Kieran Murphy v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | HH Judge Coe |
| Judgment Date | 11 January 2016 |
| Neutral Citation | [2016] EWHC 0003 (QB),[2016] EWHC 3 (QB) |
| Docket Number | Case No: HQ13X04838 |
| Court | Queen's Bench Division |
| Date | 11 January 2016 |
[2016] EWHC 3 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HHJ Coe QC
(Sitting as a Judge of the High Court)
Case No: HQ13X04838
Mr S Matthewson (instructed by Hodge Jones and Allen LLP) for the Claimant
Mr N Fetto (instructed by DAC Beachcroft Claims Limited) for the Defendant
Hearing dates: 19 th 20 th 21 st and 22 nd October 2015
HH Judge Coe QC:
The Claimant claims damages for personal injury arising from an accident which occurred towards the end of October 2010. He was a serving soldier, a Sapper in the 9 Parachute Squadron RE 23rd Engineer Regiment (Air Assault). He joined the Army on 24th April 2006. He was born on 10 th March 1989 and was 21 years old at the time of the accident. He was posted at Patrol Base Nahidullah in Afghanistan at the time where he was serving with his unit as part of Operation Herrick 13. His trade was electrician. He had become a paratrooper (part of an elite section in the Royal Engineers) in the summer of 2008. At the time of the accident he had done 9 parachute jumps in total of which five were in his initial training.
Whilst in the course of unloading goods vehicles at Patrol Base Nahidullah with colleagues he was involved in moving large heavy rolls of fabric used to create temporary roads. During the course of this he was struck on the head by one of the rolls of fabric thrown by two of his colleagues from one of the vehicles. He suffered injury. Proceedings were issued on 2nd October 2013 and the Defence was entered on 24th March 2014. The Defendant admitted breach of its duty of care in correspondence dated 22 nd September 2014 and judgment for the Claimant was entered on 27th October 2014 with damages and interest to be assessed (TB 1/56). This trial has concerned causation and quantum only, therefore.
The Claimant was initially evacuated to Camp Bastion by helicopter. He was then returned to the UK. He was formally medically discharged from the Army on 19 th September 2013, having left on 7 th June 2013 at the age of 24. It is the Claimant's case that in consequence of this accident he has developed chronic widespread pain ("CWP") also known as fibromyalgia. This condition is long-term and may be permanent. He has ongoing symptoms and some ongoing restrictions on activities.
The Claimant claims damages for pain, suffering loss of amenity, loss of congenial employment, past loss of earnings, past treatment and past care. He also claims for future treatment and future loss of earnings. There is a pleaded pension loss. As I was urged to do, I have adopted the course taken by Dingemans J in Finney v South Devon Healthcare NHS Foundation Trust [2014] EWHC 433 (QB) and "put over" the question of the pension loss. This is because the Claimant has found more settled employment and depending on my findings on the issues here the loss will be between nil and a maximum of approximately £16,000, that is, significantly less than is pleaded.
The Claimant's total pleaded claim amounts to somewhere in the region of £300,000.
The Defendant's position is that the Claimant suffered minor injuries only and made a recovery in a period of a little more than three months. The Defendant denies that the accident and its consequences caused or triggered the CWP. It is not disputed that the Claimant has developed CWP or that his ongoing symptoms are genuine. The Defendant says however that it is not responsible for that condition.
I heard evidence over 3 days and submissions on a fourth. There are five lever arch files of documents and one of authorities. I heard oral evidence from the Claimant, his wife, his mother and father. The evidence of Mr Cairns, a former colleague of the Claimant who is currently working overseas was put in pursuant to a hearsay notice.
Of course, the written statements formed the evidence of the witnesses in chief and the experts confirmed their (lengthy) reports before answering limited questions in relation to specific matters. The orthopaedic and dental experts did not give oral evidence. In the circumstances it has been necessary for me to set out in this judgment (which is also lengthy) the detail of much of the evidence which was not in fact rehearsed during the trial.
In his statement (TB 1/74) the Claimant sets out that he is from a military family. He lived on military bases where his parents were stationed. His parents and uncle were in the Army. His grandfathers were in the Navy and the RAF. The Claimant wished to follow this family tradition. Having left school after his GCSEs, the Claimant attempted to join the Army, but in light of his history of symptoms of irritable bowel syndrome ("IBS") he could not join immediately. He began a plastering apprenticeship, but did not complete it, choosing instead to join the Army as soon as he was able to on 24th April 2006, six weeks after his 17th birthday. Having been selected and trained as a paratrooper in the summer of 2008 and having served on guard duties at royal palaces, the Claimant flew out to Afghanistan with the rest of his regiment on 4th September 2010 on Operation Herrick 13.
It was while on the posting at Patrol Base Nahidullah that he suffered the injury. The rolls of fabric are very heavy apparently weighing 50 to 60 kg. The Claimant gives an account of being hit by the roll on the back of his head and knocked unconscious. He does not know how long he was unconscious for, but when he came round his neck and back hurt. He had lost half of one back tooth, fractured four other teeth and his vision was blurred. That is his account of his physical injuries. He says he was originally treated at the patrol base and after two days he was moved to Camp Bastion where he received physiotherapy. He was told that he had a slipped disc and a whiplash injury in his back. He received physiotherapy and was put on menial tasks. He was taking a great deal of medication. He does not believe that his records accurately reflect the amount of medication he was taking. He remembers finding it very difficult to stay awake. Being keen to return to active duty he was encouraged to do exercises and did so, but found that he could only do them when he was taking a large quantity of painkilling medication. There was no MRI scanner at Camp Bastion. An MRI scan was requested there and so the Claimant came back to the UK in December 2010 in a casualty evacuation plane.
He reported to the medical unit at his camp at Rock Barracks, Woodbridge. He says that his blurred vision continued for about three months after the accident. He said that he also suffered with a loss of bladder control and humming in both ears. He describes being "pushed" into a stores role. He felt ostracised. He had no complete diagnosis and was not having any rehabilitation. He describes being exhausted and was unable to get a decent night's sleep. He began mixing his medication with alcohol. He became aggressive as a side-effect. He considered that he was treated badly by his regiment and having returned home was left to suffer in barracks with no treatment until June 2011. It was only then that he had an MRI scan. He felt that he had to chase for this.
During this period of time he describes being in a great deal of physical and emotional pain and his marriage was under a lot of stress. It is his account that having had the MRI scan he was informed that he had a very serious back injury including whiplash to thoracic vertebrae 1–10, a "bulged" disc between T6 and T7, a slipped disc and degeneration in two discs in the lower region of his back.
He had difficulty walking, but was able to ride a bicycle. Unfortunately he was knocked off his bicycle in September 2011. This caused a temporary worsening of his symptoms although no additional permanent injury.
In October 2011 he had facet joint injections which he considered produced a definite improvement in symptoms although he still had some restriction in his mobility. The pain was reduced however. This improvement had a huge impact on him physically and psychologically. He was referred to the regional rehabilitation unit (RRU). He describes that he took advantage of this and in order to demonstrate that he was physically fit he was trying to push through the pain barrier to do physical training including playing squash. He continued to suffer pain despite the injections, but returned to physical training with the use of painkillers and alcohol. He tried to move to a different unit because of his dissatisfaction with his medical treatment in his own unit.
He was upgraded to medically fully deployable (P2) in February 2012, but then immediately taken off parachute duties due to the risks associated with parachuting with a back injury. He continued in an administrative/stores role being unable to carry out his duties as a combat engineer or electrician.
In the summer of 2012 he was deployed at short notice to provide security at the Olympic Games in London. He said that he was able to do this, but found he began to struggle with his back pain and as the effect of the injections wore off. He put on a lot of weight and was drinking heavily to deal with the pain. He was medically downgraded again in October 2012. He had his second and final steroid injections in March 2013 which again produced an improvement. He was formally discharged on 19th September 2013 at the lowest tier of medical discharge having been permanently downgraded.
He describes how these events had a profound effect on his mental well-being. He was referred to a mental health practitioner in the Army. He had suicidal ideation. There were two occasions when he attempted to hang himself. He felt low and isolated.
In his statement he sets out that he suffered a loss of...
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