Man injured by plastic bullet fired by soldier in Kilwilkie estate in Lurgan loses £225k compensation claim

The Court of Appeal upheld a previous finding that the British soldier who fired the round which struck Gavin McKenna used reasonable force.

Rejecting a case based on allegations of negligence, Lord Justice McCloskey declared that the claim was unsustainable.

Mr McKenna, then aged 13, was hit in the face by the plastic bullet fired near the staunchly republican Kilwilkie estate in Lurgan in April 1997.

He sued the Ministry of Defence over the permanent eye injury sustained while out gathering wood for a bonfire with two friends.

The MoD argued reasonable force had been deployed after a six-man Royal Irish Regiment foot patrol was targeted by up to 30 other youths hurling stones, bricks and bottles.

A single, aimed baton round was fired at another identified target in the crowd because of the risk to the soldiers’ lives and wellbeing, according to the Army’s account.

With the level of potential damages agreed at £225,000, the case centred on a dispute over liability.

In evidence Mr McKenna recalled being hit by the plastic bullet as he stood up in a field beside the Antrim Road.

He stated that he was unaware of any British Army unit in the area and specifically denied involvement in any public disorder.

The former lance corporal who fired the round said one group of youths came out of the Kilwilkie estate to attack his unit before a second crowd emerged from a wooded area to throw more missiles.

Along with a senior ranking colleague, he became separated from the other four members of their patrol and feared they were going to be completely cut off as part of a planned ambush.

He was ordered to fire the baton gun at another youth 30 metres away with a Celtic scarf over his face and apparently getting ready to throw a rock, the court heard.

He aimed at the target’s legs but could not say who the round struck.

Earlier this year a High Court judge ruled that the two soldiers had come under sustained attack and genuinely feared for their safety.

Mr McKenna was neither the intended target nor part of the crowd advancing towards the soldiers, he accepted, but had been struck on the head while still crouching or hunkering down.

Dismissing the claim for compensation, the judge declared the lance corporal entirely justified in firing the baton round.

Mr McKenna appealed the verdict, claiming the case was wrongly decided on issues about the conflicting accounts and scale of disturbances he played no part in.

The lance corporal should not have missed the alleged rioter in the range he fired at, it was contended.

Counsel for Mr McKenna described him as an innocent victim who “never got the rub of the green” in the action.

He also disputed the soldiers account of coming under bombardment during a full-scale riot, insisting no members of the patrol were injured.

But the Court of Appeal backed findings they had been wearing heavy, protective gear during fast-moving events where firing a baton round had a quelling effect.

Lord Justice McCloskey held that the trial judge had taken “meticulous care and attention” in deciding on the facts.

“He was mindful of both the severity of the plaintiff’s injury and his finding that the plaintiff was an entirely innocent bystander in the events which occurred,” he said.

Rejecting claims of negligence, he added that the soldiers were making “split second decisions in highly fraught circumstances”.

Lord Justice McCloskey confirmed: “This court can identify no legally tenable basis for interfering with the judgment… which is couched in admirably comprehensible and structured terms and clearly the product of careful thought and effort.”