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1. The Plaintiff herein was born on the 5th March, 1950 and is now 48 years old. He joined the army on the 10th January, 1970.

2. On the 6th November, 1991 in the Glen of Imaal, the Plaintiff was engaged in exercises. A group of soldiers had been marched across the hills. When they reached the Glen they were assigned in groups to dig pits for mortars and also to dig a trench to contain the ammunition. They were under pressure time-wise. The Plaintiff was working with a shovel on a trench which was off the main pit for the mortar gun. Unknown to him a Sergeant Barry was also in the trench working with a pick. The Plaintiff felt a blow from the pick which struck him on the right hand and he sustained a fracture to the base of the fifth metacarpal on the right hand. This was his only injury. The medical reports are agreed.

3. The case is pleaded in negligence. It was an accidental blow but it was negligent. The Plaintiff alleges that Sergeant Barry used the pick in a negligent manner and that that negligence made the Defendants vicariously liable.

4. He is a separated man with eight children. The injury resulted in some irregularity to his hand and there was fear of further surgery. However, this fear has now abated. He still however has a scar on his hand and has some irregularity of the fractured area. He continues in the army and his medical standing in the army has not been affected. He alleges that he is inhibited and has not the same degree of fitness. He cannot do press-ups and this constrains his promotional prospects. He was and is a corporal and is an instructor with a F.C.A. unit. There were four mortar guns and therefore four crews in the Glen of Imaal and each crew was directed to dig pits. Captain Berney and Corporal Jackson were in charge. Everyone had to obey their orders. The Plaintiff was part of a crew consisting of Corporal Kidney, Sergeant Barry and Captain Doherty (who was a lieutenant at the time). His team had almost completed the pit when Captain Berney and Corporal Jackson came down and pointed out that they were behind time and that the work had to be done before darkness. Captain Berney and Corporal Jackson were unhappy with the progress made. Captain Berney informed them that lunch would be up to them shortly but if they were not finished they would not get any lunch. They were trying to get the pit finished, and the trench dug, which was off it. The Plaintiff was shovelling out the clay and all of a sudden he felt a bang on his wrist. Sergeant Barry came over to him and said "sorry". The Plaintiff had been digging with a shovel and the next thing he felt the bang and started screaming. Sergeant Barry was right behind him. He had a pick in his hand. He said it was "his fault". The equipment was provided by the army according to the Plaintiff but he was not given any instructions. Sergeant Barry called an ambulance. He was in extreme pain and was pumping blood. The bone felt like it was sticking out. A dressing was applied and he was put in the ambulance and taken to a room at the Glen of Imaal. He was left sitting there for about four hours. He was in such pain that he tried hitching to Naas Hospital. However, he was too weak and came back to the room. A landrover then took him to the Curragh Hospital and he informed them that he had been given nothing for the pain. He was then admitted to the hospital in Naas and stitches were inserted and he was x-rayed. He had a compound fracture and because of serious swelling they could not operate immediately. On the 15th November he was moved to the Meath Hospital. He has a farm of land and has been unable to manage the usual farmwork since. He has a young lad in to help him.

5. With regards the work being done, the sod had been taken off. The clay underneath was loose enough to shovel out. The trench was about two feet wide and about eight to ten feet long.

6. The course was for mortar instructors only and the Plaintiff admits it was to simulate a war situation. The course was for experienced men. The Plaintiff's Counsel concedes that they were not claiming that the Plaintiff had not sufficient digging or training or experience in this type of trench digging. Sergeant Barry then gave evidence. He did not take the threat that he would get no lunch very seriously. However, he was concerned that they were under great pressure. This was mainly due to the rapid approach of darkness. If night fell before the weapons were aligned, they would not be used. There was a very substantial amount of work to be done within one to one and a half hours. Sergeant Barry thought the stock of the pick had hit him rather than the spike. He had been picking in the two foot wide trench. He said that the accident occurred because the two were then in the small confines at the same time which was too rushed. Ideally, picks should not be used at the same time as shovels. The Plaintiff was in front of Sergeant Barry. He had his back to him and was coming towards him. There were a lot of gun orders being shouted and it was noisy.

7. Captain Berney was the officer in charge of the course. He made a strong impression on the Court. He was organising a tactical exercise to familiarise personnel with an actual operational situation. It was the essence of N.C.O. training. He would expect people doing the course to be able to lead and command troops in operational situations. The personnel were instructed on the dimensions for the pits and how to prepare the pit and trench. He was unaware of anybody ever doing this course without sufficient experience. They would have done a number of courses beforehand. There is always a risk in a job like this. It is the nature of the job. It is essential that there is an element of realism in this type of training, otherwise the course would be of no benefit. There has to be a sense of urgency involved.

8. The sods had been peeled back from the earth and surface to act as camouflage. Captain Berney wanted the guns in place by 5.00 p.m. and the trench where the men would be sleeping would be finished before dark. The course was for experienced students and the minimum rank was corporal. It was a two and a half month course in gun drill and command, mortar platoon and the use of weapons in all possible situations. This exercise was to bring everything to a head. They were to use all they had learned. They would each be commanders in their own way able to lead and control troops. They would be instructed on how to prepare a trench. They would have previous experience from earlier courses. Captain Berney said it was unfortunate that the Plaintiff was injured. He would allow a pickaxe and a shovel to be used at the same time especially in this situation in which this accident occurred. Mr. Peter Johnson, accident engineer, was called and said you should never have two in a trench while one was wielding a pickaxe. Captain Berney was then recalled and he admitted that the Plaintiff should keep out of the way of another man using a pickaxe.

9. On the foregoing facts the Court has to decide two basic points. Firstly, was there a failure of organisation; a failure in the system, a failure of organisation supervision regulation, a failure of the system itself? Secondly, was there negligence on the part of the fellow solider such that it imposes vicarious liability on the Defendants.

10. The following authorities were opened to the Court on behalf of the Plaintiff, namely, Michael Ryan -v- Ireland, The Attorney General and the Minister for Defence , [1989] I.R. 177, The Attorney General -v- Ryan's Care Hire Limited , [1965] I.R. 642, John Dowdall -v- The Minister for Defence, Ireland and the Attorney General , (judgment of Mrs. Justice Denham delivered the 23rd July, 1992) unreported judgments 1992 Vol. 11, Brendan Rohan -v- The Minister for Finance, The Minister for Defence, Ireland and the Attorney General , (judgment of O'Hanlon J. delivered the 19th June, 1992) unreported judgments 1992 Vol. 12. Patricia Moynihan (an infant) suing by her Aunt and next friend Anne Moynihan -v- Mary Moynihan , [1975] I.R. 192. The Defendants' submissions included Ryan -v- Ireland, the Attorney General and The Minister for Finance , Dowdall -v- The Minister for Defence, Ireland and the Attorney General and The Attorney General -v- Ryan's Car Hire . In addition, they relied on O'Connor -v- The Minister for Defence, Ireland and the Attorney General , unreported note of ex-tempore judgment by Johnson J., 13/12/1994, Johnson -v- Gresham Hotel Company Limited , unreported 1986, Vol. 6 at 848, Dalton -v- Frendo , unreported 1977, Vol. 3 at 520A, Mulcahy -v- Ministry of Defence , [1996] QB 732, Dorset Yacht Co. Limited -v- The Home Office , [1970] AC 1004, Marc Rich & Co. A.G. -v- Bishop Rock Marine Company Limited, [1996] 1 AC 211, Groves -v- Commonwealth of Australia , (1982) 150 C.L.R. 113.

11. In the Groves case, 150 C.L.R. 113, Steven J. at p. 134 says:-

12. This Court will happily concur with that statement.

13. It would be ridiculous in time of warfare to impose conditions and restraints such as are provided by the Health and Safety Acts and Regulations. In warfare, one is under no duty of care in tort to another. The question is whether that principle applies also to simulate that kind of training. The case of Michael Ryan -v- Ireland, The Attorney General and The Minister for Defence, [1989] I.R. 177 is certainly an authority for the following propositions:-

14. Finlay C.J., in the course of his judgment at p. 183, made the following observation:-

15. And at another point he said:-

16. The leading authority in this country is Michael Ryan -v- Ireland, The Attorney General and The Minister for Defence , [1989] I.R. 177. It is a decision of the Supreme Court. However, that case was confined to negligence during armed conflict or in the act of war. It is argued that the State's vicarious liability and negligence to serving members of the Defence Forces may be routinely observed in every finding of negligence in every army deafness case and in every case where a solider drives an army vehicle negligently and causes injury to his passengers. In the latter instance of course the Minister for Finance is, by virtue of statute, vicariously liable. The basis in modern jurisprudence for vicarious liability is control: See Patricia Moynihan (an infant) suing by her Aunt and next friend Anne Moynihan -v- Mary Moynihan , [1975] I.R. 192 of which case McMahon and Binchy tells in the 2nd Edition of their Irish Law of Torts (at p. 750):-

17. It would be difficult to imagine a more perfect example of a system of control than that which exists within the Defence Forces. Mr. Justice Kingsmill Moore in the Attorney General -v- Ryan's Car Hire Limited at p. 663 described it in this way:-

18. The Court is satisfied that there was no negligence on the part of Captain Berney or Corporal Jackson. The students were trained men in an extensive course where they could transmit their knowledge to ordinary soldiers and members of the F.C.A.. There was no negligence in the design or execution of the work. The Court does not accept that there was undue pressure on these trained men to cope with a comparatively simple digging operation. As to whether there is a clear distinction between simulated exercises and the "real thing" is a matter for the legislature to decide. Certainly, if there were strict Health and Safety Regulations applicable it would impede training very considerably. Indeed, it would be counterproductive.

19. However, Sergeant Barry was clearly negligent. He got into the trench knowing Mr. Holohan was there working. He was behind Mr. Holohan who was not aware of his existence there. Mr. Holohan he saw was moving backwards towards him. He struck him accidentally with his pick. Perhaps he should not have been there. He was certainly not keeping a proper look out. He did see the Plaintiff as he was reversing towards him. He certainly owed a duty of care to him even in simulated war time conditions.

20. In the particular circumstances of this case, the Defendants are liable for the negligence of Sergeant Barry.

21. The injuries are not too serious. They do not seem to interfere with his promotional or service overseas prospects.

22. I would award £10,000 for pain and suffering to date and £5,000 for pain and suffering in the future. Special damages agreed to date £15,600.