Gavin McKenna v Ministry of Defence
| Jurisdiction | Northern Ireland |
| Judge | McCloskey LJ |
| Judgment Date | 13 October 2023 |
| Neutral Citation | [2023] NICA 85 |
| Date | 13 October 2023 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2023] NICA 85
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: McC12296
ICOS: 00/016903/A01
Delivered: 13/10/2023
IN HIS MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
GAVIN McKENNA
Plaintiff/Appellant
v
MINISTRY OF DEFENCE
Defendant/Respondent
________
Before: McCloskey LJ, Horner LJ and Huddleston J
________
Mr Patrick Lyttle KC and Mr Conleth Rooney (instructed by Phoenix Law Solicitors) for
the Appellant
Mr David McMillen KC and Mr Joseph Kennedy (instructed by the Crown
Solicitor for Northern Ireland) for the Respondent
________
McCLOSKEY LJ (delivering the judgment of the court)
________
INDEX
Subject Paragraph No
Introduction 1
The plaintiff’s Case 2
The Trial 3-12
The Trial Judge’s Findings 13-26
The Appeal 27-33
Governing Legal Principles 34-35
Our Analysis and Conclusions 36-50
Some Reflections 51-55
Omnibus Conclusion 56
2
Introduction
[1] Gavin McKenna (whom we shall continue to describe as the “plaintiff”)
appeals against the judgment and consequential order of McAlinden J whereby his
claim for damages for personal injuries and special damage – which had been agreed
in the amount of £225,000 – was dismissed.
The plaintiff’s case
[2] The plaintiff’s claim arose out of an incident which occurred at approximately
8.30pm on 26 April 1997 (when aged 13) in a field, or waste ground, adjoining
Antrim Road, Lurgan, Co Armagh. There he was struck by a plastic bullet fired by a
serving soldier as servant or agent of the Ministry of Defence (the “Ministry”). The
plaintiff’s case is that he and other young people were collecting wood at the
location. When he was bending or hunkering down for this purpose, with his back to
the road, his friend shouted out his name and, upon standing up and turning around
towards the road, he was struck by the plastic bullet on the left side of his face.
Following a police investigation the determination of the Director of Public
Prosecutions was that there should be no prosecution of any person. The two causes
of action invoked by the plaintiff are trespass to his person and negligence.
The trial
[3] Whereas the plaintiff’s claim was first intimated by a letter from his solicitors
in March 1999 and the Writ was issued in May 2000, the Statement of Claim was not
served until some nine years later and the trial did not begin until 6 December 2021.
These regrettable delays had certain predictable consequences. In particular, some
witnesses were not available to give evidence for either party, certain material
records of the Ministry were apparently no longer available and one of the recurring
features of the evidence of those who did testify at the trial was impaired
recollection due to the passage of time, with a related reliance on contemporaneous
written statements.
[4] Another consequence of these delays was that no objective or other reliable
evidence of the topography was available. Ultimately, at the appeal stage, this court
received a helpful Google Map which identifies the two main landmarks of the
location in question, namely a railway intersection straddling the Antrim Road and a
petrol station known as Bellevue Garage, on the same road. These two landmarks
are separated by a straight stretch of road measuring 160 metres. Each of them
features in both the oral and documentary evidence adduced at first instance. It will
suffice to note that the transition from the railway intersection to the aforementioned
garage involves proceeding along a straight stretch of roadway in a townward
direction. This is the direction in which the military patrol in question was
advancing at the material time. The area of waste ground where the plaintiff was
struck, and which features repeatedly in the evidence was located to the north
easterly side of this stretch of road. It is now occupied by a residential development.
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