An army corporal who was injured while he and a colleague were digging a trench during a simulated battle exercise brought an action for damages against the Minister for Defence in the High Court yesterday. Cpl Patrick Holohan, of Gurteen, Castlecomer, Co Kilkenny, said he was digging trenches with a shovel in Stranahalay Wood, Glen of Imaal, Co Wicklow, on November 6th, 1991, when he was hit on the wrist with a pickaxe being used by a soldier next to him.
The soldiers were engaged in an exercise carried out in simulated battle conditions, the court heard. It was claimed the soldier had apologised to him. Cpl Holohan said he sustained a crush injury to his right hand and has never regained full power in it. The Minister denies the claims.
Yesterday, Mr Turlough O'Donnell SC, for Cpl Holohan, submitted there was no rule at common law which stated that those responsible for a serving soldier, even in operations involving armed conflict, did not owe him a duty of care.
He argued the liability of the State in respect of the negligence of one soldier causing injury to another was entirely consistent with the principles underlying vicarious liability.
Mr O'Donnell submitted the Army was negligent in the organisation of the training exercise in requiring the trench to be dug at excessive speed and causing two men to be working in dangerously close proximity.
Mr O'Donnell said the court would have to decide if there had been a failure of organisation on the part of the authorities in the regulation and supervision of the exercise, whether was there negligence on the part of a fellow soldier and if so if that imposed vicarious liability on the Army.
Mr Michael O'Kennedy SC, for the Minister for Defence, said the whole purpose of the exercise was to create as far as possible the conditions under which a soldier might find himself in combat.
Counsel said Cpl Holohan claimed they were rushed and much more time should have been allotted to them, but that would have negated the purpose of the exercise.
Mr O'Kennedy said if such exercises were to be judged on the criteria of the workplace in relation to the mistakes or errors of fellow workers, then the capacity of the Army to engage in such exercises would result in the creation of unreasonable new standards that would leave the Army open to vicarious liability.
Mr Justice Kinlen reserved judgment.