High Court: Soldier awarded €80k for injuries sustained when parachute failed to open

About this case:

• Judgment:
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Mr Justice Bernard Barton found that the Minister for Defence owed the soldier a duty of care, and that although the soldier had accepted the inherent risks involved in military training; this could not displace his entitlement to appropriate equipment, information, instructions, and training.

Background

On the day of the accident, Mr Gerard Kirby was the first of six soldiers, known as a ‘stick’, to jump from the helicopter. The Court heard that he made an uneventful exit from the aircraft, and as expected felt a lift as the canopy began to deploy, however, on looking up he saw that it had failed to open fully as the parachute lines were twisted.

Realising that immediate action was necessary, he started to kick his legs - an action which usually frees the tangled lines - but when this failed to free the line he deployed his reserve chute.

There was some controversy between the parties as to whether he had prepared for and had attempted to perform a parachute landing roll (PLR).

As a result of the incident, Mr Kirby suffered a very severe fracture dislocation of his right ankle – an injury which meant that he would no longer be able to serve as front line soldier.

Seeking damages in the High Court for negligent breach of duty, Mr Kirby brought the present proceedings against The Minister for Defence, Ireland, and the Attorney General.

Liability

Mr Kirby’s case was that there had been inexcusable failures on the part of the defendants:

The Defence case was that:

Negligence

Those who volunteer to serve in the Defence Forces accept that in doing so they may be exposed to the risk of death or personal injury, however this does not include the risk of being exposed to injury through negligence or breach of statutory duty (Ryan v. Ireland ILRM 544).

The Minister for Defence owed Mr Kirby a duty to take such care for his safety as was reasonable in the circumstances of their relationship and the activity upon which they were engaged.

While an inevitable risk accompanies anyone who performs a parachute jump, Justice Barton stated that combat parachuting out of an aircraft in a war zone could not be equated with the same exercise undertaken in peacetime conditions as part of a training course on the Curragh.

Notwithstanding that Mr Kirby had been warned about and had accepted the risks involved when he enrolled on the course, he was entitled to expect that he would be provided with such equipment, information, instructions and training as was reasonable and practicable to enable him to perform his first parachute jump safely.

Justice Barton held that the failure to provide lateral drift training and an effective talk down system constituted a breach of that duty, and thus negligence on the part of the Defendants.

Considering all the circumstances of the accident and its consequences for Mr Kirby, Justice Barton stated that to make any finding of contributory negligence on the part of Mr Kirby by failing to prepare for and to perform a PLR would be an unduly harsh and unwarranted result.

Conclusion

Because of the accident, Mr Kirby suffered a high velocity injury which caused a fracture dislocation of the right ankle with disruption of the ligaments.

Justice Barton was satisfied that Mr Kirby was a career soldier who considered the army to be his life, and who will have served 21 years on completion of his current service of enlistment.

Part of his conditions of service require Mr Kirby, like every other solider, to achieve a minimum level of fitness – and Justice Barton accepted that Mr Kirby’s ability to undertake training exercises such as long-distance running, resulted in negative consequences for him in the form of ankle pain and swelling.

Furthermore, Justice Barton stated that the “disappointment felt at being unable to serve as a front-line soldier due to his injuries” was a factor which may be properly considered by the Court when assessing general damages for pain and suffering.

In all the circumstances, Justice Barton held that “a fair and reasonable sum commensurate with the injuries” to compensate Mr Kirby for past pain and suffering to date was €45,000, adding €35,000 for future pain and suffering, the total award ordered by the Court was €80,000.