaintiff had been stricken by fear.
5. The trial judge described how it was known around the camp that the plaintiff was suffering more than most from the stressful events occurring around him during this tour of duty, and exhibiting clear signs of stress such as uncontrollable shaking and trembling. The trial judge stated in this regard:
“The vulnerability of the plaintiff due to his immaturity at only just 21, and his gentle personality and strong reaction to the noise of thunderstorms or firing close to his position, and the effect which such incidents had in causing him acute anxiety states, should all have alerted the officers under whose command he was serving and the army doctors to the fact that [the plaintiff] was particularly susceptible to post traumatic stress.”
6. On his return to Ireland in April 1987 when this tour of duty ended the plaintiff was clearly suffering still from the after-effects of these incidents to which he had been exposed. His wife described him as having a changed personality, and being difficult and irritable, particularly with his children. He had flashbacks and had difficulty sleeping. His mental state deteriorated, and his changed behaviours eventually led to a breakdown of his marriage. He also drank heavily after his return home. I note that there was evidence that he was a heavy drinker before he went to the Lebanon also, and I will return to that issue.
7. While he received treatment both privately and from the army medical personnel for his heavy drinking, there was a delay in the diagnosis of, and therefore treatment for, post traumatic stress disorder (PTSD), even though the doctor treating his alcohol problems privately had suggested in a letter to the army doctor that his alcohol problems might be a consequence of PTSD. That possibility was not investigated by the army as quickly as it ought to have been, and the plaintiff’s PTSD therefore remained untreated for a significant period during which he continued to suffer and deteriorate. An opinion that the plaintiff could be suffering from PTSD was made by Capt. O’Loughlin on the 17th November 1995, and on the 29th February 1997 following the administration of the CAPS test, she was able to confirm that he had contracted PTSD in the Lebanon. This condition had therefore remained undiagnosed and untreated during the years following his return to Ireland with devastating effects on his life and his relationships.
8. Following a lengthy and exhaustive examination of the evidence and discussion of the legal issues that arise in relation to the plaintiff’s claims against the defendants, the trial judge concluded as follows on the issue of negligence:
“In conclusion, it is obvious that the defendants their servants or agents failed in their duty of care to the plaintiff in all the circumstances, not by his exposure to danger and traumatic incidents including close firing, explosions and the death of colleagues but in their failure to take appropriate care for the health of the plaintiff, and in failing to observe and recognise the warning signs of PTS in the panic stricken, incapacitating states of the plaintiff in Lebanon and the failure to recognise the significant symptoms of PTSD manifested by the plaintiff, and negligently failed to refer the plaintiff to the army psychiatrist, and failed to obtain remedial therapy and treatment for the plaintiff.”
9. Having reached his conclusions on the issue of negligence, the trial judge then addressed the issue raised by the defendants in their defence as to whether the plaintiff’s proceedings were statute-barred. I will deal with this in more detail in due course. It suffices to note for present purposes that the trial judge concluded that the plaintiff’s claim was not statute barred.
10. The Minister’s grounds of appeal can be conveniently stated under four general headings:
(a) the unsatisfactory/unfair nature of the trial;
(b) the Statute of Limitations;
(c) the assessment of the evidence and findings of fact, and
(d) the quantum of damages awarded.
(a) The unsatisfactory/unfair nature of the trial11. This ground of appeal can be conveniently sub-divided into two separate issues:(i) excessive interruptions and interventions by the trial judge, and
(ii) objective bias.
(i) Excessive interruptions and interventions by the trial judge12. There is no doubt in this case that the trial judge intervened constantly during the course of this 28 day hearing. I have little doubt that the extent of his interventions and questioning of witnesses as well as discussions with counsel added unnecessarily to the length of the trial. No doubt also it was the source of great irritation to counsel on both sides since it will inevitably have interrupted the smooth and planned flow of questioning during the examination in chief and cross-examination of witnesses. The question that arises on this appeal however is whether these constant interventions were so excessive and of such a nature throughout the hearing that this Court should determine that the trial was so unfair to the defendants and so unsatisfactory generally that the order of the High Court should be set aside, and a new trial ordered. While that prospect is unattractive given firstly the fact that the plaintiff’s claim relates to events that date back thirty years or more at this stage, and the hearing in the High Court concluded already some 10 years ago, each party to litigation is nevertheless entitled to a hearing which conforms to constitutionally guaranteed fair procedures, and when that standard is not achieved, the court must intervene since the right to a fair hearing is of central importance in a society governed by the rule of law. But it should do so with great caution and sparingly, and only in a clear case where manifest unfairness resulting in injustice is established.
13. Counsel for the appellants has referred the Court to the judgment of Kenny J. in the Supreme Court inThe People (DPP) v. McGuinness[1978] I.R. 189 where a similar issue arose in relation to the interruptions of the trial judge during cross-examination of the complainant and during counsel’s closing address to the jury in a rape trial. In that case the Court of Criminal Appeal set aside the verdict of the jury and ordered a retrial as in the opinion of the Court “the number of questions put by the judge and the many interventions by him made it impossible for Mr Daly to conduct a cross-examination on the lines he considered would be most effective and could have had the effect of causing the jury to believe that the judge had formed a definite opinion as to the credibility of the complainant”.
14. In the course of his judgment in The People (DPP) v. McGuinness, Kenny J. spoke of the importance of cross-examination, and the need for the trial judge to avoid unnecessary interruption during it. Having referred to the comment by Lord Denning inJones v. National Coal Board[1957] 2 QB 55 that “ … the very gist of cross-examination lies in the unbroken sequence of question and answer”, Kenny J. stated:
“When the defence to such a charge [i.e.rape] is consent, the cross-examination of the complainant is the most important evidential part of the trial. It may be long, but counsel should be allowed to return to matters he has already dealt with if he has succeeded in showing that on other matters the witness is not to be believed. The judge must be patient and confine his interventions to the minimum necessary for a fair trial. The judge should intervene only when cross-examining counsel mis-states evidence already given or asks a question which the witness may not understand, or when the judge thinks that the witness has misunderstood the question. When the defence is consent, the judge must allow unpleasant charges to be made against the complainant in connection with her past; he should not indicate to the jury that he disapproves of this being done.”
15. That of course was a jury trial on a criminal charge which is very different from the trial of the plaintiff’s personal injuries action before a judge sitting alone. Where there is a jury an additional dimension is present as far as fairness is concerned, namely that the judge needs to be aware that the jury may be influenced by what they might reasonably perceive from the judge’s behaviour, comments, questions or demeanour, to be a leaning in favour of or against the prosecution or the defence. That is not a question that arises in the present appeal.
16. But counsel has referred also to the judgment of Denning L.J (as he then was) in the Court of Appeal inJones v. National Coal Board[above] which was a civil claim and where the trial judge sat without a jury. Curiously, and unlike the present case,both sidesappealed the decision on the ground that a fair trial was not had in view of the excessive and ill-timed interventions of the trial judge throughout the trial, particularly during cross-examination, such that neither side came away from the trial feeling that they had had a fair opportunity to properly and fully put their case. The Court of Appeal considered that such was the extent of the questioning of expert witnesses by the trial judge himself that effectively he took these examinations out of the hands of counsel, and displayed much impatience during cross-examination, and brought it to a close. Having described in some detail the manner in which the trial judge had intervened in these ways, Denning L.J. stated at p. 63:
“No one can doubt that the judge, in intervening as he did, was actuated by the best motives. He was anxious to understand the details of this complicated case, and asked questions to get them clear in his mind. He was anxious that the witnesses should not be harassed unduly in cross-examination, and intervened to protect them when he thought necessary. He was anxious to investigate all the various criticisms that had been made against the board, and to see whether they were well founded or not. Hence, he took them up himself with the witnesses from time to time. He was anxious that the case should not be dragged on too long, and intimated clearly when he thought that a point had been sufficiently explored. All those are worthy motives on which judges daily intervene in the conduct of cases, and have done for centuries.
Nevertheless, we are quite clear that the interventions, taken together, were far more than they should have been. In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question ‘How’s that?’ His object, above all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role … ”.
17. In relation to the plaintiff’s complaints about the judge’s interventions and interference during counsel’s cross-examination of the coal board’s witnesses, Denning L.J. stated at p. 65:“Now, it cannot, of course, be doubted that a judge is not only entitled but is, indeed, bound to intervene at any stage of a witness’s evidence if he feels that, by reason of the technical nature of the evidence or otherwise, it is only by putting questions of his own that he can properly follow and appreciate what the witness is saying. Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness’s evidence can be properly tested, and it loses much of its effectiveness in counsel’s hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer. Further than this, cross-examining counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief. Excessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned, for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy sometimes to return … It appears to us that the interventions by the judge while Mr Mars-Jones was cross-examining went far beyond what was required to enable the judge to follow the witnesses’ evidence and on occasion took the form of initiating discussions with counsel on questions of law; further, and all too frequently, the judge interrupted in the middle of a witness’s answer to a question, or even before the witness had started to answer at all.
In our view, it is at least possible that the constant interruptions to which Mr Mars-Jones was subjected from the bench may well have prevented him from eliciting from the defendants’ witnesses answers which would have been helpful to the plaintiff’s case, and correspondingly damaging to that of the defendants.”
18. The standard of judicial conduct commended with such eloquence by Denning L.J. in 1957 remains an admirable standard of perfection earnestly to be desired of all judges, even some 60 years on. Nevertheless, as has been pointed out by the defendants in their submissions to this Court by reference to more recent authority which I shall come to, attitudes to judicial intervention have perhaps altered somewhat since Jones was decided. That is not to say that acceptable standards of judicial conduct have lowered, but it is probably correct to say that appropriate intervention from the bench has become more commonplace. But it must remain appropriate and not unfairly interfere with the conduct of the case by the parties. The nature and extent of the judge’s interventions will still determine whether or not such unfairness has manifested itself that the trial and verdict should be set aside, and a new trial ordered with all the added costs, time, and no doubt stress and anxiety for the litigant, which that will unavoidably entail. While the passages which I have quoted from Jones have been lengthy, this appeal provides an unusual opportunity to recall for the benefit of all judges the importance of judicial restraint during a trial, so that the litigants and the legal teams representing them can have reasonable freedom to present their case without excessive and unnecessary interruptions and interventions from the bench.
19. InJones, Denning L.J was talking in the context of a trial that had lasted four days. In such circumstances he was able to make reference to a number of specific instances of unnecessary interruptions by the trial judge sufficient to give a flavour of their nature and extent. I fear that in the present case, where the trial took place over some 28 days I am unable to display the full nature and extent of the trial judge’s interventions. However, it is fair to say that counsel for the appellants did not go so far as to say that the trial judge had unfairly interfered with his cross-examination to the extent that he was unable to get answers to questions that he asked. Neither did he attempt to identify particular instances where an interruption by the trial judge unfairly allowed the witness time to think, and mend his hand. But counsel also stated, I think correctly, that perhaps it is simply not possible to know if that was or was not the case. It was submitted that it is sufficient, in accordance with the principles stated in Jones, if it is shown that it is areasonable possibilityor a realistic risk that the interruptions were such that they might have prevented the effective cross-examination or examination in chief of the witness.
20. That said, however, a reading of the transcripts shows that the cross-examination of the plaintiff commenced before lunch on Day 4, and did not conclude until the afternoon of Day 7. That is in circumstances where the plaintiff’s evidence in chief commenced quite early on Day 3, and was completed midway through the morning of Day 4. There is no doubt that the judge’s interventions unfortunately added greatly to the length of time required to complete the plaintiff’s evidence in chief and cross-examination.
21. During the plaintiff’s cross-examination the interruptions by the trial judge were constant throughout. They were not intemperate in any way, or indicative of annoyance or criticism of counsel or how the cross-examination was being conducted. For the most part they can be seen as an irritant, indeed a significant irritant, to counsel throughout the three days that cross-examination took. I have no doubt that but for these constant interruptions by questions and comment that the plaintiff’s cross-examination lasted much longer than it otherwise would have.
22. It has to be said also that during this cross-examination there were many interruptions from counsel for the defendants which will also have interrupted the smooth flow of question and answer. In fact at one point the transcript shows counsel expressing some exasperation that he was facing interruptions not just by one opposing counsel, but at different times by all three counsel appearing for the defendants. However, that is not raised as a ground of appeal.
23. It is also fair to say that the interruptions by the trial judge by way of questioning and otherwise took place during the examination in chief of various witnesses. As counsel for the appellants puts it, the interventions of the trial judge throughout the trial were “relentless”. It is submitted that the sheer scale of the interruptions of the trial judge throughout the trial renders this trial so unsatisfactory that it became an unfair trial.
24. Counsel for the plaintiff accepts that the scale of the judge’s interruptions and interventions was unusual and excessive, but adds that they were not confined to the examination of witnesses by the defendants’ counsel. He submitted that it has not been demonstrated from the transcript that counsel was either prevented from asking questions of a witness, nor from eliciting answers to questions by reason of interruptions, and that therefore it cannot be said that the trial fell short of the gold standard of judicial conduct expressed in Jones by such a margin that there has been an injustice warranting a retrial.
25. Counsel has submitted that the defendants’ complaints are made largely at the level of generality. He submits that the transcript reveals that while the interruptions were many and various they were nevertheless mostly of a kind that did not amount to a substantive unfairness. He agrees that they added to the length and therefore the cost of the trial, but urges that they were relatively innocuous where the trial judge perhaps sought clarification of an answer, asked a witness to repeat his answer, discussed with counsel the contents of certain documents such as hospital records that he was having difficulty understanding, and then on occasion pursuing in discussion either with a witness or with counsel something that was of interest to him. In the overall, it is submitted, the number of pertinent questions asked by way of interruption of counsel’s examination is relatively small having regard to the overall length of the trial, and certainly did not reach the point of the trial judge taking over the examination or cross-examination in a way that should lead the court to find such unfairness against the defendants that it should order a retrial. It is to be distinguished from a case where, for example, a party was prevented from calling a witness or pursuing a particular line of questioning.
26. I referred earlier to the fact that counsel for the plaintiff had referred us to some authorities more recent than Jones, which indicated a more flexible approach to the question of judicial intervention to reflect perhaps the changed environment in which litigation takes place nowadays. While counsel accepts that the Jones principles are still appropriate at a level of generality, nevertheless he submits that more recent authority is relevant to how those principles should be now apply in practice.
27. The first authority referred to by counsel isDonnelly v. Timber Factors Ltd[1991] 1 I.R. 553, and to the statement as to the role of a judge made by McCarthy J. even though his judgment is a dissent. The majority, (O’Flaherty J. and Hederman J.), did not disagree with the following statement of principle appearing at p. 556:
“The role of the judge of trial in maintaining an even balance will require that on occasion he must intervene in the questioning of witnesses with questions of his own – the purpose being to clarify the unclear, to complete the incomplete, to elaborate the inadequate and to truncate the long-winded. It is not to embellish, to emphasise or, save rarely, to criticise. That is the function of counsel. The casual by-stander on seeing and hearing repeated judicial intervention may well conclude that issues in the case or the case itself are being decided before the evidence and the submissions are complete: if the casual by-stander may do so, how much more so the interested party, the litigant. This division of role between judge and advocate was always important in civil trials by jury; it is more important now that claims for damages for personal injuries are no longer tried by juries.”
28. It is worth noting thatDonnellywas a case in which counsel for the defendant/appellant had referred to the judgment of the Court of Appeal in Jones. Indeed, one hears echoes of the eloquence of Lord Denning in the above short passage from the dissenting judgment of McCarthy J. Nevertheless, the majority held that while there were undoubtedly interventions by the trial judge as described, they were made in order “to clear up ambiguities or were otherwise quite innocuous” (perO’Flaherty J. at p.558). O’Flaherty J. concluded his judgment with the following remarks, albeit obiter, regarding Jones:“In conclusion, it is right to say that counsel on behalf of the defendants relied on the judgement of the Court Of Appeal in England inJones v. National Coal Board[1957] 2 QB 55. Since McCarthy J. has dealt so fully with the topic of the trial judge’s role I feel it would be superfluous to say anything further about that decision except that I find some of its precepts difficult to reconcile with other judgements of that court; see, for example,Reg. v. Hircock[1970] 1 Q.B. 67 – a decision of much the same vintage as the Jones case…”.
29. We were referred to the case ofReg. v. Hircockjust mentioned. This was a case involving what was found to be discourteous conduct on the part of the trial judge, as opposed to excessive intervention. Complaints made in relation to excessive interruption were rejected as being “entirely untrue”. The transcript did not bear out those complaints. However, the complaints as to the judge’s conduct related to his discourtesy, not by words but rather by actions which were of course not caught on the transcript.
30. The conduct in question is worth describing from its description in the judgment as follows:
“It seems that when Mr Gardner (Counsel for Leggett) was about to address the jury after addresses by all other counsel, he indicated that in order to do justice to his case he was going to run through each defendant’s case in turn to establish the position of Leggett during the fight. It is evident that the prospect of this somewhat protracted re-examination of the circumstances was something which did not appeal to the chairman, because all the witnesses say that he observed in a loud voice “Oh, God”, and then laid his head across his arm and made groaning noises. There was a silence for a moment, and then the chairman looked up and said to Mr Gardner “yes, yes” in what is described as a “testy way”, and counsel regarded that as the signal to proceed with his address to the jury, which in fact he then undertook. It is said that throughout the speech the chairman kept sighing and groaning, and one witness at any rate said that he observed “Oh, God” on more than one occasion.”
31. That is clearly conduct at the extreme end of any spectrum of judicial behaviour on the bench, and, I am glad to say, beyond anything I have ever observed in our courts over a legal career spanning now almost half a century. It was nonetheless considered that it was not such as would invite the jury to disbelieve the defence witnesses. A distinction was drawn between such conduct, and conduct that “positively and actively obstructs counsel in the doing of his work”. In his judgment, Lord Widgery concluded thus:“There is, in our judgment, a very important distinction between conduct on the part of the presiding judge which may be regarded as discourteous and may show signs of impatience-and, indeed, conduct which cannot be commended in any way - but which does not in itself invite the jury to disbelieve the defence witnesses, and conduct which positively and actively obstructs counsel in the doing of his work. The distinction is between that type of case first mentioned and the type of case inReg. v. Clewer, where there was an invitation by the judge to the jury to disregard what was being said and active, positive interference with counsel in the pursuit of his task.”
32. In these circumstances, the court did not consider that the conduct was of a kind which would cause the conviction to be unsafe or unsatisfactory, and therefore was not conduct which could possibly affect the outcome of the appeal. In those circumstances the appeal was dismissed.
33. Another case to which we were referred by counsel to indicate a modern approach to capacity of judicial conduct to “put justice to the hazard” (to borrow a phrase from Mr Justice Henchy inO’Domhnaill v. Merrick[1984] I.R. 151 at 158) isDemarco Almeida v. Opportunity Equity Partners Ltd[2006] UKPC 44. That was a case that ultimately came before the Privy Council on appeal from the Court of Appeal, and among the grounds of appeal was one which related to the conduct of the trial judge who repeatedly interrupted during the course of the evidence. The Privy Council concluded that while the trial judge’s conduct “went some way beyond what was proper”, his conduct was not motivated by partiality but rather by a desire to understand evidence that was “often obscure and inconsequential”. In these circumstances the Privy Council did not consider that a new trial should be ordered since “the fair-minded and informed observer, having considered the facts, would [not have concluded] that there was a real possibility that the judge was biased” and “the judge’s conduct was not such as to render the trial unfair”. In the judgment of the Board delivered by Lord Walker of Gestingthorpe, he referred to changing attitudes to judicial interventions which had evolved in the fifty years or so since Jones, and to references to such an evolution in the judgment of Kirby ACJ inGalea v. Galea[1990] 19 NSWLR 263. In a passage quoted fromGalea v. Galea, and having set out certain guidelines when considering whether judicial conduct had resulted in an unfair trial, Kirby ACJ stated:
“6. The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since [Jones in 1957 and the New South Wales case ofTousek v Bernatin 1959], at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid.… .”
34. Lord Walker went on to state that the Privy Council consideredGalea v. Galeato provide valuable guidance as to the principles to be applied, but added that the facts and circumstances which may render a trial unfair “are so multifarious that the principles may need to be applied flexibly in some circumstances (in particular it may simply not be possible to order a new trial which would itself have any prospect of being fair”. Counsel has pointed to this last statement in the context of the present appeal where the facts giving rise to the plaintiff’s claim happened some 30 years and more ago.
35.Demarcowas a case where the trial judge effectively took over the running of the case, including the asking of questions during examination in chief. It appears that in the course of doing so he expressed a degree of disbelief at some of that evidence. In reaching a conclusion that no retrial was warranted, Lord Walker noted the extensive and repeated interruptions, the impatience and abruptness on occasion displayed, and interruptions in cross-examination, and then stated:
“Their Lordships wish to state plainly that the judge was seriously at fault in the way he conducted this trial. Even making generous allowance for all the difficulties already mentioned, and adopting the robust approach approved in Galea, his interventions went some way beyond what was proper. But the judge’s interventions were motivated, not by partiality, but by the wish to understand the evidence (which was often obscure and inconsequential) and to push on the trial process. There is no reason to suppose that the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased … . In the view of their Lordships … the judge’s conduct was not such as to render the trial unfair. Leading counsel for OEP (who was also operating under great difficulties, and whose skill and sense of professional duty – after an inauspicious start – the judge seems to have underestimated) was able to put his client’s case before the court. It failed not because the trial was unfair but because it was a case without merit, and OEP’s witnesses were shown to have lied to the court in interlocutory affidavits, in their witness statements and in their oral evidence at trial.”
36. I think it is fair to observe that the gold standard enunciated by Denning J. (as he then was) inJoneshas been tempered somewhat in its strict application in the intervening years, without in any way wishing to condone behaviour that falls short of an acceptable standard. TheJonesprinciples should not be seen as doctrinal and dogmatic, but rather a guide to what is expected in an ideal world. There is perhaps still much to be said in favour of Palles C.B. who is attributed as saying that ‘a judge should keep his mouth shut and his mind open: when he opens his mouth he shuts his mind’, while at the same time not advocating for the adoption of a stern and surly judicial countenance that conveys either disinterest or lack of comprehension, or both. In his choice of words The Chief Baron was perhaps simply stating the obvious – that it is for the lawyers to advocate, and for the judge to listen to the competing arguments and decide between the two.
37. In my view, the manner in which this trial proceeded from start to finish was far short of ideal due to the manner in which the trial judge continuously interrupted proceedings. It certainly fell below theJonesgold standard. I have no doubt firstly that it was very irritating and distracting for counsel – on both sides as they presented their evidence – and secondly, it undoubtedly added significantly to the trial whose length should have been counted in days rather than weeks. However this appeal is not an inquiry into the conduct of the judge. Rather, it is an examination of the fairness of the trial that eventuated, and specifically, given that only one party has appealed, whether the trial was so unfair to the defendants that justice was not administered with the consequence that the entire process should be set aside, and a retrial ordered.
38. While not in any way condoning what occurred – but, rather, deprecating it – it is undeniable from the transcript that by his constant and relentless interruptions throughout the trial, the trial judge was relatively even-handed in this regard. Counsel on both sides were faced with the same difficult task of getting the evidence out, and keeping matters on track. I have the greatest sympathy for counsel, solicitors and the parties in such a situation. It ought not to happen.
39. But having said that much, it must be said also that these interruptions, constant as they were, did not prevent questions being asked by counsel either in examination in chief, or in cross-examination, and did not cut off lines of inquiry that counsel wished to pursue with witnesses. Neither it must be said were the trial judge’s interventions ill-tempered and discourteous. The most that can be said is that they were largely unnecessary and irritating, albeit over the course of what became a very long trial. Importantly, I do not consider that justice was denied to the defendant by the trial judge’s conduct. A fair though needlessly long trial was achieved.
40. My overall conclusion has much in common with the conclusions expressed by Patton L.J. inShaw v. Grouby[2017] EWCA Civ 233. That was a case where, somewhat similarly to the present case, the interventions by the trial judge, particularly during cross-examination of the defendant’s witnesses, was so extensive that, as Patton L.J. puts it “he all but took over the cross-examination of the defendants”. At paras. 43-46 of his judgment Patton L.J. stated:
“43. The question therefore for us is whether Judge McCahill became so involved in the examination of the witnesses that he either made it impossible for Mr Auld properly to conduct his clients' case or lost the ability to reach balanced and objective conclusions on the evidence which he heard. The defendants have produced transcripts of the evidence in which the judge's interventions are shown highlighted in yellow. Some of these are exchanges with counsel rather than questions to the witnesses but there are a significant number of pages where virtually every line is highlighted. We were referred, for example, to the evidence of Ms Stolle where there are pages of questioning by the judge and at least one occasion where the judge interrupts and answers Mr Auld's question to the expert before she has had an opportunity to do so.
44. The judge understandably did not approve of the defendants' resort to self-help by obstructing the driveway with the plastic bins or the price which they demanded for the sale of the driveway to the residents. Mr Auld said that the judge became obsessed about this which manifested itself during the cross-examination of the defendants. Mr Auld has analysed the transcripts which disclose that the judge asked Mr Grouby about as many questions as he was asked by Mr Sahonte. The cross-examination on 30 June takes up 52 pages of transcript. On only 7 of those pages is there no question by the judge and on 6 pages virtually the entirety of the questioning is by the judge. At the end of the second day of Mr Grouby's evidence after his re-examination by Mr Auld the judge was asked whether he had any questions and he then proceeded to ask 52 consecutive questions of the witness.
45. I have to say at the outset that the judge's interventions, whilst always courteous, were in my opinion excessive and that he should have attempted to postpone his questioning, particularly of the witnesses of fact, until after counsel had conducted his cross-examination except when it was necessary to ask the witness to clarify an answer so that the judge could understand the evidence that was being given. To be fair to the judge, he regularly apologised for what he himself described as his over-eager desire to get to grips with the case but that does not alter the fact that his enthusiasm continually interrupted the examination of the witnesses.
46. That said, I have reached the conclusion that there was still a fair trial and a proper judicial determination of the main issues … .
47. …
48. …
49. …
50. Although I recognise that many of the judge’s interventions may have been frustrating, I do not therefore consider that the judge’s conduct made the trial unfair in the sense described inKofi-Adu. He did not prevent Mr Auld from cross-examining the claimant’s witnesses. The factual and expert evidence necessary for the determination of the two property issues was not seriously in dispute and the judge’s decisions on the construction of the 1999 transfer were correct for the reasons given earlier. I would therefore dismiss this ground of appeal.”
41. Worthy of note also are the concurring remarks of Sir Geoffrey Voss C. who stated:“61. Since, however, the appeal has raised a criticism of the way the judge handled the trial, I will add a few words of my own. As Jonathan Parker LJ said inSouthwark LBC v. Kofi-Adu[2006] EWCA Civ 281: ‘the risk [of frequent judicial interventions during the evidence] is that the judge’s descent into the arena … may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment, and mayfor that reasonrender the trial unfair’. A judge may always intervene to clarify the evidence or to ensure that time is not wasted, but the trial process can be distorted if the judge intervenes too much.
62. Judicial self-restraint is required to avoid the consequences mentioned by Jonathan Parker LJ and, of course, to ensure that the parties leave the trial process feeling that they have had a fair hearing and that their evidence was heard and understood.
63. In this case, the judge did intervene too much as Patten LJ has explained. I would not wish to be over-critical in an environment where active trial management and a measure of judicial interventionism are acknowledged as appropriate tools to focus and streamline proceedings both interlocutory and at trial. It remains important, however, to allow relevant evidence to be presented and cross-examined without inappropriate interruptions.
64. Fortunately, the judge’s conduct did not, in this case, have the effect of preventing the defendants from fully and properly presenting their evidence, nor did it, in my judgement, impair his decision-making …”.
42. For the reasons I have stated above, I would not direct a retrial on the basis of this ground of appeal, since for the reasons stated I do not believe that the trial was constitutionally unfair, notwithstanding the excessive and largely unnecessary interruptions and interventions by the trial judge at all stages of the trial.
(ii) Objective bias
43. The opening of the case by counsel for the plaintiff concluded at the end of Day 2. During that day, counsel for the appellants had asked the trial judge to recuse himself because of certain remarks made by the trial judge about a Col. Goggin who had given evidence before the trial judge in another case (McHugh v. Minister for Defence[2001] 1 IR 424) where PTSD was also involved. The trial judge stated that he had been “hugely impressive” and that he recalled well what he had said. It appears that Col. Goggin had given evidence of having given lectures to troops ahead of tours of duty in the Lebanon, and the trial judge mentioned this, and wondered if he had given such lectures to the plaintiff’s battalion prior to its departure to the Lebanon in 1986. The trial judge also expressed the hope that Col. Goggin was “still to the good”. He was informed that he was retired from the army, and was informed also by counsel for the plaintiff that he was not being called as a witness. In response to that application to recuse himself, the trial judge simply stated: “Well I refuse that”. Thereafter, there was some further brief discussion about the judge’s reference to Col. Goggin during which counsel for the appellants was able to state that Col. Goggin was not relevant at all to the present case because the lectures that the trial judge had earlier referred to as having been given to troops prior to departure to the Lebanon had post-dated the plaintiff’s tour of duty by some 4/5 years.
44. In any event, at the very commencement of Day 3 the recusal application was renewed. It was submitted that the trial judge had displayed pre-judgment of the issues in this case by his reference to Col. Goggins on Day 2, and his references to theMcHughcase. It was submitted that these references to theMcHughcase gave the defendants the perception that the trial judge considered that theMcHughcase governed the present case and in that sense that the trial judge had pre-judged the issues, so that the defendants could not receive a fair hearing.
45. It was also submitted that by the trial judge referring to having been impressed by Col. Goggins’ evidence in theMcHughcase he was indirectly advising the plaintiff’s proofs in the present case, where Col. Goggins was not a witness being called by the plaintiff. It was said that the trial judge had constantly expressed astonishment that Col. Goggins was not being called as a witness. It was submitted also that even though theMcHughcase post-dated the events in the present case, the defendants feared that the trial judge would nevertheless take “judicial notice” of the evidence that he had heard in theMcHughcase from Col. Goggin.
46. There were two other grounds for the recusal application. Firstly, it was contended that objective bias arose because during the opening of the plaintiff’s case, the trial judge had had asked counsel to address him on the question of general damages, and also had expressed “astonishment” that there was no claim being made in respect of loss of earnings. Again, it was contended that this amounted to the trial judge advising proofs, and that by asking for guidance in relation to general damages before any evidence had been heard the trial judge was indicating some pre-judgment of the liability issues that would arise. No authorities on the issue of objective bias were opened during the recusal application.
47. In his ruling the trial judge said that he had referred to theMcHughcase simply to indicate that he had some familiarity with the problems facing soldiers in the Lebanon, and so that time would not be wasted dealing with extraneous matters. He gave his reasons for refusing the application to recuse himself as follows:
“Now, as to the request to recuse: I am sorry if anybody should have thought that I was displaying some bias. I am horrified that people would think that. Certainly I am very conscious of my oath to deal with the case without fear or favour, and I hope, because I do not propose to recuse in this case, I hope that as the case progresses, that if I come to make enquiries, that people will realise that it is even-handed; that I will be making enquiries of the plaintiff’s counsel, just as I have made enquiries of the defendants’ counsel.”
48. In my view there was no basis for the trial judge to recuse himself on the basis of pre-judgment or objective bias. Even the factual basis on which the application was put forward was inaccurately articulated to the trial judge. The transcript does not indicate any expression of astonishment by the trial judge that Col. Goggin was not being called. Neither was there any expression of astonishment that there was no claim being made for loss of earnings. There was some discussion about each of these matters but to refer to it as astonishment is to mischaracterise what occurred. The trial judge was told by the plaintiff’s counsel that Col. Goggins was not being called as a witness. There is no question of the trial judge then recommending that he be called or giving encouragement in that direction.
49. Equally, the discussion that occurred in relation to loss of earnings was nothing out of the ordinary. The trial judge had simply not understood why there was no claim for loss of earnings given the nature of the claim, and the fact that he had had to leave the army. Counsel then explained that in fact the plaintiff had been able to get some work in the construction sector, and would not be able to lead evidence to show that there were loss of earnings. That cleared up the misunderstanding on the part of the trial judge, and matters moved on. That was the context in which the discussion about loss of earnings took place. In my view there is nothing in that discussion that could possibly be described as advising the plaintiff’s proofs as regards claiming loss of earnings. No question of objective bias could arise in that regard.
50. Similarly, there is no factual basis for a complaint of objective bias arising from the fact that the trial judge raised the question of general damages during the opening of the case by the plaintiff. Well into Day 2 counsel referred to the claim for general damages, having dealt with the fact that there was no claim being made in respect of loss of earnings. At that point the trial judge asked: “But can you help me in relation to the general damages?”. There followed a discussion between counsel and the trial judge as to the basis on which such damages were being claimed, such as job limitation, lack of training, failure to provide remedial therapy, and loss of amenity of life to date, as well as into the future.
51. The defendants have submitted that the judge’s question about general damages during the opening of the case indicates a pre-judgment of the issues in the case before any evidence had been heard. That cannot be correct in my view. The opening of every personal injuries case inevitably includes putting forward the basis on which general damages are being claimed and should be assessed. The fact that the trial judge perhaps pre-empts that part of the opening by actually asking about general damages instead of waiting for counsel to come to it as he/she inevitably must, cannot give rise to a claim of objective bias on the basis of pre-judgment. In my view that is unstateable as a ground for asking the trial judge to recuse himself.
52. In my view there is no need to get involved in a discussion of the principles as to the appropriate test for objective bias. They are clearly established in cases such asBula Ltd v. Tara Mines Ltd (No.6)[2000] 4 I.R. 412;Orange Communications Ltd v. Director of Telecommunications Regulation[2000] 4 IR 159;Goode Concrete Ltd v. CRH Plc.[2015] 3 IR 493; andO’Driscoll (a minor) v. Hurley and Health Service Executive[2016] IESC 32. In this case there was simply no proper factual basis for the application to recuse. None of the matters raised, when considered in their proper context and by reference to what actually occurred during the opening of the plaintiff’s case, could possibly as a matter of fact or of law amount to objective bias, whether on the basis of a pre-judgment or otherwise. On the basis of the grounds advanced no properly informed reasonable and objective observer knowing the facts would have a reasonable apprehension that the trial judge would be biased and that the defendants would not receive a fair hearing. I would reject this ground of appeal.
(b) Statute of Limitations issue
53. Section 2 of the Statute of Limitations (Amendment) Act 1991 provides:
54. Section 3 of the Act of 1991 provides:“3. An action, other than one to which section 6 of this Act applies, claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured”.
55. The plaintiff commenced his proceedings by plenary summons issued on the 23rd March 1998. At the time such proceedings in respect of personal injuries had to be commenced not later than three years from the date of accrual of the action i.e. the date of injury. Therefore, if the date on which the plaintiff first knew that he was suffering from PTSD predates the 23rd March 1995, then his proceedings will be statute barred. The defendants contend that he had that knowledge at least in May/June 1994 when he was seen by Dr. McCarrick (a civilian doctor) at St. Columba’s Hospital. They point to the fact that Dr. Breslin, who was also working in the psychiatric department at St. Columba’s Hospital at that time, stated in evidence that on an occasion when he saw the plaintiff on the 31st May 1994 the plaintiff had told him that there had been some discussion about possible referral for treatment for PTSD.
56. The defendants relied upon a letter sent by Dr Breslin to Dr Kerr dated the 2nd June 1994 ( apparently written on the instructions of Dr O’Loughlin) which stated,inter alia, the following:
“Dr McCarrick feels that he may be suffering a form of Post-Traumatic Stress Disorder and feels that treatment with this problem may help Victor’s problem. We were made aware of the army having facilities which deal with this problem in Dublin and perhaps Victor might be a candidate for assessment for such treatment.”
57. The defendants relied also on the fact that even in February 1988, on his return from his tour of duty in the Lebanon, the plaintiff had attended his general practitioner, Dr Mary Scully, and was complaining about symptoms which he related to his experiences in the Lebanon, such as nightmares, insomnia, anxiety and excessive drinking.
58. The defendants submitted in the High Court that it was clear that by May 1994 the plaintiff had sufficient knowledge that he had suffered an injury while in the Lebanon and that it was reasonable therefore that he would then begin to investigate whether or not he had a claim against the defendants on the basis that there was a negligent act or omission attributable to the defendants. In other words the clock started to run against him from that point.
59. The plaintiff relied upon the fact that whether or not there had been some brief mention by Dr McCarrick to the plaintiff of PTSD as a possibility, the fact is that the army medical personnel did not consider that the plaintiff was suffering from PTSD and refer to the fact that on the 7th November 1995 Commandant Kerr wrote to Dr O’Loughlin who was the army psychiatrist at St. Bricin’s Hospital in Dublin seeking to have the plaintiff examined. That letter stated,inter alia;
“ … I would value your opinion and in additionwish to outrule any possibility of Post Traumatic Stress Disorder. Victor apparently mentioned this to Dr Flynn’s locum in June 1994 but both she (Dr Flynn) and I never found supporting evidence. By its nature however it is probably better to get this issue clarified before the man is reviewed by the Med Board …” [Emphasis provided]
60. When asked to clarify why he had wished to “outrule” any possibility of PTSD, Cdt. Kerr answered;“That is why at this time from that letter and my own clinical diagnosis and my own contact with patient found PTSD a bridge too far if you will excuse the pun. I did not countenance it as my diagnosis but I knew that if I was sitting on a board and I was presented with the document I was proposing to present to the subsequent board, I knew I would want clarification of that. That is why I made – why I made the referral first of all … And why I specifically made it to outrule PTSD.”
61. He went on to say that his primary diagnosis was that the plaintiff was an alcoholic with very limited or no insight, and subject to episodes of depression and anxiety precipitated by domestic upheavals. In answer to the trial judge he confirmed that his primary diagnosis was that the plaintiff was an alcoholic because he had several admissions for alcohol abuse. At a later stage in his evidence he said that he was quite surprised at the suggestion of post-traumatic stress, and that his view was that the plaintiff was an alcoholic who suffered from alcoholism interspersed with episodes of depression and anxiety. He wanted to outrule PTSD because he did not believe that it was the appropriate diagnosis and felt that it was a red herring.
62. The plaintiff submitted that when this referral was belatedly made, it was done, not for the purpose of investigating whether the plaintiff suffered from PTSD and/or needed treatment for same, but rather for the purposes of confirming that he did not have PTSD, and in the context of an upcoming medical board in relation to his discharge from the army.
63. It appears that in February 1996 Dr O’Loughlin performed the CAPS test on the plaintiff after he was referred to her, and she made a diagnosis of PTSD at that stage of which Cdt. Kerr was informed by letter dated the 27th May 1996.
64. It was submitted that in all of these circumstances the plaintiff could not be considered to have had the requisite knowledge that he was suffering from PTSD and should have received treatment for same at an earlier stage until such time as a diagnosis of PTSD was actually made. It was submitted also that in circumstances where Cdt. Kerr did not accept the possibility that the plaintiff was suffering from PTSD, it would be perverse to find that as of a date prior to March 1995 the plaintiff ought to have known that he had PTSD.
65. The trial judge considered that the view expressed by Dr McCarrick, as noted by Dr Breslin in his letter to Cdt. Kerr of the 2nd June 1994 was tentative only. Unfortunately he had died prior to the trial. He noted also that neither the plaintiff’s treating psychiatrist, Dr Flynn, nor Cdt. Kerr, nor Lt-Col. Collins agreed with the tentative diagnosis of PTSD. He concluded as follows:
“In view of the advices as to alcohol being the source of his problem from the army doctors and Dr Flynn, who was never briefed with the copy LA30 or other records with regard to the plaintiff’s acute incapacitating anxiety states in the Lebanon and the tentative suggestion made by Dr McCarrick through his SHO Dr Breslin, it would surely have been precipitate for the plaintiff to rush off to a solicitor before being referred to Captain Dr F. O’Loughlin, the Army psychiatrist. She reported definitively to Dr Kerr by her letter dated 27th May 1996 when she confirmed that the plaintiff had had and still had posttraumatic stress disorder.”
66. In relation to the plaintiff’s date of knowledge for the purpose of s. 2(1) of the Act of 1991 the trial judge was satisfied that since the plaintiff was only diagnosed with PTSD in 1996, and his claim was based on the negligent failure to recognise and treat post-traumatic stress disorder, he could not have become aware of the inaction on the part of the defendant in recognising and treating his PTSD until he had been diagnosed with that condition. He went on to state that the plaintiff was also claiming that the defendant negligently failed to arrange treatment following the diagnosis of PTSD in 1996. He was satisfied that the claim in relation to this head of negligence is one that continued until the time of his discharge from the army, and that no case could be made out by the defendants that this head of the plaintiff’s claim was statute barred.
67. The trial judge also addressed submissions made by the defendants under s. 2(2) and (3) of the Act of 1991 which I have set forth above, but do so again for convenience:
“(2) For the purpose of this section, a person’s knowledge includes knowledge which he might reasonably have been expected to acquire--
(a) from facts observable or ascertainable by him, or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.
(3) Notwithstanding subsection (2) of this section –
(a) a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice; and
(b) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury.”
68. The trial judge was satisfied that the plaintiff could not have been expected to acquire knowledge that he had post-traumatic stress disorder in 1994 from facts observable or ascertainable by himself. He was satisfied also he could not be expected to have acquired such knowledge with the help of medical advice which it was reasonable for him to seek, since the plaintiff’s medical advisers themselves did not ascertain that he had PTSD until 1996. In such circumstances, the trial judge concluded that the plaintiff was not in a position to obtain expert advice any earlier than he did because of the defendants’ delay in referring him to Dr O’Loughlin.
69. The trial judge went on to state that even if he was wrong in relation to his conclusions as to s. 2(2) of the Act of 1991, defendants could not rely upon that provision by virtue of s. 2(3) of the Act because the plaintiff had taken all reasonable steps to obtain advice. He stated that “it would be inequitable to permit them [the defendants] to rely on their own delay in referring him for specialist opinion which found that he had chronic PTSD”. In those circumstances he considered that the defendants were estopped from relying on section 2(2)(b) of the Act.
70. On this appeal counsel for the appellants submits that the trial judge fell into error by failing to attach any or any sufficient weight to the plaintiff’s own admission in his evidence that in May/June 1994 PTSD had been mentioned to him by Dr McCarrick. It is submitted that this particular piece of evidence is ignored by the trial judge. The trial judge does refer in his judgment to the defendants’ case being that the plaintiff was aware that Dr McCarrick thought that he could be suffering from PTSD, but then states that he had died “so there is no evidence from him as to what he said to the plaintiff”. However, the trial judge makes no reference to the plaintiff stating during cross examination on Day 4 that he had then recalled that Dr McCarrick had mentioned PTSD to him in May 1994. In his direct evidence he had said that the first time he had heard of PTSD was in 1996 when Dr O’Loughlin made her diagnosis. But under cross-examination he said that he had just recalled that it had been mentioned by Dr. McCarrick. This was when he stated that Dr McCarrick had told him that he had been in the Gulf War and had seen it with English soldiers there, and thought the plaintiff had the same symptoms. The defendants contend that the plaintiff should be fixed with requisite knowledge from that point in May/June 1994, and that he should have investigated the matter further from any date thereafter, and commenced his proceedings within 3 years of that date.
71. Counsel for the plaintiff emphasises that the plaintiff’s claim is not based on the fact that he acquired a post traumatic stress disorder following his tour of duty in the Lebanon in 1986/87, but rather that, knowing his symptoms on his return, they failed to diagnose PTSD in a timely manner, and therefore failed to afford him appropriate treatment for some 10 years, by which time his PTSD had become chronic.
72. It is submitted therefore that for the purpose of the Act of 1991 the fact that there was such a delay in diagnosis and in his treatment cannot be something to have been known by the plaintiff until such time as the defendants themselves made such a diagnosis. In fact, it is clear from the evidence of Cdt. Kerr that he eschewed any idea that the plaintiff was suffering from PTSD when that was first suggested to him in 1995, and that when he referred the plaintiff to Dr O’Loughlin for assessment in that regard, his stated purpose was to rule out PTSD rather than to confirm that he was suffering from it. He did not believe that it was PTSD. His firm view was that he was suffering from alcoholism with associated depression and anxiety.
73. Counsel for the plaintiff has referred the Court to the judgment of O’Donovan J. inKnowles v. Minister for Defence[2002] IEHC 39 where the plaintiff brought a claim for damages which has many similarities to the present claim. In his judgment O’Donovan J. explains his reasons for concluding following the hearing of argument on a preliminary issue on the statute that the plaintiff’s claim was not statute barred. At p. 2 of his judgement he stated:
“…I decided to determine that issue as a preliminary issue and, having heard evidence from the plaintiff in that regard, I concluded that his claim herein is not statute barred for the reason that, while it is clear that, at all material times since the year 1978, the plaintiff believed that the psychological problems of which he complained and continues to complain were attributable to events which occurred while he was a serving soldier in the Lebanon, it was not until he was referred to Dr Ian Daly, a consultant psychiatrist, in the year 1996 that he first appreciated that those problems could have been alleviated and, possibly, eradicated had he been prescribed appropriate treatment by the Army medical corps at the time that he is alleged to have manifested psychological and psychiatric symptoms in the Lebanon. In those circumstances, I was satisfied that Mr Knowles date of knowledge that he had a cause of action, within the meaning of the provisions of the Statute of Limitations (Amendment) Act, 1991, was when he saw Dr Daly in 1996 and that, therefore, his claim herein is not statute barred. In this regard, notwithstanding that I made that determination on the 28th November last, the defendants revisited the issue as to whether or not the plaintiff’s claim herein is statute barred in their submissions herein dated the 19th December, 2001. In that regard, it is clear from those submissions that the defendants’ advisers do not appreciate the basis upon which the plaintiff’s claim herein is founded. It is not based on an allegation that the defendants negligently inflicted psychiatric damage on the plaintiff, as is suggested those submissions. If that were the basis forthe plaintiff’s claim, then there is no doubt but that it would be statute barred because, in the course of his evidence, the plaintiff acknowledged that he was aware that the problems of which he has complained since he went to the Lebanon in 1978 were attributable to events which occurred at that time. However, the fact of the matter is that he does not complain that the defendants negligently inflicted psychiatric damage on him but rather that, having developed psychological and psychiatric problems which he maintains were manifest and ought to have been recognised as such by the defendants, the defendants negligently failed to initiate appropriate treatment for those problems and that it was not until the year 1996 thatthe plaintiff first knew that he had a claim against defendants based on such negligent failure.[Emphasis provided]
74. In so far as the defendants have submitted that the plaintiff conceded that on the 31st May 1994, Dr McCarrick had mentioned PTSD to him by comparing his symptoms to those exhibited by English soldiers he had seen in the Gulf war in Iraq, the plaintiff submits that this should be discounted bearing in mind that at that stage there was no diagnosis of PTSD, and that Dr Breslin’s note at that stage is simply to the effect that Dr McCarrick had mentioned the possibility of PTSD. There is no doubt that at this point there was no diagnosis of PTSD made by the defendants. It had simply been mentioned to the plaintiff as a possibility and that Dr Breslin would be writing to Cdt. Kerr.
75. Bearing in mind the nature of the claim being made by the plaintiff and the claim of negligence made, essentially that there was a failure to properly and in a timely fashion diagnose and treat the plaintiff for PTSD, the plaintiff cannot be expected to have known that there has been a negligent omission to diagnose him earlier, until at least such a diagnosis was made. The negligent act/omission relied upon is the failure to diagnose and treat him sooner than May 1996. The negligence is not that he sustained PTSD as a result of his experiences in the Lebanon. It is the failure to diagnose him and treat him in a timely manner. It follows that what may have been said to him by Dr McCarrick in May 1994 about him possibly having the same symptoms as English soldiers in the Gulf War did not give him requisiterelevantknowledge for the purpose of s. 2 of the 1991 Act. In other words, while s. 2(1)(a) of the Act is satisfied in that he knew that he had a significant injury, he did not as provided in s. 2(1)(c) know “that the injury (i.e.that resulting from the delayed diagnosis and treatment) was attributable in whole or in part to the act or omission which is alleged to constitute negligence …”. Both sub-paragraphs must be satisfied.
76. I am satisfied also that the defendants cannot maintain for the purposes of s. 2(2) of the Act that the plaintiff can reasonably have been expected to have acquired that requisite relevant knowledge for the purpose of s. 2(1) from facts ascertainable by him with the help of medical or other appropriate expert advice, in circumstances where they themselves did not consider that he was suffering from PTSD. That is an unsustainable argument. In any event I am satisfied that he took all reasonable steps for the purposes of s. 2(3)(a).
77. In my view the trial judge’s conclusions on the statute issue are correct and his decision in that regard should be upheld.
(c) Findings of fact unsupported by evidence
78. At the outset of his submissions, counsel for the appellants accepted, as he must, the principles applicable to an appeal to this Court in relation to findings of fact as stated inHay v. O’Grady[1992] 1 I.R. 210. In other words, putting it briefly, he accepts that an appellate court will be bound by findings of fact for which there was credible evidence which the trial judge was entitled to accept in support of those findings, no matter how voluminous and apparently weighty the evidence against them. It is insufficient merely to show that there was other evidence that was either disregarded by the trial judge or that he arguably did not attach sufficient weight to. Equally counsel accepts that an appellate court will be slow to substitute its own inferences to be drawn from primary findings of fact where those inferences depend upon oral evidence, and a different inference has been drawn by the trial judge.
79. In the present case the principles inHay v. O’Gradypresent considerable difficulties for the defendants on appeal. This trial lasted 28 days in the High Court. Whatever criticisms the defendants may have about the interruptions and interventions by the trial judge throughout the trial, as discussed already above, there can be no doubt that he took meticulous care in his lengthy written judgment to set out the evidence of all the witnesses who gave evidence in the most exhaustive detail. Equally he analysed that evidence carefully and expressed clear conclusions.
80. While the defendants’ notice of appeal sets out a great many findings of fact which they submit constitute errors on the part of the trial judge, the submissions to this Court failed to identify specific findings of fact for which there was no evidence, or inferences drawn which were not reasonably open to be drawn from primary findings of fact.
81. It is of course possible in a case and a judgment of this length and complexity, by a close parsing and analysis of the judgment, to isolate some minor imperfection in what was stated by the trial judge, or point to other evidence that appears not to have been had regard to by the trial judge. But that is not really the essential task on an appeal. The appellant, when it comes to a challenge in relation to the factual basis underpinning, as in this case, a finding of negligence against the defendants, must identify significant findings of fact upon which the finding of negligence depends, and establish from the transcript where that is available, that there was no evidence given that supports the trial judge’s conclusions. That has not been done in this case. That is not a criticism It is simply an acknowledgement of the difficulties presented on appeal to an appellant who seeks to undermine findings of primary fact, and/or inferences drawn from those primary facts.
82. The defendants’ overall submission under the heading of appeal is that the trial judge was wrong to make a finding of negligence because the evidence given by the plaintiff was insufficient to ground such a finding. The defendants pointed to the fact that the plaintiff had conceded in his evidence that he had never made complaints on his return from the Lebanon, either to his wife, his brother (who was also in the army, or to army personnel, that he had suffered psychologically from the various incidents to which he was exposed while in the Lebanon, and yet the trial judge found that there was a duty on the defendants to have investigated his mental state, and to have treated him for something about which he had made no complaint.
83. The defendants pointed also to the fact that the plaintiff received treatment for his alcoholism, and that there was evidence that where a patient suffered both from alcoholism and from PTSD, the preferred method of treatment was to address the alcoholism prior to dealing with the PTSD, and that this was what was done for the plaintiff. In such circumstances, it was submitted, the trial judge was wrong to find that the defendants had a duty to treat the plaintiff for PTSD.
84. Those are just two examples chosen by counsel for the appellants to demonstrate what are contended to be errors on the part of the trial judge. His written submissions set forth many examples of findings of fact about which complaint is made. But to a large extent the complaint is that the trial judge disregarded other evidence or that he gave insufficient weight to it without explaining why that other evidence was either being rejected completely, or why other evidence was being preferred.
85. I am completely satisfied that the finding of negligence against the defendants was amply supported by credible evidence that the trial judge was entitled to accept and to prefer to other evidence that he heard. In a trial of such length and a judgment of such length and detail it is too onerous, and indeed unnecessary, to analyse each finding of fact about which complaint is made on this appeal, and identify the evidence which the trial judge was entitled to accept in support of his overall conclusion that the defendants had breached their duty of care owed to the plaintiff by having failed to diagnose and treat his PTSD in a more timely fashion, resulting in the condition becoming chronic. I would reject this ground of appeal.
(d) Quantum of Damages
86. In paragraphs 15 and 16 of the judgment the trial judge emphasised that the plaintiff was not asserting that he should not have been exposed to stress in the Lebanon, or that the Army was responsible for what had happened to him. This was repeated towards the conclusion (at p.168 of the judgment), where the judge said:
“As is elementary the plaintiff is not entitled to compensation because in his work as a soldier in the Lebanon he was exposed to stress.”
87. It is clear therefore that the judge approached the case on the basis that the plaintiff would not have been entitled to damages simply because of exposure to such stress, or simply because he developed post traumatic stress disorder. The claim was based on the contention that the Army had breached its duty of care as an employer to take reasonable care for his health and safety, in that it failed to identify and treat his problems after they had arisen, either before or after they became chronic. Clearly, the trial judge found that the case had been made out.
88. In assessing damages, therefore, the judge was presented with the hypothetical question whether, if that duty had not been breached and the plaintiff had received timely treatment, the consequences to him would have been less severe and/or of shorter duration – in other words, what would have happened if there had not been wrongdoing. In answering a question of this nature, a court does not proceed by making findings on the basis of the balance of probabilities but considers the likelihood of a given scenario and awards damages accordingly. So, for example, where the court is asked to award damages in respect of the risk of future adverse sequelae it is not limited to cases where, on the balance of probabilities, those sequelae will occur. Rather, it assesses the likelihood that they will occur. If it is highly likely, the award will be close to full value. The more unlikely it is, the closer the damages will come to a nominal figure.
89. In the instant case the judge found (at p.169) that, on the medical evidence, the likelihood was that, if the plaintiff had received proper diagnosis, counselling and therapy when he showed clear signs of stress and incipient or actual PTSD (in 1986/87), his condition would have been relieved rapidly and he would not have become subject to the long-running and persistent chronic PTSD that had so adversely affected him. This finding was properly based on evidence and consequently there is no basis for disturbing it.
90. The trial judge stated that he was convinced that the failure to diagnose and treat the plaintiff had allowed his PTSD to become chronic, and had led to him resorting to self-medication with “grievous” results in respect of his working, social and family life. He then considered what might have transpired had the negligence not occurred, and said:
“If there had been appropriate early intervention I am sure that the plaintiff with an understanding that he was not abnormal in his reaction to traumatic stress, would have confronted his illness once identified and would have rehabilitated himself, as he has largely managed to do, since being properly diagnosed, by engaging in steady work as a carpenter in Holland.”
91. In saying this, the judge was referring to three aspects of the case. The first was the state of health of the plaintiff. The judge accepted the evidence that he had shown, on assessment in 2004, a considerable improvement from the earlier severe symptoms. The symptoms had abated considerably although he still suffered flashbacks about once every two months. He was now providing for his wife on a regular basis, despite their ongoing separation.
92. The second aspect mentioned by the judge was the plaintiff’s work history. He had remained in the Army until discharged in 1998. In 1999 he took up work in The Netherlands, and he had a solid record of working there in a responsible position as of the date of the High Court hearing. There was no claim for loss of earnings.
93. The third aspect was the evidence, which was accepted by the trial judge, of the efficacy of early intervention in the prevention and reduction of PTSD.
94. In awarding €270,000 for pain and suffering to date, the trial judge stated that he was taking into account the following matters:
• Physical and psychological suffering;
• Loss of vocation, and loss of vocational enjoyment;
• Separation from wife and family;
• Lack of treatment or explanation as to his underlying condition, causing him to change personality from the viewpoint of his family and wife and making him difficult, irritable, insomniac and subject to self-treatment with alcohol; and
• Loss of employability.
95. The figure for general damages is a very considerable one by any standards. There is no doubt but that the plaintiff’s condition caused him significant suffering, and, on the evidence of his wife, must have been a major contributory factor in the breakdown of his marriage. The finding of the trial judge that there would have been a better outcome over a shorter period, had there been a timely diagnosis and treatment, was justified on the evidence. However, in my view there are two respects in which the award must be considered excessive. Firstly, there was the medical evidence that the plaintiff had shown considerable improvement by 2004, several years before the High Court hearing. Secondly, in circumstances where the plaintiff had never been out of employment, and there was no claim for loss of earnings, it is not clear that there was a proper basis for an award in respect of “loss of vocation” or “loss of employability”.
96. This is not a matter that requires remittal to the High Court for a fresh assessment of damages, and it is open to this Court to substitute its own figure.
97. I would accordingly reduce the figure of €270,000 for pain and suffering up to the date of the trial, on the basis that it takes into account matters that were not factors in the case, and would consider the sum of €150,000 to be more appropriate.
98. The €30,000 for future pain and suffering was stated to include the peril of recurrence. However, there is no finding in respect of the likelihood of such recurrence. Given the medical evidence, this award does not appear to me to be justified. While the plaintiff gave evidence of some ongoing experience of flashbacks, it seems to me that this is a matter that can appropriately be regarded as included in the award of damages for suffering to date.
Conclusion
99. In the circumstances I would dismiss the appeal on all grounds with the exception of the figure awarded in respect of general damages. I would substitute the sum of €150,000 for past and future pain and suffering.
