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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
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Royal Courts of Justice Strand, London, WC2A 2LL |
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21 May 2003 |
B e f o r e :
THE HONOURABLE MR JUSTICE OWEN
____________________
Between:
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MULTIPLE CLAIMANTS
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Claimant
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- and -
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THE MINISTRY OF DEFENCE
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Defendant
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____________________
Mr. Stephen Irwin QC, Mr. James Rowley and Mr. Jonathan Richards
(instructed by Linder Myers, Pheonix House, 45 Cross Street, Manchester, M2 4JF)
for the Claimants
Mr. Robert Jay QC, Mr. Jonathon Glasson and Mr. Sam Grodzinski
(instructed by Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London, SW1H 9JS) for the Defendant
Hearing dates : 4 March 2002 to 13 November 2002
____________________
HTML VERSION OF APPROVED JUDGMENT
____________________
Crown Copyright ©
PART II – THE LEAD
CASES
1. Introduction 459
2. Clive
Davies 463
3. Michael
John Kift 482
4. X 493
5. Timothy
Andrew Connor 513
6. William
James Sutherland 527
7. Anthony
Arthur McNally 545
8. John
Michael Flynn 557
9. Anthony
McLarnon 567
10. Malcolm
New 582
11. Melvyn
West 599
12. Julie
Earl 610
13. Joseph
Kelly 618
14. Darren
Mark Lambert 628
15. Sukhinder
Singh Deo 640
16. Gary
John Owen 643
17. Conclusions 660
1. THE
SCOPE OF THE TRIAL OF THE LEAD CASES
1.1
At an early stage of the trial I heard argument as to the scope of the trial
of the lead cases. Subsequent discussions between the parties resulted in a consensus;
and in consequence I ruled by agreement that the trial of the lead actions would
be limited to resolution of issues bearing on the generic issues of detection
and culture. The agreement was embodied in a note prepared by counsel for the
Defendant, amended at my direction, and incorporated in the Defendant’s closing
submission. It is in the following terms –
"The
objective of trying the lead cases is to assist the Court in the resolution of
the generic issues of Detection and Culture.
….
the following do not need to be resolved in the trial of the lead cases:
Adequacy
of clinical care/treatment for the individual once actually or hypothetically
detected
Individual
causation in the sense of –
[1]
Outcome of treatment for the individual once actually or hypothetically detected
[2]
Eventual loss of career, job or career opportunity, whether military or civilian
[3]
Social or marital consequences once actually or hypothetically detected
[4]
The eventual effect on the individual of the presence or absence of any particular
intervention – briefing, debriefing, training, care or treatment etc.
[5]
The condition and prognosis of the lead claimant
Any
quantum issues
…the
following issues will need to be resolved in the trial of the lead cases:
Evidence
illustrative of detection
Evidence
illustrative of culture
Whether
the lead claimant was suffering from any relevant condition during his/her service.
To
the extent that these matters are relevant to the issue of Culture and Detection:
what interventions – whether briefing, debriefing, training, care or treatment
– were as a matter of fact brought about in the individual case.
The
margins of the above and the limits of any other evidence to be at the discretion
of the Court, following submissions in the individual cases, in the absence of
agreement."
1.2 Secondly
on 4 October 2002 the parties made a joint application for an order that the trial
of the lead cases should proceed on paper alone. The memorandum setting out the
agreement between the parties was in the following terms –
"Having
considered the written evidence and documents across the range of lead actions
the parties have come to the view that the evidence in the Lead Cases relevant
to the generic issues could properly be tried on paper. To do so would mean an
enormous saving of cost. It would not be possible to edit the oral evidence piecemeal
by agreement so as to reduce its ambit and so the invitation to the Court from
both parties is that the Lead Actions, so far as is relevant in determining the
generic issue, should be tried on paper alone. In reaching this position the parties
are agreed that they do not see the necessity for oral evidence in any of the
Lead Cases in order for the Court to determine the generic issues.
The
parties are not aware of any conflict of evidence which
[1]
cannot adequately be resolved on consideration of the written evidence, whether
statements or documentation, and
[2]
is relevant to the generic issues, and
[3]
is of sufficient weight and materiality to the generic issues (as opposed to the
issues in the individual cases) to require resolution by oral evidence."
1.3 Having
heard submissions from counsel I was satisfied that the issues to be determined
within the limited scope of the trial of the lead cases could fairly be determined
in that manner, and accordingly made a consent order to that effect to which the
above memorandum was attached.
1.4
Wisniewski v Central Manchester HA
In
many of the lead cases the Defendant has not adduced evidence from those in immediate
command of the Claimant. It is submitted on behalf of the Claimants that in such
cases I should draw inferences adverse to the Defendant from the absence of such
evidence. The submission is based upon the decision of the Court of Appeal Wisniewski
v Central Manchester HA [1998] Lloyds Law Reports Medical 223.
1.5 Wisniewski
was a claim for damages for clinical negligence in which it was alleged that a
hospital, and in particular a named doctor, had negligently failed to monitor
the blood/oxygen of a foetus during labour. The Defendant health authority put
in two unsatisfactory statements from the doctor, and then applied to adduce his
evidence under the Civil Evidence Act on the basis that he was now in Australia.
Both the trial judge and the Court of Appeal were critical of the doctor’s position;
there was clearly a case to answer, his statements were equivocal as they stood;
no adequate explanation had been given for his failure to attend or to give evidence
by some other means. It was held by the Court of Appeal that in such circumstances
it was appropriate to draw adverse inferences against the party who failed to
adduce oral evidence from a key witness. After reviewing the relevant authorities
Brooke LJ said at p240 –
"From
this line of authority I derive the following principles in the context of the
present case:
1.
In certain circumstances a court may be entitled to draw adverse inferences from
the absence or silence of a witness who might be expected to have material evidence
to give on an issue in an action.
2.
If a court is willing to draw such inferences they may go to strengthen the evidence
adduced on that issue by the other party or weaken the evidence, if any, adduced
by the party who might reasonably have been expected to call the witness.
3.
There must, however, have been some evidence, however weak, adduced by the former
on the matter in question before the court is entitled to draw the desired inference;
in other words, there must be a case to answer on that issue.
4.
If the reason for the witness’s absence or silence satisfies the court then no
such adverse inference may be drawn. If, on the other hand, there is some credible
explanation given, even if it is not wholly satisfactory, the potentially detrimental
effect of his/her absence or silence may be reduced or nullified."
1.6 Counsel
for the MoD contends that the Claimants’ reliance upon Wisniewski is misplaced
for two principal reasons. First it is submitted that the immediate commanders
have given contemporaneous reports on each Claimant which appear in the Service
Records, that in many cases a considerable period of time has elapsed since such
reports were written, and that if located and called, an individual commander
would in practice be unlikely to be able to do more than confirm the content of
their entries in the service record. Secondly it is submitted that although the
MoD have been able to track down immediate commanders in some cases, particularly
in cases in which the events in question are more recent, in other cases very
considerable difficulties have been experienced in identifying and locating such
individuals. In that context the MoD refer to the interlocutory exchanges on the
issue, and in particular to the order made by the Masters assigned to this litigation
on 13 December 2000 in which they ordered that the Lead Claimants should identify,
as far as possible, their Company Commanders, Platoon Commanders and Section Commanders
during the relevant periods.
1.7 There
is some force in the first of the Defendant’s submissions. It is of course possible
that an individual commander may have a clear recollection of an individual soldier;
but I suspect that in most cases they would not be able to do more than to confirm
the contents of the service record. Secondly and more importantly I am satisfied
that there is a credible explanation for the failure to serve witness statements
from all immediate commanders. The Defendant has made considerable efforts to
identify the individuals in question. Given the nature of the task the failure
to identify and/or locate the individuals in question is readily understandable.
Thus the situation is very different from that in Wisniewski in which the Court
of Appeal clearly thought that the defence was engaged upon a tactical manoeuvre
to avoid a critical witness giving oral evidence and being exposed to cross-examination.
I do not therefore consider that the principles set out by Brooke LJ are of direct
application to these cases.
2 CLIVE
DAVIES
2.1 Clive
Davies was born on 29 November 1963. He enlisted in the Welsh Guards on 4 June
1980, and served until his discharge on 6 November 1994 in the rank of Lance Sergeant.
On 12 May 1982 he was deployed with the 1st Battalion Welsh Guards
to Operation Corporate. He was then 18 years of age.
2.2 He
was aboard the Sir Galahad when it was attacked by Argentine aircraft on 8 June
1982. When the attack came he was awaiting disembarkation on the tank deck. That
area of the ship was engulfed in a fire ball; and many of his colleagues in close
proximity to him were killed or severely injured. Remarkably he escaped physical
injury. The fire spread rapidly below decks causing secondary explosions. During
the evacuation he encountered friends who were mutilated and severely burnt. The
horror of the experience is graphically described in his witness statement.
2.3 The
claim is advanced upon the basis that he suffered an acute stress reaction as
a result of the attack on the Sir Galahad and its consequences, followed by a
post traumatic stress disorder with marked alcohol dependency and a major depressive
disorder, co-morbid disorders secondary to the PTSD. He subsequently served two
tours of duty in Northern Ireland, a four month tour in 1986 and from March 1992
to September 1994, and claims that during each of those tours he was exposed to
traumatic events that served to exacerbate his condition.
2.4 It
is common ground that Mr. Davies has suffered from PTSD since late 1982, although
there is an issue between the experts as to the degree to which his symptoms have
fluctuated. Accordingly the issue to be determined within the limited scope of
this trial is whether his condition should have been detected before his discharge
from the army in November 1994.
2.5 Mr.
Davies continued to serve in the Welsh Guards for over 12 years after the Falklands
War. In September 1986 he was promoted Lance Corporal and in June 1990 Lance Sergeant.
He acknowledges that throughout his period of service he sought to hide his true
condition, in particular when he was seen by medical officers, in order to preserve
his career in the army. But it is submitted on his behalf that the changes in
his behaviour following the Falklands War ought to have alerted his superiors
to the fact that he had a problem which, if properly investigated, would have
revealed that he was suffering from PTSD and/or associated conditions. His case
is that his heavy drinking and aggressive and violent behaviour when in drink
in the years following the Falklands War must have been known to his superior
officers, and should have been recognized as indicative of a psychiatric problem
related to his experiences in the Falklands. It is further submitted on his behalf
that the issue of detection in this, as in other lead cases, is closely related
to that of the prevailing culture within the military, in that he sought to conceal
his condition because he thought that to reveal it would to be to jeopardize his
future in the army, and would expose him to ridicule from his fellow soldiers.
2.6 There
are three sources of evidence as to his condition during the 12 years that he
served after the Falklands War, his medical records, his Soldiers Record of Service
and personnel (P) file, and the thirdly the witness statements submitted in support
of his claim and on behalf of the MoD.
2.7 The
Medical Records
When
Mr. Davies was on leave in December 1982 his mother was extremely concerned about
his condition. She says that he was drinking heavily, was argumentative, and was
not sleeping. She insisted that he see the family GP, Dr Davies. Dr Davies immediately
arranged for a home visit by a consultant psychiatrist who saw the Claimant on
the following day. The psychiatrist, Dr Jones, reported to the GP on 30 December
1982. Mr. Davies had told him that he felt reasonably well for several months
after the attack on the Sir Galahad, but had been severely upset by presentations
given to him by the local council and by seeing television programs about the
loss of the Sir Galahad. Dr Jones concluded
"This
young man has fairly classical post-traumatic neurosis, occurring after exceptional
severe stress in a person of what we must call normal personality… He also demonstrates
the extreme guilt described as the survivors syndrome after the second world war,
when concentration camp survivors found it hard to come to terms with their lucky
survival when all their friends and relatives had been wiped out. He finds it
especially hard to adjust to his totally uninjured state when people next to him
were killed or badly burned, and feels especially bitter about his survival as
a single man when his friend next to him was killed leaving a wife and young child
whom he has visited.
There
are also elements of a pathological grief reaction as he feels it is not a manly
thing to break down and cry over his lost friends, and he has the delayed bereavement
reaction found in these circumstances. He is, at present, using alcohol as a sedative,
and a lot of his vomiting and weight loss can be attributed to his taking 9 pints
a day plus several measures of spirits. "
Dr
Jones went on to say that treatment was going to be difficult as Mr. Davies was
insisting on going back to his barracks on 2 January 1983.
2.8 The
copy of that letter within the general practitioners records is endorsed in handwriting
at its head "copy sent to medical center (sic) Welsh Battalion."
A copy endorsed "with compliments of Dr Ahmed" is to be found
within Mr. Davies army records, but in his P file and not in his medical records.
2.9 His
F Med 4 shows that he was seen by the MO on four occasions in early 1983, on 6
January, 11 January, 13 January, and 1 February. The MO’s note for
6 January reads as follows -
"2/12
"Nerves" Difficulty with concentration – difficulty sleeping, wakes
during the night. No lethargy ? or drowsiness today. Relates "nerves"
to Falklands situation. He was only one in platoon uninjured, but in fact symptoms
only present 1/12 five months after leaving Falklands. Some (indecipherable) around
Christmas in Wales. Admits to no family or girl-friend problems. Says he likes
army and has five more years to do. Seen by G-P in Wales – no notes. Given Fe
tonic. Requested three wishes – could think of nothing he wanted to improve his
life – big grin! Says he is fed up and depressed – does not seem so. He seems
somewhat anxious. Eventually said he would like everyone "off his back".
No battalion problem elicited. Discussions with Coy Commander to see own RMO and
liase(?) with Coy Commander. "
That
note gives no indication that the MO had seen the copy letter from the psychiatrist
to the GP. Furthermore Mr. Davies does not suggest that he told the MO that he
had been seen by a psychiatrist. The subsequent notes each record an improvement
in his condition. The Claimant says that he saw different MO’s on each occasion;
but he would appear to be mistaken as the handwriting of each note is identical.
More importantly he says that he deliberately misled the MO when saying that his
condition had improved. The MO’s note for the last of that sequence of consultations
reads -
"Much
improved today. A different person. Sleeping much better. Working well. Made lots
of friends in his platoon. Tends not to wander off anymore by himself. Will continue
to review him."
2.10 On
18 April 1983 the MO certified him as fit for a parachuting course. The only other
entries of note in the medical records are in July and September 1984 when he
complained of gastric pain, entries that it is submitted on his behalf were "highly
suggestive of alcohol abuse and nicotine abuse and the earlier post traumatic
difficulties."
2.11 Finally
nothing remarkable was noted at his discharge PULHEEMS. But five days after his
discharge he attended a GP who made an immediate diagnosis of post traumatic syndrome
related to the Falklands War and referred him for a psychiatric opinion.
2.12 The
Service Records
The
Claimant’s work record in the battalion was for the most part good. His annual
report for the year following the Falklands War dated 19 July 1983 said -
"There
does not seem to be much change since last year. He still makes quiet progress.
He is still helpful and hard working but without that spark of initiative. I trust
that his course of heavy duty driving will act as the spur he requires."
That
for 22 May 1984 said -
"still
seems to be a very quiet and shy person although now that he is a driver his progress
has increased somewhat. His turnout in barracks is sometimes very low but when
he wants to he can have a very high standard. In the field he tries hard although
forgetfulness seems to set in during a long exercise. He has got a very good sense
of humour and when he comes out of his shell I’m sure that his usefulness to the
platoon will increase tremendously."
2.13 The
report for 15 March 1985 was relatively poor. It covered the period during which
the Claimant committed an assault on two Royal Artillery gunners for which he
was subsequently court martialed. The report reads -
"(Davies)
has rather let himself down this year which, considering his capability when he
does try, is rather sad to see. Being a driver has been a very responsible job
but he did not pull his weight at the start, often being rather idle and forgetful.
Now however he is beginning to get to grips with his vehicle. He is still rather
quiet and his general attitude and dress has been rather slack at times. I know
if he tries he has the potential to be a real asset to the platoon."
2.14 He
appeared before the court martial on 8 June 1985 and was sentenced to detention
for 112 days, a sentence reduced on mitigation to 84 days. On the same occasion
he was dealt with for having gone absent without leave for 14 days in May 1985
in order to attend the birth of his first child.
2.15 In
September 1986 he was promoted to Lance Corporal and in June 1990 to Lance Sergeant.
2.16 In
the course of the Claimant’s examination by Professor Fahy he said that –
"…he
had a relatively good period during the mid-to-late 1980’s, but had problems in
1989 and again during his last two years in the Army in Northern Ireland."
That
reflects the content of the annual reports which from the year ending 21 April
1986 were consistently positive. Two examples will suffice –
"21 April
1986 – Davies is one of the more mature Guardsmen in the platoon…He has started
off well in Ireland, proving to be reliable and hardworking…He is at last beginning
to come out of his shell and is more outward going. A very pleasing improvement
which will be rewarded with a promotion course at the end of this year. Well done."
"11
November 1992 – L/Sgt Davies has been a team and multiple leader during the latter
half of this report – since Dec 91. During that time he has gained in stature
and confidence considerably. He now has a wealth of experience and is a valued
member of the Company in Northern Ireland. For much of the time he has been standing
in as Platoon Sergeant. He has been well up to the job. L/Sgt Davies falsely believes
that he has reached his ceiling & would be unable to complete the PSBC (Platoon
Sergeants Battle Course), due to lack of fitness. The weakness boils down to a
lack of ambition. I believe that he has the ability to be a substantive sergeant
and pass PSBC if he wishes. L/Sgt Davies is applying for redundancy with a view
to joining a private family business. He deserves every success."
2.17 The
Witness Statements
The
Claimant gives a graphic account of the return voyage from the Falkland Islands
to Ascension Island aboard the St Edmond. He says that there was widespread heavy
drinking and fighting. There is some support for that evidence in the witness
statements from his colleagues. But Lieutenant Colonel Davies, then RSM of the
1st Battalion Welsh Guards, says that for much of the voyage the vessel
was battered by force ten gales and that men kept to their bunks, and secondly
that the bar was only open in the evening from 7.00 pm to 10.00 pm. He says that
"There was the odd fight which was only to be expected between the Paras
and the Guards". His evidence as to the sea conditions is supported
by the statement of Mark Baker who says that during the two to three days of the
journey to Ascension Islands he kept to himself and barely saw anybody and that
"a lot of us were feeling seasick during the journey to the Ascension
Islands." I suspect that there was some heavy drinking on the trip. That
was to be expected. But in the light of the evidence as to the sea conditions
I consider that the Claimant has overstated the case as to the behaviour aboard
the St Edmund. However I do not consider that the issue of what happened on the
return voyage has any great bearing on either the generic issue of detection or
of the issue of detection in Mr. Davies’ case.
2.18 As
to the period following the return to the UK, a rather different picture of the
Claimant from that revealed in his service record emerges from the witness statements
served in support of the claim. The Claimant says that he began drinking very
heavily after the Falklands War and was regularly involved in fights. He says
that he spoke to his sergeant major, Sergeant Major Neck, on his return to barracks
in January 1983, and that Sergeant Major Neck told him that he had spoken to Mr.
Davies’ mother who had explained that he had been examined by a psychiatrist and
that she was very concerned about his emotional state. Sergeant Major Neck has
no recollection of speaking to Mr Davies’ mother. But the Sergeant Major sought
to reassure him saying that the battalion would look after him and that he would
get him examined by a medical officer who might refer him to a psychiatrist. The
Claimant says that he told Sergeant Major Neck that he did not want to see another
psychiatrist. There was a further episode involving Sergeant Major Neck on the
first anniversary of the attack on the Sir Galahad, 8 June 1983. A number of soldiers
who had served in the Falkland campaign wanted to hold a formal ceremony to commemorate
their dead colleagues. Their request to do so was rejected, a rejection which
provoked a strong reaction. Mr. Davies and two of his colleagues painted a white
bed sheet with the words "we shall remember" and hoisted it on
the regimental flagpole. Mr. Davies involvement was revealed by paint on his hands
and he was disciplined by Sergeant Major Neck; but it appears that the matter
did not go any further.
2.19 In
July 1983 Mr. Davies was sent on a tour of duty to West Germany where he spent
most of the following 5 years. He says that his alcohol consumption increased
dramatically in Germany, and that he developed a reputation as a heavy drinker
and troublemaker.
2.20 In
late 1983 he began a relationship with the woman who later became his wife. She
has made a witness statement in which she describes the problems in their relationship
caused by his drinking and the attempts that she made to control it. She also
attempted to persuade him to see the MO about his sleeping problems, mood swings
and nightmares. But he refused saying that it would be impossible to stay in the
army if he ever told anyone about his emotional problems – "he said he
would be teased by his colleagues and his superiors would pressurise him to leave
the army." His twin sister also gave evidence that the Claimant was very
worried that seeing a psychiatrist would end his career in the army. She said
that he wanted to stay in the army because it was the only career that he knew
and because he enjoyed the company of his close colleagues. She adds that it would
have been a great risk for him to leave the army given the high unemployment in
South Wales at the time.
2.21 The
Claimant’s evidence as to his heavy drinking and fighting when in Germany was
corroborated by James Coughlan, Mark Baker, Michael Kift, Graham Evans, and Christopher
Lewis, all of whom served with him in the Welsh Guards. Their evidence is encapsulated
in two paragraphs of the statement from Mr. Lewis –
"35.
By 1984 to 1985 Clive’s reputation was very bad. Welsh Guard soldiers would be
caught up in fights in bars in town on at least one occasion every week. Clive
would always be the first person to be blamed for these incidences (sic), even
if he had not been involved. This goes to show how bad his reputation was at the
time.
36.
Clive was not pulled up about his bad behaviour by our superior officers as they
were trying to ignore the Falklands and the way it had affected the Welsh Guards.
There was positive efforts by superior officers, many of whom by now had not served
with us in the Falklands and gone through the same experiences, to try and put
the Falklands well and truly behind us…we were positively discouraged from talking
about the Falklands amongst ourselves and our superior officers."
2.22 I
am satisfied that there was a marked change in the Claimant from late 1982. I
have no doubt that during his periods of service in Germany he was drinking heavily
and when in drink was aggressive and on occasions violent. I am also satisfied
that his behaviour must have been known to his immediate superiors and that he
did indeed gain a reputation as a drinker and fighter. Matters came to a head
with his court martial in June 1985 in relation to his assault on two members
of another regiment in a bar in September 1984. But his release from detention
appeared to mark a change in his behaviour. His son had been born a month before
the court martial; and he married his partner in August 1985. He says himself
that he then began to put more effort into his work as he had a family to support.
That is demonstrated by his service record, and accords with the history that
he gave to Professor Fahy.
2.23 The
Expert Evidence
Dr
Deahl, who reported for the Claimant, concluded his report dated 4 November 1998
in the following terms -
"Mr.
Davies suffers from severe post-traumatic stress disorder (PTSD) as defined in…ICD
10. This has arisen as a direct result of his military service in the Falklands
conflict and I note this is accepted by the War Pensions Agency in their adjudication
of Mr. Davies’ pension claim. Mr. Davies has also suffered from marked alcohol
dependency and a major depressive disorder which are common concomitants of PTSD."
In
a further report dated 28 January 2002 Dr Deahl expressed the view that Mr. Davies
has suffered from PTSD continually since 1982.
2.24 The
Claimant also served a report from Dr Bisson, a lecturer in psychological medicine
at the University of Wales College of Medicine. Dr Bisson worked as a psychiatrist
in the army between 1989 and 1983, and during that period treated soldiers with
PTSD on a regular basis. After leaving the army he founded a clinic for the treatment
of PTSD, and now treats sufferers of the condition from a wide variety of traumatic
incidents including military combat. He too concludes that as a result of the
Falklands War Mr. Davies developed PTSD with associated depression and an alcohol
dependence disorder. He says that Mr. Davies has suffered "…with symptoms
of PTSD, depression and alcohol dependence for the past 13 years despite functioning
very well at times."
2.25 Mr.
Davies was examined on behalf of the MOD by Dr Peter L. Jenkins, and by Professor
Fahy. Dr Jenkins reported on 31 May 2001. He considers that -
"9.1
The Claimant continues to suffer from a post traumatic stress disorder which is
chronic and of moderate severity.
9.2
The Claimant continues to suffer from a major depressive disorder of moderate
severity, currently maintained in partial remission on medication as prescribed.
9.3
The cause of his post traumatic stress disorder symptoms is his exposure to combat.
The cause of his depressive illness, which is of marked significance and which
appears to be the most substantial factor impairing his performance, is less certain.
9.4
Depression is caused by factors which are biological, psychological and social
in nature and notwithstanding the fact that this man may have had symptoms of
post traumatic stress disorder between the time of the Falklands and his discharge
from the military, his level of function was good before discharge.
9.5
It is my opinion that the cause of the depressive illness which has exacerbated
his difficulties is most probably his discharge from the military and failure
to adjust adequately to civilian life.
9.8
…the symptoms described are consistent with an acute stress reaction in the immediate
aftermath (of exposure to combat in the Falkland Islands). His symptoms appear
to have ameliorated but then become worse in late 1982 when they could be described
as an adjustment disorder or acute post traumatic stress disorder persisting for
several months."
2.26 Professor
Fahy reported on 11 February 2002. His report contains a close analysis of the
military records and of the witness statements. He finds it difficult to reconcile
the Claimant’s service record with a history of disabling PTSD, but says –
"Of
course it is possible to suffer from PTSD and to be able to work, but the diagnostic
criteria highlight the importance of impairment in social or occupational functioning
as a constituent of the syndrome. It seems unlikely to me that Mr. Davies suffered
from more than mild PTSD from 1985 until mid-1994."
He
goes on to say that the medical records suggest that his condition "…may
have deteriorated in the months prior to leaving the Army".
He
considers that there was further deterioration after leaving the army, and that
since his discharge the records reveal "prominent anxiety and depressive
symptoms compatible with a diagnosis of moderate or even severe PTSD".
2.27 I
am satisfied that the Claimant was suffering from PTSD from late 1982; but the
important issue between the experts is the degree of severity of his symptoms.
Dr Deahl says in his report dated 4 November 1998 that the symptoms that the Claimant
experienced in the immediate aftermath of the Falklands War "…gradually
diminished in frequency and intensity until 1989 when preceding a tour of Northern
Ireland duty in 1989 his symptoms dramatically deteriorated". Dr Bisson
also recorded a history of deterioration in 1989. But neither Dr Jenkins nor Professor
Fahy record the Claimant as having given an account of a sudden and marked deterioration
in 1989; and it is Professor Fahy’s opinion that the level of functioning demonstrated
by the service record makes it unlikely that he was experiencing other than mild
PTSD from his release from detention until his condition began to deteriorate
towards the end of his service. I find Professor Fahy’s analysis persuasive; but
it has to be borne in mind that in this as in other lead cases the evidence shows
that an individual suffering from a post traumatic stress disorder may present
a very different face to his family and close friends than to his superiors, particularly
when, as in the case of Mr. Davies, he is determined not to reveal any signs of
psychological problems to those in authority.
2.28 Conclusions
There
are two issues to be considered first whether his condition ought to have been
detected by the Army Medical Services, and secondly whether his superior officers
ought to have detected or suspected that he was suffering from a psychiatric disorder.
2.29 As
to the Army Medical Services it is necessary to consider whether his condition
should have been detected -
a.
by the MOs who saw him in January and February 1983,
b.
by the MOs who saw him in July and September 1984,
c.
at his pre court martial medical,
d.
at his discharge medical.
2.30 As
to (a) and on the premise that the medical notes are an accurate reflection of
what the Claimant told the MOs on each occasion that he was seen, they indicate
that an appropriate course was taken by the MOs. As Professor Fahy puts it –
"It
is difficult for me to imagine how a doctor could be viewed as negligent if he
provided treatment and support to a patient when they reported symptoms, then
followed the patient up until they said that they were no longer experiencing
symptoms. There is no sensible case for referring patients who claim that they
are asymptomatic to a specialist for further evaluation or treatment."
The
Claimant gives a somewhat different account of the consultations; but I regard
the contemporary record as reliable.
2.31 But
there is another issue that is critical to the conclusions to be drawn from the
consultations in early 1983. It seems clear that the letter from the psychiatrist
to whom Mr. Davies was referred by his family GP in December 1982, was not seen
by the MOs who treated him in January-April 1983. Had they seen the letter the
overwhelming probability is that they would have raised the matter with the Claimant
and made some reference to it in the medical records. It is reasonable to assume
that the copy eventually found in the Claimant’s P file was sent by Dr Ahmed shortly
after its receipt by him, i.e. in early January 1983. The letter should unquestionably
have been placed in the Claimant’s medical records, and should have been by an
MO at some stage during the series of consultations in early 1983. Accordingly
I have to conclude that there was a negligent breakdown in the system for dealing
with correspondence addressed to "The Medical Center (sic) Welsh Battalion".
Had that breakdown not occurred it is probable that the Claimant would have
been referred for a psychiatric opinion, and his condition diagnosed in 1983.
2.32 As
to (b) it is submitted on behalf of the Claimant that his complaints of gastric
pain in 1984 ought to have led the MOs to have suspected alcohol abuse and post
traumatic difficulties. I do not agree. The Claimant was treated for the presenting
symptoms; and it is his evidence that by this stage he was doing his best to conceal
his psychological problems from his superiors and army doctors alike. In those
circumstances the treating MOs are not to be criticised for failing to suspect
an underlying psychiatric disorder.
2.33 As
to (c) the pre-court martial medical, it is arguable that in the light of his
history as a survivor of the Sir Galahad, a connection should have been made between
the commission of offences of violence and his experiences in the Falklands. But
again there is no evidence to suggest that the Claimant said anything to indicate
that he was suffering from psychological problems. On the contrary he was determined
to conceal his condition. The issue is academic given my finding in relation to
(a), but on balance I am not persuaded that the connection should then have been
made. The evidence in this trial has shown that heavy drinking and fighting was
relatively commonplace amongst off-duty soldiers, particular those serving in
Germany. I do not consider that there was a culpable want of care in failing to
suspect a psychiatric disorder at that stage in the absence of any complaint of
symptoms that might suggest such a condition.
2.34 As
to (d) the most compelling argument advanced on his behalf is that his visit to
a civilian GP a matter of days after his discharge with a normal PULHEEMS resulted
in an immediate diagnosis of a psychiatric disorder and a referral to a psychiatrist.
The letter of referral said inter alia –
"This
man has just come out of the Army. Ten years ago he had a problem with aggression
especially when inebriated. This behaviour pattern altered after joining the Army
and marrying. He is now suffering post-traumatic syndrome since serving in the
Falklands in 1982. He has nightmares, periods of deep depression and again is
losing control of his temper."
2.35 Save
for question 37 in the discharge F Med 1 "Nervous breakdown or illness",
to which the recorded answer was negative, the Claimant does not appear to have
been asked about his psychological condition at the discharge medical, nor does
he suggest that he volunteered any information about it. His concern was simply
to bring his military service to a conclusion as quickly as possible. In those
circumstances I do not consider that the Army Medical Services were at fault in
failing to detect his condition. It is stating the obvious that in relation to
a psychological condition a clinician is largely dependent upon what he is told
by his patient. There will of course be circumstances when it is necessary for
the clinician to probe. But there is no evidence to suggest that at that stage
there was anything to alert the MO who conducted the discharge medical to the
possibility of a psychiatric disorder.
2.36 I
turn then to the question of whether the Claimant’s superior officers ought to
have detected or suspected that he was suffering from a psychiatric disorder.
2.37 This
issue can conveniently be addressed by dividing the Claimant’s service following
the Falklands War into three periods, the period of about a year between his return
to the UK and his posting to Germany in July 1983, July 1983 to his discharge
from detention in September 1985, and the period from his discharge from detention
until his discharge from the army in November 1994. But there is a factor of central
importance that applies to each period. It is the Claimant’s evidence, reinforced
by that of his wife and his twin sister that he was determined not to give any
indication of any psychological distress or disorder to his superior officers.
2.38 As
to the first period, I accept the evidence from the Claimant and from his mother
that in January 1983 Sergeant Major Neck was alerted to the problems that the
Claimant had experienced over the Christmas leave. Mrs Davies says in terms that
she told Sergeant Major Neck that the Claimant had seen a psychiatrist, but she
says that the Sergeant Major told her that he would "look out for"
the Claimant and would ensure that he was seen by an MO. I have already referred
to the relevant part of the Claimant’s evidence. He says that he told Sergeant
Major Neck that he did not want to see a psychiatrist. But the important point
is that the Claimant did in fact see the MO on a number of occasions at that point.
I do not consider that was anything further that could or should have been done
by Sergeant Major Neck at that stage.
2.39 I
accept that the Claimant was drinking heavily with a close group of friends who
had served with him in the Falklands during this period, but I do not consider
that such drinking ought of itself to have given rise to a suspicion that the
Claimant was suffering from a psychiatric disorder. His annual report for the
relevant period demonstrates that he was able to maintain an adequate performance
at work.
2.40 The
incident in which the Claimant was involved with two others on the anniversary
of the attack on the Sir Galahad is evidence of their depth of feeling at the
loss of their comrades. It is not in my judgment indicative of psychiatric disorder.
2.41 As
to the second period, I am satisfied that the Claimant’s behaviour in a social
context deteriorated further in that he was drinking more heavily and gained a
reputation as a drinker and a fighter. The question is whether that should have
given rise to a suspicion on the part of his superior officers that he was suffering
from a psychiatric disorder that required referral to the MO. But again his annual
reports do not reflect the picture of a man suffering from such a disorder, and
I am not persuaded that his superior officers ought to have suspected that that
was the case. The evidence before me shows that heavy drinking was widespread
amongst troops stationed in Germany, and that the abuse of alcohol led to aggressive
behaviour and to fights. I am satisfied that the Claimant was but one of a number
behaving in such a manner.
2.42 It
seems clear that to some extent the Claimant’s superiors turned a blind eye to
such behaviour on the part of Falklands’ veterans. That reflects a sympathetic
and protective approach to man management by NCOs. But it follows that there was
a perception that such behaviour was linked to the experiences that they had undergone.
The horror of the Sir Galahad must have left its mark upon all who were aboard
the ship when it was attacked, and on those who witnessed the attack from the
shore. There was clearly a recognition that exposure to such experiences would
leave its mark; but it is equally clear that such changes were not regarded as
indicative of mental illness.
2.43 As
to the third period I have already indicated that it is clear from his service
record and from the Claimant’s own evidence that his release from detention in
1985 marked a change in the Claimant. Thereafter his annual reports were positive.
He gained promotion and continued to do reasonably well. Furthermore his symptoms
were in any event mild during this period. In my judgment there was no fault on
the part of his superior officers in failing to suspect or detect his condition.
2.44 Culture
The
evidence in this case clearly illustrates that the prevailing culture within the
army or within a unit is a complex concept. An individual’s perspective is strongly
influenced by his position within the military hierarchy. The Claimant is adamant
that he would not have made any complaint of psychological problems as he did
not wish to reveal what he perceived to be a weakness and to expose himself to
ridicule. He says, and I accept, that so far as he was concerned his superiors
had a negative attitude towards people suffering from psychological problems.
2.45 As
to the NCOs the evidence demonstrates that there was an awareness that exposure
to battle and in particular to events such as the sinking of the Sir Galahad,
could leave their mark and that they needed to look out for men who had been exposed
to such experiences. But the evidence suggests that they dealt with problem behaviour
by such individuals by allowing them a greater latitude. It did not lead them
to suspect psychiatric disorder.
2.46 The
attitude to such problems from those at a much higher level in the military hierarchy
is exemplified by the evidence of Lt General Sir Christopher Drewry, who took
over command of the Welsh Guards in 1985 having been Company Commander of 2 Company
in the Falklands. He says in his statement –
"It
is entirely wrong to suggest that the Battalion was insensitive to those suffering
with psychological difficulties. All of the senior officers had operational experience
from several tours in Northern Ireland and most of the Company Commanders were
graduates of the Staff College where they had received instruction in the realities
of war. Everyone was conscious that you could not possibly go through the experiences
of war without being affected by it. We were not therefore surprised to find individuals
suffering psychologically on our return. I can recall the case of one guardsman
in my company who was one of the few who had been promoted in the field during
the Falklands campaign. He was promoted to Lance Corporal there and served with
considerable distinction. When he returned from post operational leave it became
clear that he had lost his former confidence and was showing signs of depression.
I do not now remember how he was referred for psychiatric examination but I assume
that he was referred in the first instance to the Battalion’s Regimental Medical
Officer who would have recommended to the Commanding Officer that he was seen
by an Army psychiatrist. I visited him on several occasions in the military hospital
at Woolwich where I believe he spent three to four months. Unfortunately he was
unable to come to terms with the trauma he had suffered and after treatment he
was eventually discharged from the Army on the grounds that he was unfit to continue
his service. I have had no contact with this soldier since his discharge. However,
I felt that we had been quick to recognise his difficulties and supportive to
him whilst he was in hospital.
I
have heard the suggestion that has been made by some of the Claimants that the
view of the Regiment was that "if there was nothing to put a bandage on,
then there was nothing wrong". I am appalled by that suggestion. In my experience
all officers took their responsibility for their soldiers extremely seriously
and carried it out highly conscientiously. "
2.47 In
this context it is also necessary to consider the evidence as to the speech made
by Lt Colonel Powell who took over command of the 1st Battalion of
the Welsh Guards from Brigadier Rickett in October 1982. The Claimant relies upon
the content of the speech as illustrative of the culture within the battalion.
2.48 It
appears that Lt. Co. Powell addressed the battalion en masse both in October 1982
and in January of 1983. There is an overwhelming body of evidence from Welsh Guards
that in the course of one or other of his speeches Lieutenant Colonel Powell used
phraseology such as "fucking Welsh Guards who do you think you are".
He denies doing so, and at a late stage of the proceedings found in his attic
an annotated copy of his notes for the speech, which, not surprisingly, do not
contain such a passage. He does accept that he wanted the battalion to put the
Falklands campaign behind them, and to look to the future and to the challenges
presented by the conversion of the battalion to a motorised unit.
2.49 The
evidence of other officers who would have been present on that occasion is revealing.
Lieutenant Colonel Davies was cross-examined on the point. He was not able to
deny that something to that effect was said, but was not able to remember it.
His discomfort when answering questions on the subject was evident. I am satisfied
that it is probable that Lieutenant Colonel Powell did use such an expression;
but whatever the precise wording used, I have no doubt that it was his intention
to bring the battalion up short. He was determined that the battalion should put
the tragic events of the Sir Galahad behind them.
2.50 I
am invited to draw conclusions from that speech as to the culture prevailing within
the Welsh Guards and 1st Battalion in particular. It is clear that
Lieutenant Colonel Powell was faced with the challenging task of preparing the
battalion for its next assignment in Germany. He took a robust approach to leadership,
and I have little doubt that the manner in which he expressed himself appeared
to those who had served in the Falklands, and in particular those who were aboard
the Sir Galahad, to be disrespectful to those whose lives had been lost. Many
would have handled it differently and with greater sensitivity. But in my judgment
no reliable conclusions as to the prevailing culture within the Welsh Guards can
be drawn from this single episode.
3. MICHAEL
KIFT
3.1 Michael
Kift was born on 17 February 1961. On 15 July 1980 he enlisted in the Welsh Guards,
following in the steps of his father and two uncles. He married in April 1981.
On 23 May 1995 he was discharged in the rank of Lance Sergeant with
an exemplary discharge note.
3.2 On
12 May 1982 he was deployed with the 1st Battalion Welsh
Guards to Operation Corporate. He was then 20 years of age. On 8 June he was aboard
the Sir Galahad when it was attacked by Argentine aircraft. He was in the kitchen
area of the vessel and felt the searing heat of the fireball that engulfed it.
Like Clive Davies he escaped physical injury, but like him was exposed to the
most horrific experiences during the attack and the landing of the dead and injured.
There were a number of points at which he thought he was going to die.
3.3 The
Claimant subsequently served in Northern Ireland. He was stationed in the province
between 1992 and 1995. After his discharge from the army in May 1995 he worked
for a period with a security company, then undertook an HND/BTec in building studies
and property management at the Swansea Institute. He has since worked in the construction
industry as a site manager. In July 1986 his wife gave birth to their son Steven
who sadly was born with a heart defect. Steven died at the age of six weeks on
30 August 1986 in the Bristol Children’s Hospital. The Claimant was devastated
by his death. He first sought psychiatric assistance in 1997, some 2 years after
his discharge from the army, when he told his GP, Dr Lloyd, that he had PTSD and
wanted to see Dr Bisson for a psychiatric assessment. He explained to Dr Daly
that this was prompted by a friend who had suggested a visit to his solicitor.
3.4 The
claim is advanced on the basis that the Claimant suffered an acute stress reaction
and went on to develop PTSD with secondary substance abuse. The Defendant does
not accept that the Claimant suffered an ASR. Secondly its expert, Professor Fahy,
accepts that if the clinical history now given by the Claimant is accepted at
face value, then a diagnosis of PTSD is appropriate. But he questions the reliability
of that history by reference to the contemporary documents. Accordingly the relevant
issues are –
1.
whether the Claimant suffered an ASR/ASD in the Falklands,
2.
whether he subsequently developed PTSD,
3.
and if so, whether it ought to have been detected before his discharge from the
army in May 1995.
3.5 The
Medical Records
The
Claimant’s medical records prior to his discharge from the army are unremarkable.
His F Med 4 records complaints of abdominal pain in June 1983 and May 1986 and
of chest pains in March-August 1984. Details are set out in the psychiatric reports
from Dr Daly and Professor Fahy. It is clear from the records that on each occasion
the appropriate investigation was carried out, but no treatable condition was
identified. It is also clear that at no stage did the Claimant ever raise the
question of his psychiatric or psychological condition with an MO. His discharge
PULHEEMS was normal.
3.6 The
Service Records
Save
for the period in 1986 following the tragic death of his son the Claimant’s work
record was generally good and often exemplary. His annual report for the year
following the Falklands War dated 1 July 1983 recorded –
"Kift has
worked hard in the platoon and has proved to be a most effective member of the
company…Despite his continued quiet approach he has developed a dry sense of humour.
A fit, ambitious guardsman, if he capitalises on his experience and ability he
should do well in the future."
The
next annual report dated 10 March 1984 was equally promising –
"He
has settled into life in BAOR. Kift is a proficient and experienced soldier. He
did well on his PT course and has since shown an ability to lead guardsmen…If
Kift maintains enthusiasm and consistency he will do well"
.
A
year later the annual report dated 1 March 1985 was in similar vein –
"Kift
is a mature and experienced soldier who certainly has the ability to be a good
NCO. He is very fit and concentrates on his job as a PTI…he has been posted to
the Guards Depot as a PT L/Cpl instructor."
3.7 In
the period that followed Steven’s death his conduct deteriorated badly. He was
involved in a series of disciplinary offences that resulted in him being reduced
to the ranks. The deterioration was reflected in his annual report dated 13 February
1987 –
"Kift
has had a disturbing six months due to family problems. He was subsequently disciplined
and reduced to the ranks and transferred from being a PTI to a storeman in the
Training Wing. He has done well as a storeman and proved his overall ability as
a conscientious guardsman.
I
am glad to say that his family have overcome their tragic loss. Gdsm Kift now
wishes to return to his Regiment and win his tapes back. I feel sure he will succeed
and hope he has a sound future."
3.8 That
prediction was borne out as the Claimant was again promoted to Lance Corporal
on 25 November 1987. Thereafter his annual reports were consistently good. By
way of example –
1
March 1990
"LCpl
Kift has completed a very large number of courses all with reasonable to excellent
reports."
21
March 1991
"LCpl
Kift has impressed a great many people, His work for the company has been excellent…He
must now get himself fit in order to finish SCBC as I am in no doubt that he is
ready for promotion."
November
1992 (relating to a period of service in Northern Ireland)
"LSgt
Kift has been a team commander in Northern Ireland during the period of this report.
Recently he has completed and passed the arduous recce platoon selection. His
supreme fitness undoubtedly assisted him greatly. He continues to be well motivated
and gives much effort to all tasks set for him."
3.9 On
1 March 1994 he sought a personal interview with the CO to discuss his prospects
in the army. The note of the meeting records that he was under pressure from his
wife to leave; and that he wanted to leave because his career was progressing
slowly. His final annual report a year later records that …he is an experienced
NCO who has much to offer the Army and it is sad that he has decided to leave
the Service."
3.10 The
Witness Statements
As
in the case of each of the lead actions I propose to refer only to those aspects
of the evidence that bear on the generic issues of detection and culture.
3.11 The
first incident of significance occurred shortly after the Argentine surrender
when the Claimant was involved in guarding prisoners who were being returned to
Argentina by ship. Major Bodington says that approximately 4,000 prisoners were
returned to Argentina aboard the Canberra. The Claimant describes losing control
when provoked by an Argentinean pilot and cocking his gun and placing its barrel
in the pilot’s mouth. He says that he was overwhelmed by anger and that he could
easily have pulled the trigger. He was pulled off by his colleagues. His account
is corroborated by the evidence of two of his colleagues in the Welsh Guards,
John Bewsher and Timothy Lawrie. The incident was apparently reported to the Red
Cross, but no action was taken. Major Bodington, who was in command of one of
the decks on the Canberra at the material time, says that he did not hear of the
incident, and that it would have been taken very seriously indeed. Brigadier Rickett
and Lieutenant Colonel Davies say that they were not aware of it. I have no doubt
that such an incident took place; but I am not satisfied it was brought to the
attention of Mr. Kift’s superior officers.
3.12 Mr.
Kift says that following his return to the United Kingdom he started drinking
heavily and became detached from his parents and his in-laws. He acknowledges
that his behaviour damaged his relationship with his wife. He says that he wanted
to leave the army but was under considerable pressure to continue to serve in
order to support his family, his daughter Nicola having been born in August 1982
shortly after his return from the Falklands.
3.13 In
1984 he was posted to Germany for a year and says that his drinking increased,
putting further stress on his marriage. He returned to Germany for a further year
in 1987 and continued to drink heavily. He says that with Clive Davies and others
he took part in planned attacks on soldiers serving in other regiments. In short
he says that he fell into a pattern of heavy and regular drinking, and related
aggressive and violent behaviour. But he goes on to say that between 1988 and
1991 he was working hard at his job – "the harder I worked the less time
I had to think about the Falklands." He says that towards the end of
his service his performance as a soldier did not deteriorate despite his problems
– "I had learnt to hide my emotions." In his supplementary statement
Mr. Kift says that he would not have reported any psychological problems to his
superiors or to an MO. He would have been ridiculed for any sign of weakness.
He also explains that in order to report sick he had to report first to his sergeant
whom he had to satisfy that he should attend the medical centre, and that if sent
to the medical centre he would be screened by a medical orderly who would have
to be satisfied that it was appropriate for him to see the MO. He would not have
been prepared to reveal any psychiatric or psychological problems to either.
3.14 I
have no doubt that Mr. Kift was a changed man after his experiences in the Falklands.
As Lieutenant Colonel Davies says in his witness statement "In their different
ways I expect everyone had things to come to terms with when we got back after
the Falklands." It is clear from the evidence of those close to him,
in particular his mother and his wife, that he became withdrawn, suspicious and
aggressive. His mother puts it very simply -
"Michael
completely changed after he came back from the Falklands and has never got back
to the Michael I knew before the Falklands"
3.15 His
wife did all that she could to support him, and to persuade him to break his drinking
habits. She unquestionably went through most testing times, on occasion being
subjected to violence at his hands. In 1984 she went to the Families Officer,
Mr Bowen, in the aftermath of an incident in which he had punched her in the face
in the course of an argument, blackening her eve. She told Mr Bowen that she was
leaving the Claimant, and explained that he was drinking heavily and that his
behaviour had changed since he came back from the Falklands. Mr Bowen urged her
to stay with him, and visited her regularly for the next three weeks. She was
also visited by the padre, whom she assumes had been told about her problem by
Mr Bowen, and by one of the Claimant’s superior officers, who urged her not to
leave him.
3.16 It
is also clear from the evidence that the death of Steven had a devastating effect
on the Claimant. His mother said that it was "a great setback – all aspects
of his life were affected by grief." His wife says that his reaction
was to drink more frequently and much more heavily.
3.17 To
be set against such evidence are the statements of officers who at various stages
worked very closely with Mr. Kift. They say they were not aware of any sign that
he was suffering from a stress related illness and secondly that had he been,
they would have noticed it. Their evidence is consistent with his service record.
Of particular note is the description of the specialist training that the Claimant
undertook in 1992 –
"The
course lasted 6-8 weeks and was extremely demanding. It was one of the best courses
that I have ever done in the Army. On the basis of my experience I can’t believe
that someone would pass the course if they had psychological problems; certainly
if they did they would have to be very good at disguising their difficulties.
Passing the course meant that Mr Kift was mentally up to joining the platoon.
There are exercises involving sleep deprivation with mental recall tests that
test out how mentally able you are to withstand a large amount of stress."
3.18 The
Expert Evidence.
Dr
Daly, who was instructed by those acting for the Claimant, first reported on 28
November 2001. He summarised his opinion in the following terms -
"15.2
During the Falklands campaign Mr. Kift started to develop psychological difficulties
characterised by distressing intrusive memories and nightmares, avoidance behaviour,
and particularly agoraphobic symptoms with associated anxiety, affective constriction
and emotional detachment, alcohol abuse, sleep disturbance, difficulty relaxing
with hyper arousal hyper vigilance, impairment of concentration and disturbance
of mood. At interview I was struck by the change in demeanour when he began talking
about his experiences in the Falklands War. Mr. Kift is in my opinion suffering
from post traumatic stress disorder and panic disorder with agoraphobia. I believe
he also had a depressive illness and engaged in abuse of alcohol. "
3.19 He
also considers that the complaints of non-specific symptoms made by the Claimant
to the MO should have raised the possibility of underlying PTSD. In his supplementary
report dated 11 February 2002 Dr Daly, commenting on Dr Jenkins’ view
that Mr. Kift’s symptoms are now mild and that there is no significant functional
impairment, said -
"I
would agree to an extent but would argue that Mr.Kift continues to experience
significant subjective distress in association with his symptoms, and furthermore,
has previously experienced impairment in his occupational and social function
and continues to have difficulties in social and interpersonal relationships."
3.20 The
Defendant relies on reports from Dr Peter Jenkins and Professor Fahy. Dr Jenkins
concludes that the Claimant describes symptoms consistent with PTSD "…which
is chronic, but which is of mild severity". In his view the issue is
whether the symptoms "…in fact led to any substantial impairment in his
psychological or occupational function", and concludes that save for
the period following the death of his son, there is no indication in the contemporary
records of any such impairment.
3.21 Professor
Fahy arrives at a number of important conclusions. He begins by acknowledging
that this is a difficult case "…owing to the long duration from the index
event (Falklands War) and the reliance on retrospective clinical history and collateral
information." He continues –
"From
a psychiatric viewpoint there is a striking paradox at the heart of Mr. Kift’s
claim, namely that his psychiatric symptoms should have been detected and treated
at an early stage, yet he did not bring these symptoms to the attention of his
doctors in the army, and even after leaving the army, he has declined offers of
treatment from the doctor who has provided a report in support of his claim"
Under
the heading ‘Severity of PTSD’ he says
"The
contemporaneous medical and employment records provide little or no support for
the proposition that Mr. Kift has suffered from disabling post-traumatic symptoms
from the time of his experiences in the Falkland Islands.…furthermore it is noteworthy
that Mr. Kift presents a normal appearance on psychiatric interviews (conducted
by Dr Bisson and me), and I think that it is implausible that the army doctors
witnessed any obvious evidence of psychiatric illness during his consultations
with them. A similar point can be made about Mr. Kift’s conversations with his
civilian GP, who has not recorded any observed abnormalities in Mr. Kift’s mental
state presentation to him. Mr. Kift’s army annual reports and course reports provide
detailed commentary on his performance at work, and, in general are extremely
positive about his abilities and achievements. These reports are not insensitive
to psychological issues, as there are occasional references to Mr. Kift being
shy, or even introverted.
In
conclusion, the account given by Mr. Kift in his interviews with doctors preparing
medico-legal reports is compatible with a diagnosis of PTSD of moderate severity
until 1986, then of mild severity until the late 1990’s, followed by mild or borderline
clinical severities. However a review of the contemporaneous medical records and
army service reports paints a more complex picture, failing to provide any specific
support for the diagnosis of PTSD, but suggesting the presence of some emotional
and behavioural problems following the death of Mr. Kift’s son in 1986….Mr Kift
has maintained a good employment record both during his army service and since
leaving the forces. Furthermore he has not sought help for psychiatric symptoms
during his time in the forces, and he has requested a psychiatric review on only
one occasion (in 1997) following his initial medico-legal assessment by Dr Bisson
in 1996. From a clinician’s viewpoint, it strikes me as most unlikely that anything
other than mildest syndrome of PTSD could be concealed from competent medical
advisers and close working colleagues over 12 years of army service and beyond
this time into civilian life.…I cannot rule out the possibility that he suffered
from mild fluctuating PTSD symptoms since 1982. It seems unlikely to me that his
symptoms have ever been of moderate severity and it is plausible that there have
been periods, which they have been lengthy ones, when his symptoms were very mild
sub-clinical or non- existent "
3.22 Conclusions
The
first issue is whether the Claimant in fact suffered an ASR/ASD in the Falklands.
On his account of his condition in the immediate aftermath of the attack on the
Sir Galahad it is probable that he did. But the issue is not of great significance
given my findings as to the second issue. As to that I am satisfied that as a
result of his experiences in the Falklands the Claimant developed PTSD with associated
alcohol abuse. But the critical issue is the degree of severity of his symptoms.
I find the analysis advanced by Professor Fahy, with which in essence Dr Jenkins
concurs, persuasive. It is highly improbable that the Claimant would have been
able to sustain the level of performance at work evidenced by his service record
if he had been suffering from more than mild symptoms. During the 12 years for
which he served following the Falklands War, and save for the period in 1986 to
which I have made repeated reference, he earned consistently good reports from
his superior officers whether serving in Germany or Northern Ireland. He was selected
for training for the SAS although he did not complete it having failed a physical
test. He successfully underwent further specialist and highly demanding training.
His final annual report shows that his superiors were sorry to lose him. The fact
that he was able, on his own account, successfully to conceal his difficulties
from his superiors bears out Professor Fahy and Dr Jenkins’s conclusion.
3.23 Dr
Daly addresses the issue of the severity of the Claimant’s symptoms in his commentary
on the report from Dr Jenkins. He says that the Claimant’s "…functioning
in the military was affected to some extent by his post-traumatic psychological
difficulties", and that "his interpersonal relationships and
his own psychological functioning have been affected since 1982…". He
is right to draw a distinction between the Claimant’s performance at work and
the effect of his condition upon his personal relationships. But I do not consider
that his conclusion as to the former is supported by reliable evidence. In my
judgment he has failed to give sufficient weight to the Claimant’s service record.
As to the latter, and as I have already indicated, I accept that his personal
relationships were adversely affected by his condition and in particular by his
drinking. But I do not consider that that undermines the conclusion arrived at
by the Defendant’s experts as to the severity of the symptoms of PTSD.
3.33 I
turn then to the question of whether the Claimant’s condition ought to have been
detected before his discharge from the army. There are two strands to the Claimant’s
case on detection, first that the MOs who treated him for a variety of complaints
in 1983,1984 and 1986 ought to have suspected that they might have a psychological
aetiology, and secondly that his heavy drinking and related marital and disciplinary
problems ought to have alerted his superiors to the possibility that he was suffering
from a psychiatric disorder as a consequence of his experiences in the Falklands.
3.34 As
to the first I find Professor Fahy’s analysis persuasive. He says -
"My
view is that these references were infrequent, the symptoms were associated with
specific physical signs on examination (e.g. pleural rub) all had an association
with specific behaviours (e.g. running) which suggested an underlying organic
cause. Following investigation of the abdominal complaints, a physical abnormality
was identified and treated successfully…in my view it is unrealistic to suggest
that a small number of consultations for abdominal or chest pain (even in the
absence of abnormal physical signs or symptoms suggestive of underlying organic
disease) could be viewed as a useful predictor of underlying PTSD. Using such
highly non-specific symptoms as a marker for PTSD would result in an enormous
over-estimation of the frequency of PTSD, with many false positive and false negative
conclusions.
3.35 In
my judgment the MOs who saw the Claimant on the occasions in question were not
at fault in failing to suspect a psychological aetiology.
3.36 As
to the second, the contemporary evidence demonstrates that save for the period
following the death of his son in 1986, the Claimant maintained a good standard
of work. I have no doubt that he was drinking heavily, particularly when serving
in Germany in 1984/6; but it did not have an adverse effect upon his work. As
he himself says, he had become adept at hiding his emotions from his superiors.
3.37 I
accept his wife’s evidence that as a result of her approach to the Families Officer
in 1984, the marital problems caused by his drinking were brought to the attention
of the Families Officer, the padre, and one of the Claimant’s superior officers.
But I am not persuaded that in the drinking culture that prevailed within the
battalion, as within other units serving in Germany, knowledge of a problem with
drink and related domestic violence ought of itself to have alerted his superiors
to the possibility of a psychiatric disorder.
3.38 The
fall-off in performance and disciplinary problems in 1986 were readily explicable
by reference to the tragic death of the Claimant’s son. Again I do not consider
that they ought to have given rise to a suspicion of a psychiatric disorder associated
with the Claimant’s service in the Falklands.
3.39 Culture
I
accept the Claimant’s evidence that those who showed any sign of weakness were
vulnerable to ridicule, and that he would not have revealed any psychological
problems to his superiors. In that context it is relevant to note that he says
that Clive Davies was ridiculed after he had been examined by a psychiatrist in
late 1982.
3.40 Secondly
the evidence given by the Claimant in his supplemental statement as to the rigid
hierarchy within the Welsh Guards reinforces the conclusions as to the differing
perception of psychological problems at different levels within the hierarchy
contained in my judgment in the case of Davies.
4. X
4.1 It
has been agreed between the parties that the identity of X should not be revealed.
4.2 X
was born on 7 March 1952. He enlisted in October 1972 and served in the 2nd
Battalion Parachute Regiment until he took voluntary redundancy on 30 September
1992. X served in D Company 2 Para in the Falklands War, and fought at Goose Green
and Wireless Ridge. He was also at Bluff Cove when the Sir Galahad and the Sir
Tristam were attacked. In the course of the battle for Wireless Ridge he was injured
by friendly fire and was evacuated by helicopter to the dressing station at Teale
inlet and thence to the hospital ship, the SS Uganda. In May 1995, over two and
a half years after leaving the army, he was referred to a psychiatrist, having
made contact with the Ex-Servicemen’s Mental Health Welfare Society after hearing
a television program about PTSD. The psychiatrist, Dr Jones, concluded that X
was suffering from PTSD.
4.3 It
is X’s case that he suffered an ASR/ASD during and after the battle for Goose
Green, as a result of his involvement in assisting the Welsh Guards as they were
brought ashore at Bluff Cove, and during and after the battle for Wireless Ridge,
and that the ASR/ASD developed into PTD/PTSD with, per paragraph 6 of the Re-Amended
Particulars of Claim, "…enduring change of personality, ongoing re-experiencing
of events, both with and without reminder, nightmares and vivid pictures of what
had happened; and he continued to treat himself subconsciously by avoiding thinking
about it, throwing himself into his work and drinking alcohol to excess."
The pleadings and expert medical evidence give rise to three relevant issues
in his case –
- whether
he suffered an ASR in the Falklands,
- whether
he developed PTSD before his discharge from the army, and
- if
so, whether it should have been detected during the 11 years for which he served
following the Falklands War.
4.4 . The
Medical Records
X’s
army medical records are entirely unremarkable. There is no reference to any psychiatric
symptoms including insomnia, mood problems, symptoms of PTSD or alcohol abuse.
Following his discharge from the army X made an application for a war pension
in September 1992. He made no reference to any psychiatric complaints in the application.
In 1995, and following the television program to which I have already made reference,
X saw a psychiatrist, Dr Jones, but before doing so consulted his GP reporting
a 13 year history of sleep disturbance. Following the receipt of a letter from
Dr Jones, the GP saw X again on 16 May 1985 and noted -
"Gets muddled
with numbers and feels unable to concentrate." "Came in at my request
following a letter from Dr Alan Jones…suffered mental problems since Falklands,
quick tempered, jumps to conclusions before hearing what people say. Never sleeps
well so drinks excessively at times.
4.5 Dr
Jones saw X on 21 July 1995 and concluded that he was suffering from PTSD, citing
symptoms including insomnia, nightmares, intrusive memories, flashbacks, irritability
and volatility. He recommended that X be admitted to the Ty Gwyn Nursing Home,
an establishment for ex-servicemen. X was admitted to Ty Gwyn from 29 September
1995 to 2 December 1995. As Professor Fahy has observed, the paperwork
relating to his admission is exceedingly sparse and uninformative. It is not clear
whether he received any specific treatment for PTSD at Ty Gwyn. X does not appear
to have either consulted a psychiatrist or to have received any treatment for
PTSD since being discharged from Ty Gwyn.
4.6 The
Service Records
X’s
service record both before and after Operation Corporate, is of central importance;
and it is necessary to consider it in some detail.
4.7 His
recruitment interview noted "drinks fairly heavy"; but he completed
his basic training and was graded "outstanding." In his early
years in the army there were some disciplinary problems. On 25 January 1974 was
convicted of handling stolen goods and on 20 September 1974 of drunk driving together
with a number of other motoring offences. He was put on a three month disciplinary
warning period. In November 1976 he was convicted of being drunk, and a year later
was convicted of disobedience to orders, namely a failure to book into the guardroom
on time. In May 1977 he was posted to Berlin for a period of two years. In May
1978 he married for the first time, and in April 1979 he was promoted to Lance
Corporal. On his return to the UK from Berlin in May 1979 he was posted to the
battalion depot as a Physical Training Instructor and in May 1980 he was promoted
to Corporal. His Confidential Report in December 1980 recorded a good start as
a substantive Corporal but noted "some domestic turmoil". He
was divorced in the following year.
4.8 In
February 1981 X’s Regimental Conduct Sheet was described by his commanding officer
as "a horror". When he applied to join the SAS later that year
his CO doubted he would show the application or effort needed. His Confidential
Report in March 1982 noted his "…poor performance as a rifle section commander.
He had ample opportunity to improve but failed to do so. His performance in Kenya…was
again not impressive…placed on a three month formal warning".
4.9 In
April 1982 he embarked with the battalion for the Falkland Islands. In contrast
to his record immediately before Operation Corporate, the Confidential Reports
in the following years show a significant improvement in his attitude and performance.
The report for March 1983 noted his exceptional performance in the Falklands and
recorded that he appeared to have settled down. In November 1983 he was noted
to be less erratic than before and showing judgment and a sense of maturity. By
1984 his performance was noted as "exemplary …a thoroughly sound
extrovert robust commander… I strongly recommend him for promotion and believe
he has the potential to reach Warrant Officer rank."
4.10 X
married again in 1985. His Confidential Report in February 1985 was positive in
tone. It noted that he had been distracted from his work by some personal problems
but that "certainly since the tour began (November 1984) he has performed
very creditably…well above average for his rank (Corporal) and recommend
him for promotion." In July 1985 he was duly promoted to Sergeant. On
the 25 November 1985 he was convicted of being drunk and disorderly, the first
time that he had been convicted of any disciplinary offence since 1977. But his
Confidential Report for 1986 noted that he was "invariably cheerful and
conscientious and ever willing to accept responsibility". The subsequent
report in September 1986 said "he is an extrovert character with great
self-confidence and a buoyant sense of humour…his tendency to be headstrong is
an Achilles heel which sometimes prevents the proper thinking through of problems.
It also reduces the level of co-operation in his platoon to which his commitment
should be total. But the report added "that he remains nevertheless
a responsible and conscientious senior NCO who has the potential to go further."
Thereafter X appears to have become increasingly unsettled in his army life. The
Confidential Report of September 1987 recorded -
"…
competent platoon sergeant however he appears to increasingly lack motivation
in his day to day work; his interests and flair have both declined and he relies
more and more on experience alone to sustain him. Of late he has been pre-occupied
with personal matters. Newly married and with a posting imminent, this has to
some degree been justified. However it has perceptibly eroded his commitment to
his present responsibilities to the extent that he cannot enjoy the full confidence
of his superiors…
In
summary X is unsettled at present … will need to generate a more obvious enthusiasm
for his work if he is to demonstrate suitability for promotion…
He
is knowledgeable fit and industrious yet he has permitted his personal interest
to affect his overall enthusiasm. He has had a long period in the battalion and
needs a change… "
4.12 In
late 1987 he was moved to 27 CDT TRC Team Liverpool (cadet training); and the
move appeared to be beneficial, resulting in renewed enthusiasm and dedication
as noted in the Confidential Report for October 1988. But in February of that
year he was convicted of drunken driving and disqualified for twelve months.
4.13 In
November 1988 he returned to the battalion and was posted to the Sergeants Mess
as Mess Manager. It seems clear that that was a job for which he was ill suited;
and he did not perform well. A Career Brief dated 29 January 1990 records the
view that he had reached his ceiling having achieved Sub Sergeant GT about two
years behind the average "after a somewhat chequered early career."
He was not recommended for promotion and it was noted that " his track
record makes him extremely difficult to place…" But in the following
year he was posted as an Air Sergeant in charge of a helicopter pad in Northern
Ireland, a role that he was recorded in the Confidential Report for October 1990
as having performed " to a very high standard, often working long hours
at considerable pressure. He was always quick to react to unforeseen and last
minute changes to plan, and stuck up a good working relationship with the RAF.
Through all this he maintained his sense of humour and was a considerable asset…"
He was recommended for promotion in his turn.
4.14 But
in 1992 X was offered voluntary redundancy which he accepted. After leaving the
army he worked as glazier for about a year, then did electrical work for a further
year after which he registered for a joinery/carpentry course which lasted for
two years. He passed the course and since 1994 has worked as a self-employed carpenter.
4.15 The
Expert Evidence
Reports
from three experts have been served in support of X’s claim. Dr Higson, a chartered
clinical psychologist, has submitted a report dated 10th April 2001,
a supplementary report dated 19 February 2002, and an addendum dated 20 February
2002, the latter being a commentary on the report from the MoD’s expert Professor
Fahy. Dr Deahl has submitted a report dated 16 October 2001 and a short
addendum dated 31 January 2002, and Dr Bisson has submitted a report dated 6 December
1996.
4.16 Dr
Higson’s first report is short. He concludes that X has suffered from PTSD since
1982 " with an onset a few weeks following the Falklands War." He
continues "his main symptoms at that time appear to have been those of
hyper-arousal with some avoidance and reliving symptoms. As a result of these
symptoms X misused alcohol for over ten years and suffered from episodes of low
mood and depression." His supplementary report is much more detailed
and was based on a substantial quantity of written material including witness
statements, X’s medical records both civilian and military and his personal file.
But it does not appear that Dr Higson saw X again before preparing the supplementary
report. He concludes that -
"7.
SUMMARY
X
was exposed to several traumatic experiences whilst serving with the army during
the Falklands War in 1982. These caused X to develop these symptoms of an Acute
Stress Disorder that became Post Traumatic Stress Disorder together with co-morbid
alcohol misuse."
Similarly
Dr Deahl concluded in his first report -
"X
has suffered from long standing Post Traumatic Disorder (PTD) since his involvement
in the Falklands conflict …in particular he has experienced symptoms of post traumatic
stress disorder (PTSD) of marked severity for at least two years following the
Falklands conflict which in recent years have diminished considerably in frequency
and severity. Although X still experiences intrusive recollections of his military
experience and avoids reminders of the conflict I do not at present believe that
symptoms are sufficiently severe to warrant a diagnosis of PTSD (although he has
just returned from an enjoyable holiday in Spain and I may have been seeing him
at his best). In contrast X has however suffered from an enduring change of personality
since the conflict that has led to difficulties in his intimate relationships
and social contacts."
4.17 Dr
Bisson concluded in 1986 that X developed PTSD and alcohol dependence as a direct
result of the Falklands War and that he was suffering from PTSD of moderate severity
and continuing to abuse alcohol, albeit to a lesser degree than previously.
4.18 Professor
Fahy, who was instructed by the MoD, reported on 10 July 2001 having interviewed
X on 7 April 2001. He has arrived at a different conclusion. His impression
from the medical records, an impression strongly reinforced by his interview with
X, is "that he is a tough robust man, with excellent social skills and
above average intelligence." There can be no doubt that X was exposed
to horrific experiences during the Falklands War; but he told Professor Fahy that
"…he dealt with these experiences in a calm and professional manner and
that he was not immobilised by intense fear, helplessness or horror."
Professor Fahy considers that X’s ability to cope with his experiences in the
Falklands reflect the underlying robustness of his character and his experiences
and training as a soldier during the ten years prior to the Falklands conflict.
He recognises that X has a long standing alcohol problem, but points out that
alcohol was a problem prior to the Falklands, and that his alcohol abuse was heaviest
during his German posting, where, as I have learnt from the evidence in other
lead cases, alcohol was very cheap and readily available, and there was a strong
culture of heavy drinking. But Professor Fahy does not consider that X has suffered
from PTSD. He argues that X has had minimal symptoms that can be specifically
related to his experiences in the Falklands, i.e. irregular flashbacks and nightmares,
and that he lacks the behavioural and cognitive avoidance which are classic features
of the condition. He regards his problems with poor sleep, irritability, and impairment
of concentration as related to his personality and his long history of alcohol
abuse. He concludes that
"X
is an intelligent and sophisticated man, and I have no doubt he must have been
affected by his experiences in the army. It is clear he became disillusioned with
the army, and that his limitations as a soldier became more obvious as his career
progressed. He has sought an explanation for his personal and his inter-personal
difficulties, and his understanding of his problems has been influenced by doctors
and therapists who have not scrutinised his records in a careful or thorough manner.
These advisers have reinforced an inappropriate diagnosis of PTSD while providing
no specific effective treatments. Indeed X’s own formulation of his psychological
problem is considerably more sophisticated than the formulation provided by the
PTSD clinicians and experts: "I have changed. I am not the person I was then.
I was happy go lucky, now it’s upside down. I can’t talk to people. Is it that
I’m a grumpy old man? I don’t know. Is it lack of sleep? Is it drinking too much?
I don’t know". In many respects I agree with X’s own assessment, i.e. that
he has been harmed by his drinking behaviour and that his character …is an important
contributor to his mental state. In addition, he has endured remarkable experiences
in the army, and these continue to reverberate in his thoughts in a manner which
is unsurprising, but is far from impairing his general function and which do not
constitute a psychiatric illness."
4.19 Issue
1
The
first issue is whether X suffered an Acute Stress Reaction in the Falklands. There
can be no doubt that X was exposed to the most horrific experiences in the course
of Operation Corporate and that there must have been times when he was terrified,
in fear of his life, and deeply disturbed by the scenes that he witnessed. In
the battle for Goose Green he and his comrades were under sustained attack from
enemy artillery, mortars and small arms. Both sides were using white phosphorous
grenades which caused horrific burn injuries. X himself used fragmentation grenades
and witnessed their effect on the enemy. He and Corporal Hanley together attacked
the schoolhouse building which was known to be full of Argentine soldiers. Under
covering fire they charged the building, throwing grenades into it and securing
the position. In the course of the battle he witnessed the death of comrades at
close quarters and numerous Argentineans being killed or severely injured in close
proximity. At Bluff Cove he was involved in assisting the survivors from the Sir
Galahad many of whom had suffered the most horrific injuries. At Wireless Ridge
the ‘friendly fire’ in which he sustained injury, killed two comrades on close
proximity to him. He had to wait, exposed on rocks on the slopes of Wireless Ridge,
for approximately ten hours before he could be evacuated by helicopter. At one
stage he woke in his sleeping bag thinking that he was in a body bag.
4.20 It
is alleged in the Re-Amended Particulars of Claim that as a result of such exposure
"he felt intense fear and exhibited classical signs of ASR…"
(see para 5). While acknowledging that X must have experienced intense fear and
been deeply distressed by the witnessing injury and death at such close quarters,
and when injured felt extreme helplessness, the MoD does not accept that X suffered
an ASR.
4.21 The
Claimant relies upon the supporting evidence from Thomas Harley and Stephen Hood.
Thomas Harley describes the aftermath of the battle for Goose Green in the following
terms -
"After
the battle was over, X had changed. He no longer joked anymore. He appeared withdrawn.
We talked together as we got further supplies and details of the battle. We were
still busy working. I did not see X crying but he was clearly shaken as we all
were. "
Mr
Harley also describes events following the attack on the Sir Galahad -
"We
had to rush to the shoreline to meet the Welsh Guard casualties as the came ashore.
X was in a terrible state. None of us were prepared for the horrific experiences
we had to try and deal with."
4.22 He
goes on to describe X’s active involvement in helping the Welsh Guards from the
life rafts and administering first aid. Stephen Hood, who was a combat medic working
in the regimental aid post, saw X during a lull during the battle for Goose Green.
He described him in the following terms -
"I
was struck by how vacant he looked. I could see a change in him just by the vacant
look in his eyes. I now know this vacant look is now called "thousand yard
stare" by people in the army. I spoke to X. He used black humour to try and
make light of the horrific sights he had just experienced and witnessed. He was
strangely giggling but his eyes remained vacant. He talked to me for a few minutes
about two para colleagues and Argentineans he had seen being killed. He appeared
to be deeply affected by what he had witnessed."
He
later added -
"I
spoke to X after the battle was over but only briefly. All of us, including X,
was still pumped up. X still had vacant eyes. I thought to myself at the time
that he was different. In fact we had all been profoundly affected by the battle
and we had all changed. "
4.23 As
to Bluff Cove, it is noteworthy that there is no record of X having spoken about
the impact of the experience of assisting the Welsh Guards in the reports from
Dr Higson, Dr Deahl, and Dr Bisson. Nor is there any such reference in the record
of the very detailed account of his experiences in the Falklands given to Professor
Fahy.
4.24 In
the course of his examination of X Professor Fahy asked him to identify the worst
aspect of his experiences in the Falklands. The reply recorded by Professor Fahy
is most illuminating.
"He
said that the most upsetting incident was the death of the soldier in the explosion
which also injured him. He said that he coped with his other experiences without
becoming distressed or intensely fearful and he said that he felt prepared and
able to cope with the duties that were required of him as a front line soldier
during the conflict."
It
is Professor Fahy’s view that his ability to cope with his experiences in the
Falklands reflected the underlying robustness of his character and his experiences
and training as a soldier in the ten years before Operation Corporate.
4.25 I
am not satisfied that X suffered an ASR/ASD as a result of any of his experiences
in the Falklands. It is clear from the evidence that he was able to function effectively
at all stages until he was injured. I have no doubt that he was shocked and distressed
by his experiences, and that he felt the most intense fear, including fear for
his life. But he was able to cope as a result of his innate strength of character
and his army training; and in that regard I attach considerable weight to his
response to the request by Professor Fahy to identify the worst aspect of his
experiences in the Falklands. I accept that he appeared to be a changed man in
the immediate aftermath of the battle for Goose Green, but as both Thomas Harley
and Stephen Hood point out that was so for all. It would be extraordinary if that
were not the case.
4.26 Issue
2
The
second issue is whether the Claimant developed PTSD during the remaining ten years
of his service in the parachute regiment. The Claimant says in his witness statement
that he started to suffer from flashbacks to Goose Green, Fitzroy and Wireless
Ridges, and from sleeplessness and nightmares when aboard the hospital ship, SS
Uganda following his evacuation from the Falklands. He says that his sense of
humour disappeared, that he became short tempered and that he suffered the occasional
panic attack. As to his drinking he says -
"The
way that I dealt with my emotions after the Falklands was first of all to start
drinking to try to numb and blot out my feelings…I got very drunk at least three
or four times a week…Often I easily drank over 10 pints in one session, far more
than I drank before the Falklands. My pattern of drinking heavily on a regular
basis continued from 1982 for many years."
But
he goes on to say –
"I
managed to hide my panic attacks and my emotional problems at work. I completed
my 10 mile run exercises and I made sure that I did not turn up late hung over
for a parade. I channelled all my efforts into working hard."
That
is consistent with what he told Dr Bisson, namely –
"He
told me that he felt bitter, kept his feelings to himself and ‘put on a brave
face’"
"He
told me that he was no different to anyone else around him and told me that everybody
who was in the Falklands with him seemed to be experiencing the same sort of things
as he was and that everybody had increased their alcohol intake."
4.27 The
Claimant also relies upon the evidence of three of his fellow soldiers as to his
condition upon return from the Gulf. Thomas Harley says that there were numerous
occasions between 1982 and 1992 when he "…saw X very quiet, withdrawn
and lacking in interest in the army", and that he had lost his sense
of humour and could no longer be teased. Paul Bishop says that he noticed a change
in X after the Falklands and that he no longer appeared to care much for his career.
He also asserts that he drank more heavily. Stephen Hood gives evidence as to
the Claimant’s drinking both before and after the Falklands, and describes in
particular the Claimant becoming lachrymose when in drink, evidence which is not
in fact supported by the Claimant’s own witness statement. I shall further consider
the question of the Claimant’s drinking in the context of the expert evidence.
4.28 In
his first report the psychologist Dr Higson based his conclusion on X’s report
of sleeping difficulties a few weeks following the Falklands War and symptoms
of "hyper arousal with some avoidance and reliving symptoms" in
1982. In essence he repeated that analysis in his supplementary report.
He concluded his addendum dated 19 February 2002 by expressing the view that -
"It
is my opinion that X has suffered from PTSD since 1982 and continues to suffer
from it at the present time to a moderate degree. X’s PTSD is however a fluctuating
condition and is likely to be more prominent during anniversary periods."
4.29 Dr
Deahl summarised the evidence upon which he based his diagnosis in the following
terms -
"Subsequent
to the conflict and his exposure to a number of traumatic events, X rapidly developed
intrusive memories, nightmares, flashbacks related in content to his experiences
during the conflict. He also developed an exaggerated startle response and hyper
vigilance. He exhibited signs of over arousal including irritability and deterioration
in his temper. He experienced marked feelings of guilt about the death of comrades.
He began drinking more heavily than hitherto in an attempt to reveal these feelings
(up to 12 pints of lager per night) and also took steps to avoid any reminders
of the conflict."
4.30 It
is noteworthy that in his report of 31 January 2002, and having interviewed
X on 8 October 2001, he did not believe that his symptoms were sufficiently severe
to warrant a diagnosis of PTSD, those symptoms being intrusive recollections of
his military experience and avoidance of reminders of the conflict. That is of
course to be contrasted with the conclusion that Dr Higson arrived at in his addendum
of 19 February 2002 that X was continuing to suffer from PTSD to a moderate degree,
albeit qualified by the observation that his condition could fluctuate.
4.31 Dr
Bisson, who examined X in August 1996, did so without the benefit of either his
medical or service records. He undertook a structured interview which –
"revealed
him to be suffering from mild to moderate re-experiencing phenomena, "moderate"
avoidance and numbing of general responsiveness phenomena and moderate to severe
hyper-arousal phenomena. He fulfilled the full DSMIV criteria for a diagnosis
of post traumatic stress disorder. "
4.32 When
Professor Fahy interviewed X on 7 April 2001 he took a full and detailed history
of his psychiatric symptoms. In concluding that X has not suffered from a Post
Traumatic Stress Disorder he says that -
"…he
has minimal symptoms that can be specifically related to his experiences in the
Falklands, i.e. irregular flashbacks and nightmares, and he lacks the behavioural
and cognitive avoidance, which are classic features of the condition. He has problems
with poor sleep, irritability, and reports subjective impairment of concentration
(which is not evident on interview or in his work). These are not specific symptoms
which, in my view, are related to X’s personality and long history of alcohol
abuse. "
4.33 X
told Professor Fahy that prior to the Falklands he drank "… eight to nine
pints of beer on one or two days, and considerably more on weekend nights."
He said that his alcohol intake was especially heavy during his Berlin tour. He
said that after the Falklands he increased his drinking, so that he was drinking
every night, and up to five pints a night more than prior to the Falklands. Professor
Fahy considers that X has had a longstanding alcohol problem -
"His
medical records make it clear that alcohol was a problem prior to the Falklands.
His alcohol abuse was heaviest during his German posting when alcohol was very
cheap, and there was a strong culture of heavy drinking. During the German tour
X was alcohol dependant, and had at least one episode suggestive of delirium tremens.
After leaving the army his alcohol consumption reduced, but his intake remains
far in excess of the recommended upper limit of safe drinking. It is well recognised
that such a pattern of alcohol abuse is a risk factor for depression, cognitive
impairment, sleep problems and emerging personality problems. "
4.34 The
substantive report from Professor Fahy is impressive in its comprehensive and
careful analysis of the evidence. I do not find the reports from the Claimant’s
experts as impressive. As I have already indicated Dr Bisson did not have available
to him the large amount of historical material available to the other experts
against which to test the validity of what is necessarily a subjective account
by X of his symptoms. As to Dr Higson, I have already drawn attention to the difference
between his view of X’s current state and that of Dr Deahl. It could be argued
that the difference is attributable to fluctuations in X condition. But in the
absence of any evidence to suggest that there was any such fluctuation between
the date at which he was seen by Dr Deahl and the date upon which Dr Higson expressed
the opinion that he was still suffering from PTSD, the divergence of view does
not instil confidence. Furthermore in the section of his report headed "HISTORY
OF PSYCHOLOGICAL PROBLEMS", to which I have already made reference, he places
reliance upon X’s sleeping difficulties without making any reference to the fact
that in 1996 X described himself to Dr Bisson as "never having been a
good sleeper.", notwithstanding that Dr Bisson’s report was then available
to him. He also asserts that X misused alcohol severely as a result of his PTD.
Yet he makes no reference to the evidence as to X’s level of drinking prior to
the Falklands.
4.35 As
to Dr Deahl, he expresses the view that X suffered symptoms of PTSD "of
marked severity for at least two years following the Falklands conflict."
That is very difficult to reconcile with the service record which demonstrates
a marked improvement in his performance and attitude following Operation Corporate.
He seeks to reconcile his view with the contemporaneous records in the following
way –
"The
fact that X was successful enough in the mid-eighties to be promoted to the rank
of sergeant, is in no way dissonant with the diagnosis of PTD. Mr. X himself states
that he made a deliberate effort to concentrate on his work and this, in my experience,
is a common coping strategy used by individuals with PTD. As a result of this
their symptoms are often only evident in their social and domestic lives, or in
the case of older individuals (such as former Far East prisoners of war) following
retirement. In my experience, there is a poor correlation between the extent of
PTD related symptoms and social and occupational functioning, and the fact that
the individual appears to be coping at work does not mean they are not suffering
from significant PTD."
4.36 That
observation is of course highly relevant to the question of detection; but as
to the issue of whether or not X in fact suffered from PTSD, the history taken
by Dr Deahl is, not surprisingly, very similar to that taken by Professor Fahy,
although the latter does not identify the period of two years immediately after
the Falklands as having been particularly difficult for X. But the essential difference
between them is in their interpretation of the history in the light of the other
material available to them. Professor Fahy does not consider that those matters
that are plainly attributable to the Falklands experience are sufficient to give
rise to a diagnosis of PTSD. He is influenced in particular by the history of
alcohol abuse predating the Falklands. He accepts that there was some increase
in X’s alcohol consumption following the campaign, but considers that the alcohol
problem would have continued to have an adverse effect whether or not X had been
exposed to the trauma of combat in the Falklands. Dr Deahl says that X’s consumption
of alcohol prior to the Falklands campaign "…was not excessive in relation
to his peer group and must be seen in that context". He rejects Professor
Fahy’s view that the history of alcohol consumption is relevant to the interpretation
of the evidence as to X’s condition following the Falklands War and points to
the evidence from his colleagues in the Falklands as to the change in his character.
As has been said repeatedly in the course of the trial, no man can be unmarked
by experiences of the type to which those involved in battles such as Goose Green
and Wireless Ridge were exposed. But such changes of personality do not of themselves
amount to a psychiatric illness or disorder.
4.37 I
have come to the conclusion that in this case the evidence of Professor Fahy is
to be preferred. His conclusion is based upon a careful and detailed analysis
of the available evidence. I am not persuaded that on the balance of probabilities
X suffered from PTSD at any stage.
4.38 I
arrive at that conclusion for a number of reasons. First and for the reasons set
out above, I am not persuaded that X suffered an ASR/ASD in the Falklands. Secondly
the evidence does not demonstrate any functional impairment either during the
years for which he continued to serve in the parachute regiment or since his discharge.
On the contrary the years immediately following Operation Corporate his attitude
and performance improved and he earned promotion. His subsequent disenchantment
with army life is readily explicable by his reaching his ceiling and by his placement
in a post that was plainly unsuitable for him. Thirdly I accept Professor Fahy’s
view that he has minimal symptoms that can be related to his experiences in the
Falklands and that he lacks behavioural and cognitive avoidance, classic feature
of the condition. Fourthly I am satisfied that a number of his problems, such
as poor sleeping, irritation and impairment of concentration, can be attributed
to his history of alcohol abuse, which no doubt also had a considerable impact
on his personal relationships. I am not satisfied that the increase in consumption
following the Falklands made a significant contribution to the alcohol problem.
Fifthly there is no indication whatsoever of any psychiatric problem in his medical
records; and I take particular account of the timing of and circumstances in which
the question of PTSD arose.
4.39 The
third issue, that of detection, is no longer alive given my finding as to the
presence of PTSD. Suffice it to say that even if I had been satisfied that Dr
Deahl’s interpretation of the evidence was correct, I would not have been satisfied
that X’s condition ought to have alerted his superior officers or any MO to the
possibility that he was suffering from a psychiatric illness. I have already made
reference to the evidence from Dr Deahl that the symptoms that he had identified
are "…often only evident in their social and domestic lives". X
himself says that he managed to hide his emotional problems at work. Dr Deahl
therefore goes on to argue in his second report that in the light of X’s involvement
in traumatising events during Operation Corporate he should have been investigated
by the medical authorities "during or immediately following" the
Falklands "irrespective of his reaction to these events". But
the logic of that observation is that all those deployed in the Falklands who
took part in active fighting or were exposed to hostile fire should have been
investigated by the medical authorities regardless of any signs of psychological
distress. In my judgement that is unrealistic (see Part A section 12 Detection)
and in any event would not have made any difference in a case such as that of
X.
4.40 Culture
The
Claimant says that there was "a culture of toughness within the Regiment
which has always existed." There can be no issue as to that. As Brigadier
Chaundler says in his supplementary statement –
"One
must not forget that the purpose of a Parachute Battalion is to be an effective
fighting formation; that is what is expected of it and that is what it is. Everyone
in it knows this otherwise they would not be there. It is not a nursery school.
Toughness of body and mind are a prerequisite for success and not to have them,
or to fail, is ‘letting down your mates’, the worst possible thing you can do
when their lives are dependant on you."
4.41 The
Claimant goes on to say that he could not discuss his feelings with anybody for
fear of being seen as weak, and that had he discussed them, his career would have
been badly affected. I accept that that was his perception. But the evidence from
Major Neame, who commanded D Company 2 Para in the Falklands, illustrates the
important point that the ‘culture’ within a unit is a complex concept. He says
–
"I
would agree that the Army has a macho culture. This is however counter balanced
by the fact that there is a great deal of mutual respect for people as individuals.
This was something highlighted by Robert Fox in one of his dispatches from the
Falklands when he referred to the men caring about each other passionately as
individuals – which is why they are such good fighting troops. I believe that
if someone had been suffering, people would have taken heed."
"Whilst
the concept of post traumatic stress was not then formally appreciated, I nevertheless
believe that there was a widespread realisation that we had been through some
trying times, that people’s reactions would differ, and that some might not cope
as well as others. In that context, any medical situation has an impact but I
feel it is wrong to say that psychological difficulties would automatically have
meant the end of a soldier’s career – particularly at this time. In my view, any
soldier with such difficulties would have had a sympathetic hearing. He would
have been treated and the aim would have been to get him back into his peer group
as quickly as possible. Equally, therefore, it comes as no surprise that there
are cases of psychological injuries still emerging."
5.
TIMOTHY CONNOR
5.1 Timothy
Connor was born on 20 April 1961. On 21 April 1980 he enlisted in the Parachute
Regiment. Prior to joining the army he had trained as a face-worker with the NCB,
a job which he left to fulfil his long term ambition to join the forces. He completed
his basic training on 12 December 1980 and was immediately sent to Northern Ireland
where he served until 6 March 1981. In late April 1982, his battalion, 2 Para,
was deployed to Operation Corporate and sailed to the South Atlantic on the MV
Norland. Mr. Connor saw action at Goose Green and Wireless Ridge, and was involved
in assisting the survivors from the Sir Galahad at Bluff Cove. He was discharged
from the army on 5 May 1983 having given notice of his intention to leave the
army at the end of the three year term for which he had enlisted whilst en route
to the Falklands.
5.2 Mr
Connor’s claim is advanced upon the basis that he "suffered a Post Traumatic
Disorder with PTSD, alcohol and substance abuse and/or dependence and depression"
(Amended Particular of Claim para 9 Particulars of Injury) as a result of his
experiences in the Falklands War. There can be no doubt that in common with his
comrades in 2 Para Mr Connor was exposed to the most horrific events. In the battle
for Goose Green he was under sustained artillery, mortar and small arms fire and
witnessed the death and injury of both colleagues and Argentineans at close quarters.
He describes being in a complete state of shock after the battle. But it is clear
from his statement that his reaction to what he had experienced did not affect
his ability to continue to discharge his duties. At Wireless Ridge his company
played a prominent part in the battle. He was again under enemy fire for prolonged
periods, and witnessed in particular the death of Private Parr in friendly fire
and the loss of another member of his platoon who bled to death in front of him
having suffered horrendous injuries to his jaw and throat. As Dr O’Brien, the
consultant psychiatrist instructed by the MoD, says in his report of April 2001-
"…Mr
Connor was involved in a situation in which his life was at risk, in which others
were killed, and in which he was involved in caring for others who were killed.
He felt horrified and at times helpless. This was an event which would be capable
of causing psychiatric injury and capable of causing Post Traumatic Stress Disorder
in a person of normally robust personality."
5.3 But
the MoD does not accept that the evidence demonstrates that Mr Connor has in fact
suffered from PTSD, although Dr O’Brien acknowledges that it is possible that
he has suffered from a number of major depressive episodes since leaving the Falklands
and that he has suffered from alcohol dependence. Accordingly the relevant issues
are
- whether
the Claimant was suffering from a psychiatric disorder attributable to the traumatic
experiences to which he was exposed in the Falklands War following his return
from Operation Corporate and
- if
so, whether it ought to have been detected before his discharge from the army
in May 1983.
Issue
1
The
Witness Statements
In
his witness statement Mr Conner says that after the Argentine surrender he felt
great relief that the war was over and –
"I
was also very numb and withdrawn about what I had lived through. I had seen so
much death and destruction that it was hard to take in. I had decided in Port
Stanley that I wanted to leave the Army as soon as possible. I did not want to
live through this type of experience again. I felt grief and a lot of guilt about
my close friends who had been killed and seriously injured in the Falklands. I
wished that I was dead myself."
5.5 He
says that he and his fellow soldiers began to drink heavily on the MV Norland
on the voyage home, and that when he had been drinking he became aggressive and
was involved in a number of fights. He says that he had difficulty sleeping and
had started to suffer flashbacks after the battles at Goose Green and Wireless
Ridge, which continued on the trip home. 2 Para were flown back to Brise Norton
from Ascension Island and were then sent on two weeks disembarkation leave. Mr
Conner says that during that period he began to drink very heavily to blot out
the memories. He says that he became disenchanted with army life, and on his return
to barracks in Aldershot found that many of his friends who had served in the
Falklands were drinking heavily and becoming involved in fights. He says that
he was often warned about his behaviour by his superior officers, but not officially
charged or fined.
"I
believe they took the view that we had all been through a lot in the Falklands
and that we were just releasing our aggression."
5.6 His
company commander, Major Neame says in response that a soldier would normally
only have come in front of him if he was formally charged, and this would be reflected
in his records. The Claimant also contends that in the aftermath of the war he
and other Falklands veterans were given tasks such as excessive cleaning and pointless
marching exercises. Mark Lambird says the same. But their evidence is strongly
contested by Major Neame, who commanded D company in the Falklands and for the
following 18 months, and who says -
"…I
can only say that this is utter rubbish and ask to what possible purpose. Rather,
the view of the chain of command was that these men had more than proved their
worth and should be held in the highest esteem for continuing to uphold the proud
traditions of the Regiment. To have imposed such a regime for such objectives
claimed by Lambird would have flown in the face of all reason, logic and justice."
5.7 The
Claimant also contends that the Regiment tried to discourage men from grieving
properly, but again Major Neame takes issue with him saying –
"The
Regiment were going to great lengths to make sure full justice was done to these
event and to the next of kin who were involved. I viewed this as an important
and essential part of naturally needed grieving process for lost comrades in arms
– and there are few relationships that are closer and more tested than that. Frankly
anything else would have been unthinkable and simply not accepted. We were paying
due respects and each and every funeral was a moving experience."
Finally
the Claimant says in his first statement -
"It
was very hard to talk about my emotional problems in an atmosphere in which the
Battalion was very hyped up and quite rightly proud of its achievements in the
Falklands. Showing any emotion within this macho culture would have been impossible.
I would have been humiliated had I tried to talk to my Superior Officers or my
Medical Officers about my experiences. I would get some relief and comfort by
talking to some of my colleagues of the same rank as me who had served in the
Falklands as we drank in pubs. I could see that a lot of my colleagues were having
relationship problems and their families were breaking up since they had come
back from the Falklands. It did not occur to me that any of us had suffered psychological
injuries in the Falklands."
Again
Major Neame expresses a different view –
"I
would agree that the Army has a macho culture. This is however counterbalanced
by the fact that there is a great deal of mutual respect for people as individuals…I
believe that if someone had been suffering, people would have taken heed. On top
of that, there was an acknowledgement that we had had a harrowing number of weeks
in the Falklands and that therefore there could have been a price to pay. On our
return, there was a degree of maturity exhibited by the men. They no longer needed
to prove themselves by beating up Aldershot – they had done something more testing
and proving. They were more sensitive and responsive. There was also an understanding
amongst the NCOs that a number of the soldiers had been very young and I believe
they would have kept an eye on them.
Whilst
the concept of post traumatic stress was not then formally appreciated, I nevertheless
believe that there was a widespread realisation that we had been through some
trying times, that people’s reactions would differ, and that some might not cope
as well as others. In that context any medical situation has an impact but I feel
it is wrong to say that psychological difficulties would automatically have meant
the end of a soldier’s career – particularly at this time. In my view any soldier
with such difficulties would have had a sympathetic hearing. He would have been
treated and the aim would have been to get him back in to his peer group as quickly
as possible."
5.8 The
Claimant’s evidence as to his condition after his return from the Falklands is
borne out by the evidence of two fellow members of 2 Para, Mark Lambird and Andrew
Kenyon. Mark Lambird says that he was drinking heavily and getting involved in
fights in pubs around Aldershot. He also says that the Claimant became withdrawn
and anti-social. Andrew Kenyon gives similar evidence. He also noted that the
Claimant’s concentration became very poor; and on occasions they discussed experiencing
flashback images of horrific scenes that they had witnessed. The Claimant’s father
describes how he appeared to his family when on leave in the period following
his return from the Falklands. He says that he was withdrawn and on occasions
verbally aggressive. He showed a lack of emotion, and his sense of humour had
disappeared.
5.9 The
Service Records
In
late September 1982 the Claimant transferred to the Red Devils display team. He
claims that this was in order to move out of D Coy and the possibility of being
sent to the front line in the event of any future conflict. The contemporaneous
record made by his company commander on 28 September 1982 reads -
"Connor
is due out in May 1983 after a 3 year engagement. If he gets selected for the
Red's 1983 season, he would sign on probably for another 3 years and we in the
end would get some more soldiering out of him. Otherwise I fear that he will leave
in May. Recommended for immediate transfer to Red Devils. Is currently on a freefall
course with the Reds and Cpt Nunn considers him promising."
5.10 The
Claimant became a trainee member of one of the two display teams. In December
1982 he broke his leg following a parachute jump and never completed his training.
He now says that he deliberately opened his parachute late; but it is noteworthy
that there is nothing to that effect in the record of his interview with Dr Bisson
in August 1994 or that of his first interview with Dr O'Brien in the following
year. Moreover the Claimant told Dr Higson that he very much enjoyed his experience
with the Red Devils. In the event the Claimant's leg healed satisfactorily.
5.11 The
Claimant's confidential report for December 1982 reads as follows-
"Pte Connor
is a steady and hardworking soldier. His weapon handling, fieldcraft and bearing
are all of a good standard.
At
present however Connor appears to have lost his enthusiasm for the Army and has
declared his intention to leave. I sincerely hope that his enthusiasm returns
and with more experience he should be considered as a potential NCO."
5.12 The
Claimant says that in March 1983 he had a series of interviews in which his Superiors
tried to persuade him to stay on. There is no reference to such interviews in
the Claimant's Personal File, but I accept his evidence. It is inherently probable
that the Regiment would not have wanted to lose a good soldier.
5.13 As
to his history following his discharge, in September 1984 he applied to rejoin
2 Para. His application was accepted but then withdrawn. He expressed further
interest in November 1986 but did not reapply. At paragraph 76 of his witness
statement the Claimant states that he knew that by re-enlisting there would be
the possibility that he would be sent out to Northern Ireland again, but he was
prepared to get on with the job, and it was the memory of the Falklands which
led him to back out at the last minute. The account recorded by Dr Freeman is
that when the Claimant realised there was a possibility that he would be sent
to NI and he might have to fight in the front line, he became very hesitant and
decided against it.
5.14 Since
leaving the Army Mr Connor has been employed in a wide range of jobs; between
1984 and 1987 by Rolls Royce as a process operator, in the late 1980’s as a casual
labourer, in 1989 by BPM Plastic Materials as a driver, in late 1990 to early
1991 by the Royal Ordinance as a process worker, between 1991 and 1993 as a driver
and as a factory worker, as a self-employed brick-layer in December 1993, as a
doorman and as a security officer between 1998-2001.
5.15 During
the 1990s the Claimant was sentenced to prison on three occasions, in 1990 for
assault, in 1996 to three and a half years' imprisonment for holding up a taxi
driver with a knife, and in 1999 to 10 months' imprisonment for possession of
cannabis with intent to supply. There were also a number of convictions for less
serious offences.
5.16 The
Medical Records
There
are no entries relevant to the Claimant's psychological state in his F Med 4.
The record of his discharge medical is unremarkable.
5.17 The
GP records for the period from 1984 show no evidence of any psychological problems
throughout the 1980s. On 5 January 1990 the Claimant saw his GP who noted that
he was:
–run
down. Says "feels he is not under stress"
On
20 June 1994 a psychiatrist, Dr Medley, wrote to the Claimant's GP saying -
"Mr Connor's
solicitor, John Mackenzie…, has written to me asking if I could see his client
in order to treat his PTSD, he is a Falklands veteran…"
On
6 July 1994 the GP, Dr Wiecek, wrote to Dr Medley inter alia as follows
-
"He
tells me that his solicitor, who possibly specialises in such cases, has suggested
that he have a full assessment. He in fact at the moment does not have much in
the way of symptoms. He gets occasional insomnia especially after watching war
movies relating to this period. Occasionally he gets startled by bangs. Shortly
after returning from the Falklands he suffered from insomnia and took sleeping
tablets from the surgery back in 1982, but there is no record of this in his notes."
On
2 August 1994 the Claimant was seen by Dr Medley, who reported on 31 August 1994
concluding that the Claimant -
"…continues
to have some post traumatic symptoms and there is no doubt that his personality
in life has been changed by his Services experiences. I think the depression of
mood is secondary to this."
Dr
Medley did not prescribe any medication but said that he would see the Claimant
for 2 or 3 sessions of counselling to help him ventilate his experiences.
5.18 On
20 September 1994 the Claimant saw his GP again. The clinical picture had apparently
changed dramatically -
"extreme
PTSD, ex parachute regiment and Falklands. Under Dr Medley. Stressed, anxious
and depressed is having to move out of rented accommodation. Housing Officer home
(sic) said will have to make himself homeless before they will house him.
Not
eating ulcers playing him up…
Has
felt suicidal but emphatically refuses any help from present psychiatrist or our
? team, or any medication offered. ? admission."
5.19 On
8 November 1994 Dr Bisson reported on the Claimant for medico-legal purposes following
an interview on 5 August 1994. The Claimant told Dr Bisson that he had never thought
he might be suffering from PTSD until he contacted Mr Mackenzie, his solicitor.
5.20 On
8 December 1994 the Claimant was reviewed by Dr Medley who referred him to Dr
Regel of the Behavioural Psychotherapy unit. The Claimant was seen in the Nottingham
Psychotherapy Unit for assessment on 3 February 1995 and was deemed to be suitable
for CBT; he was seen by Dr Regel on 24 April 1995 for the start of his treatment,
but then cancelled three further appointments. In the result he received no CBT
and his name was put back on the waiting list.
5.21 On
8 January 1996 the Claimant took an overdose and was admitted to the King's Mill
Centre. The notes refer only to "recent depression due to breakdown in relationship
with partner". Dr Keitch, a forensic psychiatrist, reported on the Claimant
on 2 May 1996 and concluded -
"In
my opinion Timothy Connor is a 35 year old man with a history of PTSD resulting
from combat-related trauma. In addition he has a history of interpersonal violence
unrelated to PTSD. There is no evidence of mental illness or psychopathic disorder
and I have no medical recommendation to make to the Court. The offence for which
he has been found guilty has no medical or psychiatric associations".
On
7 May 1996 Dr Barczak, a psychiatrist instructed by the Claimant's solicitors
to provide a report in the criminal proceedings, diagnosed PTSD.
5.22 The
Claimant underwent minimal treatment following his referral to a psychiatrist.
It appears that he was put on a short course of anti-depressants in August 1995
and again in January 1996. He did not respond to attempts to offer him alcohol
rehabilitation in 1999. He was seen by a CPN in prison in September 1999 and not
thought to have much in the way of PTSD symptoms. In March 2000 he was prescribed
fluoxetine. He was seen in prison by Dr Medley in May 2000 and some improvement
was noted. The Claimant cancelled appointments with Dr Medley after his release
in July and July 2000, and when he eventually saw him in August of that year the
clinical picture was much improved -
"He
remains well and seemed very fit today. His mood is good, he is sleeping well
and is now working full time. He is actually working as an electrician in Nottingham
and is still doing 3 days a week with a security firm in the evening. He has an
occasional pint but is not drinking or using any illegal drugs otherwise.
Occasionally
his sleep is disturbed with nightmares, if he sees war films, but otherwise there
really are no signs of PTSD and I would not currently regard him as clinically
affected by this."
5.23 The
Expert Evidence
The
Claimant’s principal expert is Dr Freeman who reported on 11 February
2002. He also relies upon the report from Dr Higson dated January 2002; and his
advisers have included in the bundle the report from Dr Bisson prepared after
he saw Mr Connor in August 1994.
5.24 Dr
Freeman considers that Mr Connor developed "…an Acute Stress Reaction
…that probably merged into Acute Stress Disorder and then into definite Post Traumatic
Stress Disorder, all part of one continuous process." He recognises that
it is difficult to make a retrospective diagnosis nearly twenty years after the
event and that it is particularly difficult to be sure about the onset, "…but
from Mr Connor’s account, he certainly appears to have met the diagnostic criteria
for PTSD, certainly by the time he was back in Aldershot." He also considers
that some of his symptoms were being masked by excess alcohol intake but "certainly
there were clear and definite symptoms throughout the rest of his service career,
which could have been detected by direct questioning or by inference from his
personality and behaviour change which was noted."
5.25 He
says that he cannot make a firm diagnosis of ASD because he cannot be sure that
criterion B, which involves experiencing dissociative symptoms either during or
shortly after the traumatic event, was met.
5.26 The
report from Dr Higson adds little. He differs from Dr Freeman in one respect in
that he confidently asserts that Mr Connor suffered an ASD.
5.27 Dr
O’Brien has provided three reports dated the 4 July 1995, April 2001 and March
2002. In his first report he says that the Claimant may have developed PTSD as
a consequence of his experiences in the Falklands. But he has difficulty in assessing
the presence, and if present the severity, of the condition for a number of reasons.
First both he and Dr Bisson found indications of over reporting of symptoms. Secondly
he is concerned that there have been changes in the accounts given by Mr Connor
over the years. As he says at the conclusion of his third report "…there
have been unexplained variations in symptom presentation and severity and…tests
have not always matched with symptom complaint."
5.28 Thirdly
he questions why Mr Connor did not complain of symptoms of PTSD for over ten years
after leaving the army. Fourthly he notes that Mr Connor has only been prepared
to undertake minimal treatment of the condition but that his symptoms are acknowledged
by all recently to have improved without treatment. But he is able with
confidence to make a diagnosis of recurring depressive illness, probably starting
in 1982, and alcohol and/or drug dependency since leaving the army. He attributes
the recent improvement in Mr Connor’s condition to control of his alcohol and
drug dependency.
5.29 I
have carefully considered the reasons advanced by Dr O’Brien for his conclusion
that he is not able to say whether or not Mr Connor had suffered from PTSD; but
I am satisfied that Dr Freeman has demonstrated by his analysis of the evidence
and application of the diagnostic criteria for DSM IV that on the balance of probabilities
Mr Connor has suffered from PTSD, since his return to the UK after Operation Corporate.
But it is also clear that he has suffered from recurrent depression and from alcohol
and/or drug dependence again attributable, on the balance of probabilities, to
his experiences in the Falklands. In my judgment the recurring depressive illness
and alcohol and/or drug dependence have been of far greater significance than
the PTSD, which on the evidence has had a very limited impact.
5.30 Issue
2
The
second and critical issue is whether each or any of these conditions ought to
have been detected during the period of less than a year between the action in
the Falklands and Mr Connors discharge from the army.
5.31 I
accept that there was a marked change in Mr Connor upon his return to the United
Kingdom. But as I have said repeatedly in the context of the lead actions no one
can undergo experiences of the type to which 2 Para were exposed without being
permanently affected.
5.32 Secondly
I am satisfied, notwithstanding the evidence of Major Neame, that Mr Connor was
drinking much more heavily on his return to Aldershot and was on occasions aggressive
when in drink. But he was not alone in that, and I do not consider that such behaviour
ought of itself to have given rise to a suspicion on the part of his superiors
that he was suffering from a psychiatric condition that ought to be investigated.
5.33 The
contemporary evidence demonstrates that he became disenchanted with army life
during this period; but that is not surprising given that he had given notice
to terminate his engagement en route to the Falklands. The attempts made by his
superiors to persuade him to reconsider his decision demonstrate that he was held
in high regard and certainly does not suggest that they had any reservations about
his mental state. Furthermore he was transferred to a prestigious unit, the Red
Devils Freefall Team. Again that does not suggest a man recognisably suffering
from a reaction to combat such as to require medical assistance. In short there
was nothing in the Claimant’s performance at work to alert his superiors a psychological
problem.
5.34 In
relation to the issue of detection Dr Freeman makes an interesting observation
–
"It
may well have been that if Mr Connor had been asked direct questions relating
to sleep disturbance, nightmares, flashbacks etc he would have denied them. It
is impossible to know that, but in my opinion if he had been asked such questions
in an appropriate and sensitive way and in culture where fear and distress were
acknowledged and not a source of stigma, then it would have been much more likely
that he would have responded positively."
That
of course presupposes that there was any basis for asking direct questions of
the claimant at discharge, and in my view there was not. Furthermore given his
failure to seek help between 1983 and 1994, and his disinclination to engage in
any treatment after 1994, I am satisfied that it is unlikely that direct questioning
would have revealed his condition.
5.35 Culture
The
Claimant’s witness statements contain the following passages directed to the issue
of the culture within 2 Para.
"It
was very hard to talk about my emotional problems in an atmosphere in which the
Battalion was very hyped up and quite rightly proud of its achievements in the
Falklands. Showing my emotion within this macho culture would have been impossible.
I would have been humiliated had I tried to speak to my Superior Officers or my
Medical Officers about my experiences."
"When
I came back from the Falklands, I no longer wanted a career in the Paras but it
was still not the done thing to talk about weakness. We were taught throughout
out training not to show weakness. This affected me in the Falklands and upon
my return, up to my discharge."
"I
cannot recall any of my colleagues being referred to a psychiatrist but the stigma
about psychiatric injuries certainly existed. If I had reported my unusual symptoms
of anger and aggression, concentration problems, nightmares and flashbacks etc
to any of my superiors, I do not believe my disclosure would have been kept confidential.
It would have been reported up the chain of command and details would have been
inserted on my reports. Again, this was not a particular problem to me as I wanted
to leave but I still had the best part of a year to live with the Parachute regiment
after my return. If I had revealed my weakness, my remaining months would have
been even more unhappy."
5.36 I
readily accept that that was his perception. But it is to be contrasted with the
views expressed by Major Neame to which I have made reference in paragraphs above.
Their evidence demonstrates a point to which I shall return in my general conclusions
on the lead cases, namely that the prevailing culture within the army or within
a unit is a complex concept, manifesting itself in different forms at different
levels within the military hierarchy.
6. WILLIAM
SUTHERLAND
6.1 William
Sutherland was born on 23 September 1957. He entered the Royal Navy on 5 September
1975, shortly before his 18th birthday. He joined as an Artificer Apprentice
but soon moved to Electrics/Weapons. He served for 21 years leaving on 17 May
1996 in the rank of Chief Petty Officer (Weapons Engineer). Mr Sutherland saw
service in the South Atlantic during the Falklands War on HMS Plymouth and in
the Gulf (after the active phase of the war) in HMS Bicester.
6.2 On
8 June 1982 HMS Plymouth was attacked by fighter bombers of the Argentine air
force and was struck by a number of bombs. It is the Claimant’s case that in the
attack he was exposed to trauma that caused an ASR which subsequently developed
into PTD/PTSD with a phobic anxiety state, and secondly that his condition was
aggravated by his experiences aboard HMS Bicester when the vessel was involved
in mine sweeping operations in the Persian Gulf. In 1995 he suffered a breakdown
during a Standing Sea Emergency Exercise on HMS Cromer, and was in due course
referred to RNH Haslar where Surgeon Commander O’Connell diagnosed PTSD.
6.3 The
claim is supported by an expert report from Dr Freeman, a consultant psychiatrist,
who interviewed Mr Sutherland in late 2001 and early 2002. His report is dated
18 February 2002. He considers that Mr Sutherland suffered an acute stress disorder
in the immediate aftermath of the attack on the HMS Plymouth which developed into
a post traumatic stress disorder in the month after he returned from the Falklands
War. He acknowledges that the symptoms fluctuated and says -
"I think
it unlikely Mr Sutherland continued to meet the diagnostic criteria for post traumatic
stress disorder for the whole of the 1980’s though he certainly continued to have
some symptoms."
He
takes the view that the PTSD re-emerged during the Gulf War; and that Mr Sutherland
again met the diagnostic criteria for PTSD from 1992 until 1995 when the condition
was formerly diagnosed by Dr O’Connell. He considers that Mr Sutherland has suffered
from a phobic disorder, a condition that would normally be subsumed under a diagnosis
of PTSD, but that there was a period in the late 1980’s when he did not meet the
full criteria for PTSD but continued to meet the diagnostic criteria for a phobic
disorder, the fear being of smoke or fire. He also considers that he has suffered
from alcohol abuse amounting to a disorder from 1982, and a conversion disorder.
6.4 Dr
Kaplan, who was instructed to report on Mr Sutherland by the MoD, examined the
Claimant on 24 April 2001. He accepts that Mr Sutherland has a phobic anxiety
state that developed following his experience on HMS Plymouth, but could find
little evidence that Mr Sutherland had suffered from PTSD. In his view the Claimant’s
continuing psychological disability is due mainly to social and personality factors.
6.5 It
is submitted on behalf of the Claimant that, given the limited ambit of the trial
of the lead cases, it is not necessary to resolve the difference of view as to
whether Mr Sutherland has in fact suffered from PTSD as it is common ground that
he has suffered from a psychiatric disorder, a phobic anxiety state, since the
Falklands War, and the important question is whether that should have been detected
prior to 1995. Furthermore it is conceded in the Lead Action Argument submitted
by counsel for the Claimant that "no doubt if the personal account
(the written account of his problems made in the course of the PTSD Management
Programme that he underwent in the autumn of 1996) were to be preferred to
the witness evidence, Dr Freeman would probably wish to revise his diagnosis of
ASP and PTSD over lengthy periods." I agree that it is not necessary
to make a finding as to the true diagnosis. For present purposes the issue to
be resolved is whether the fact that the Claimant was suffering from a psychiatric
disorder following his experiences in the Falklands War ought to have been detected
before 1995.
6.6 The
Claimant’s career in the Royal Navy before Operation Corporate was unremarkable.
He was involved in technically demanding work for which he was plainly well qualified.
It is noteworthy that he only failed officer selection for the RN by reason of
his astigmatism.
6.7 In
April 1982 the Claimant was Control Engineer holding the rank of Weapons Artificer,
second class. He was serving on board HMS Plymouth under the command of Commander
Pentreath on exercises in the Mediterranean when she was diverted to the South
Atlantic after the Argentinean invasion of the Falklands. Her first destination
was South Georgia where she was involved in Operation Paraquat, the recapture
of the island. From South Georgia HMS Plymouth rejoined the Task Force as it approached
the Falkland Islands. HMS Plymouth had various combat roles in the course of Operation
Corporate including anti-aircraft, anti-submarine, insertion of special forces
and bombarding Argentine positions. When the amphibious landing took place, her
role was to support and protect shipping in San Carlos Water.
6.8 On
8 June 1982 HMS Plymouth was attacked by five Mirage fighter-bombers. She was
hit by 4 bombs. None of the bombs exploded, but one landed on the flight deck
and detonated a depth charge causing considerable damage. Five sailors were injured
in the attack. In his witness statement Mr Sutherland describes how the ship filled
with smoke and with the water used to extinguish the fires, and says -
"I could
hear voices in the smoke in the level below me and some of these voices were in
distress. I recognised some of these voices. At this point, I froze, transfixed,
and for a few seconds thought I was going to die as the smoke crept towards me.
Then one of my colleagues rushed passed me, spoke to me and I snapped out of this
state."
6.9 HMS
Plymouth survived the attack, received temporary repairs and continued her operational
role until the ceasefire. She then returned to the UK via Gibraltar arriving at
her base at Rosyth on 14 July. The Claimant says that on the way home he suffered
nightmares and flashbacks. He also says in his supplementary statement that when
in Gibraltar he had a conversation with Charge Chief Petty Officer William Lane,
during the course of which he said that he was emotionally drained after the Falklands
and had been having problems sleeping and eating since the explosion. CPO Lane
apparently advised him that 'normal life would drag him back to reality'
and that he was not the only crew member with such problems.
6.10 The
Claimant had met Diane Easton in 1981. The couple married on 9 April 1983 and
their son, Alistair, was born on 21 August 1984. On 17 July 1982, only
three days after HMS Plymouth returned from the South Atlantic, Ms Easton's mother
was abducted, sexually assaulted and then murdered. The Claimant understandably
had difficulty in dealing with these horrendous events.
6.11 The
Claimant’s Divisional Officer Report Forms dated 1 June 1982, 18 June 1983, 12
June 1984, 7 March 1985 and 17 January 1986 indicate that in the years following
the Falklands War he was not having any difficulties at work. He was promoted
to Petty Officer in June 1981, Assistant Chief Petty Officer in March 1985 and
Chief Petty Officer in March 1988. On 12 January 1984 Lt Cdr Moores noted that
the Claimant 'puts on a very formal front. This seemingly strong approach belies
his actual strength as it also detracts from his ability to control his subordinates
and converse with his colleagues'. On 17 January 1986 it was noted by Lt Cdr
Weston that 'his wife has a nervous disposition as a result of a recent family
tragedy, and this could give rise to problems during periods of separation'.
6.12 It
is clear from the Claimant’s 'Record of Examinations, Qualifications, Courses'
that, apart from failing one course in October 1983, he passed all the qualifications/courses
that he sat throughout his career.
6.13 There
is one unfavourable report dated 4 June 1986. The Claimant had been transferred
to HMS Dulverton in January 1986 and appears to have had problems due in part
to lack of experience on small ships. In the view of Lt Cdr Burden -
"Sutherland
joined Dulverton with little experience of small ships and found it difficult
to respond to command requirements. Compassionate problems proved him to be somewhat
emotionally unstable when put under pressure by his wife. After continued demands
by command, and finally scrutiny by squadron staff his dept now runs on an 'even
keel', a close working relationship with DWED has assisted the team effort. As
a senior rate Sutherland is not a particularly strong character and finds his
leadership awkward to a point of embarrassment. This is improving slowly as he
settles into the ship. He will [word illegible] with the right guidance, eventually
provide command with all that is expected of a CPOWE [Chief Petty Officer Weapons
Engineer]."
6.14 The
Claimant was formally warned by his CO that unless his performance as a WEO improved,
application would be made to seek his ‘Reversion for Unsuitability’. It
is also clear that at this stage the Claimant’s marriage was in difficulties.
6.15 In
June 1987 the Claimant received a letter from his wife saying that she was finally
leaving him. It is a moving letter written against a background of domestic violence.
She implored him to seek psychological help and went on to say -
"…you
must get help from either the Navy or NHS, because what you are suffering can
be stopped before it is too late…"
6.16 Until
March 1987 the Claimant’s medical records are unexceptional. On 24 March 1987
he was seen by a medical assistant at Cochrane. He complained of his legs feeling
'cold inside' and of occasional loss of feeling, and the MO's opinion was
sought. The MO saw the Claimant that day and noted that these complaints had lasted
for about 2 days and were 'subjective' not 'objective'. In his opinion
the presentation was 'very strange'; and the notes contain a reference
to 'supratentorial overtones' and to the remote possibility of a
spinal tumour.
6.17 The
Claimant was seen again by the MO three days later when it was recorded that his
alcohol consumption was 4 pints and 12 shorts per week and that he had separated
from his wife 3 months previously, on 4 May 1987 when some improvement was noted,
on 4 June 1987 and on 14 July 1987. On 4 June Surgeon Lt Allison referred the
Claimant to a physician at the MRS RAMC Edinburgh. His referral letter mentions
the Claimant’s personal problems and that 'over the last week while on leave
at home he has been drinking heavily to get to sleep'; but S/L Allison was
'wary to attribute [his symptoms] solely to his personal problems'. On
8 June 1987 the physician did not find much in the way of organic, sensory problems
and noted the stressful situation at home. On 14 July 1987 the MO noted 'generally
symptoms are much better…domestic situation becoming sorted and divorce proceeding'.
6.18 On
3 August 1987 Surgeon Lt Allison, who by then must have become very familiar with
the Claimant and his problems, carried out a PULHEEMS examination. The Claimant
scored M2 S2 and the following is noted -
"Smoking 2
cigars a day
Alcohol 2
pints, 6 shorts per week
No
persistent medical problems"
6.19 He
was seen again by the MO on 23 September, 30 September and 21 October 1987, on
two of the three occasions by Surgeon Lt Allison, complaining of a loss of voice.
The symptoms started 3 days before the first visit and were accompanied by a cough
and a blocked nose. The MO's impression was '?bacterial' and on the last
occasion the voice was noted to be improving.
6.20 The
Claimant’s next Divisional Officer's Report Form was dated 8 December 1987. It
was generally favourable and a considerable improvement on the previous report.
It was noted that –
'[he]
decided to sign on to complete his 22 year service only a few days before he was
due for release on completion of his CS1. His complicated personal life has been
finally resolved as he and his wife have separated and have started divorce proceedings…'.
6.21 On
2 February 1988 the Claimant was admitted to the sick bay of HMS Cochrane with
a history of having fallen at home as a result of a loss of consciousness. Surgeon
Lt Commander Martin mentioned the previous history of June 1987 and referred the
Claimant to a physician, Surgeon Lt Caiger, for a further opinion. At this stage
the doctors were concerned to rule out multiple sclerosis. Surgeon Lt Caiger was
based at the RNH Haslar and the Claimant was seen by him on 3 February. His 'complex
history' was noted. Surgeon Lt Caiger first reported on the Claimant on 11
February. He took a full history of the Claimant’s 'intermittent somatic symptoms',
acknowledged that a succession of investigations had failed to demonstrate neurological
or other disorder, and then referred to the Claimant’s marital problems. In his
view -
"His
history is relevant in that he was brought up in a small Highland village and
experienced the strict Church of Scotland upbringing with caution, conformity
and Christian values being the norm. He has always worked very diligently and
professes high ideals and a need to help others. He is a small Scot with bushy
beard who talked rapidly and in a very stereotyped fashion with little show or
admission of emotion and much rationalisation and defensiveness. However, it is
evident that he married quite late after seeking the perfect partner in anticipation
of a permanent relationship. He chose a younger partner who, after 4 years and
without prior warning, having mothered his son, stated that she was no longer
able to accept married life and sought higher education and a different way of
life. After specifically exploring his response to this, it became evident that
he was very hurt emotionally, despairing, thinking about ending it all and resorting
to heavy rum drinking in January 1987. He never expressed his emotions to her
apparently and contained his feelings and anger…"
6.22 Surgeon
Lt Caiger referred the Claimant for a psychiatric opinion, and he was seen on
the same day, 11 February, by Group Captain (Retd) Rollins. Dr Rollins had served
in the RAF Medical Branch from 1960 to 1985. From 1985 to 1990 he was employed
by the MoD as a Civilian Consultant Psychiatrist at RNH Haslar where he was involved
with Surgeon Captain O’Connell and the psychiatric team in the introduction of
the PTSD Treatment Programme. Dr Turnbull, who was called on behalf of the Claimants
in the course of the trial of the generic issues, confirmed that Dr Rollins was
knowledgeable on the subject of PTSD.
6.23 It
is clear from Dr Rollins' notes that the Claimant complained of heavy drinking
in January/February 1987, which coincided with the breakdown of his marriage.
In Dr Rollins' view the Claimant had an 'over-controlled' personality,
was not suffering from formal psychiatric illness, but was in a 'stressed'
state attributable to marital difficulties and a fear that he might be suffering
from a serious illness. Dr Rollins recommended relaxation counselling and a psychiatric
review 3 months thereafter. The Claimant was also noted to be keen to return to
Rosyth. Dr Rollins has made two written statements, in which he says that he took
he took a detailed history from the Claimant covering his personal and family
life and his service history, evidence that is borne out by his contemporary notes.
He also says that the Claimant did not give any indication to him of symptoms
indicating that he was suffering from PTSD or a phobic anxiety state between 1982
and 1988, and that in the course of two long interviews he was "unable
to discover any abnormalities in his mental state."
6.24 Surgeon
Lt Caiger reported further on the Claimant on 16 February. The 'unremarkable'
psychiatric assessment was noted but a brain scan revealed a possible abnormality
in the right fronto-parietal region. On 22 February 1988 Surgeon Lt Commander
Turvill at RNH Haslar excluded any obvious neurological problem, but a CT scan
was not carried out until the Claimant returned to Scotland.
6.25 Dr
Rollins provided a Case Summary relating to the Claimant on 24 February. It was
noted that the Claimant appeared to be over-anxious and that 'his usual over
control of emotional experiences has been relevant to some of his somatic symptoms'.
The Claimant was keen to learn relaxation techniques and to return to the Gulf.
Dr Rollins said in conclusion -
"On
the present evidence, and in the absence of formal psychiatric illness today,
he remains S2 M2 but should be reviewed in 3 months at the Scottish Psychiatric
Clinic to be assured that he has remained symptom free and that he is coping with
the breakdown of his marriage. Medication is contra-indicated and he has been
warned off excessive alcohol usage."
6.26 The
Claimant says in his witness statement that he believes that he was very open
and honest with Dr Rollins throughout the examination. But he goes on to say –
"I did
not mention my experiences in the Falklands to Group Captain Rollins because he
did not ask me and also because I did not then relate my mysterious physical problems
and a lot of my emotional problems to the Falklands. I still had little insight
into the fact that I had sustained psychiatric injuries in the Falklands".
"I
was determined not to show any signs of weakness, because I feared that what I
told Gp Cpn Rollins would be passed to my superiors and this would then damage
my career."
"I
felt that throughout the half hour examination Gp Cpn Rollins was not listening
to me properly. I kept on referring to various problems I was having in my life,
yet he always tried to turn the conversation around and to focus on my marriage
problems.
Dr
Rollins responded in his further statement –
"At
paragraph 50, the Claimant says that I did not ask him any questions about his
experiences in the Falklands and I took no details of his service history. Once
again, the report dated 11/2/88 refers to the fact that in the absence of service
certificates 'I can only accept his statement that his career has been blameless
and exemplary to date though as an aside he informed me that he had attended an
AIB in the past but felt that he should reject them for their somewhat irrelevant
and poor standards.' This indicates to me that we did discuss his service career
and also that he did not consider any part of it, including his service in the
Falklands, to be of particular significance."
6.27 On
27 April 1988 Surgeon Lt Inwood referred the Claimant to a psychiatrist at HMS
Cochrane at the request of Group Captain Rollins. It appears that the Claimant
must have been seen briefly by Dr Inwood because the F Med 7 for that date reads:
'he continues to keep well both physically and mentally'.
6.28 The
psychiatrist who saw the Claimant on 4 May 1988 was Surgeon Cdr Price. The Claimant
remained well and 'there was no evidence of a psychiatric problem at present'.
His pins and needles and numbness were thought to be conversion symptoms but did
not prevent him from doing his normal job. No further review was required unless
further symptoms developed.
Dr
Price's report dated 4 May 1988 refers to the results of a CT scan taken on 22
April.
"He
has also been informed that his scan was slightly abnormal in that it showed narrowing
of the blood vessels on the right side of his brain. We discussed these two matters
today. Whilst the evidence points to these symptoms being conversion symptoms
they do not now prevent him from doing his normal job. He remains Med Cat S2 M2.
No further review is required in this clinic unless he develops further symptoms."
6.29 The
Claimant’s next Divisional Officer's report was dated 17 June 1988. It recorded
that –
"There
is no doubt that he is dedicated to the service and he has not hesitated to put
personal convenience second. Overall he has worked hard to overcome the negative
aspects of a slightly insecure character and has achieved a satisfactory performance
in all areas."
6.30 The
Claimant’s medical history between the summer of 1988 and his departure for the
Gulf in the early spring of 1991 was unremarkable. During the same period his
Divisional Officer Reports were reasonably satisfactory. The report by Lt Howard
dated 29 May 1989 described him as eccentric, hard-working and showing potential
for promotion to Charge Chief in the future. A further report by Lt Cdr Howard
dated 5 December 1989 noted continuing improvement in technical areas although
he "can at times be too voluble" It was also noted that he had
recently submitted 18 months notice to leave the RN. The report by Lt Naden, Cdr
Quade and Cpt Tickner dated 3 April 1990 noted variable performance and that he
was disenchanted with the Service. In the view of Lt Naden -
"He is a satisfactory
technician however his overall performance would improve if he approached defects
in a calmer manner and controlled his impetuous nature. His reaction to pressure
situations gives rise to a considerable change in his character from normally
placid but enthusiastic man to one of agitated eccentricity"
The
report by Lt Thompson dated 14 July 1990 was favourable.
"He is at present
serving 18 months notice but his keenness and loyalty to the service give the
impression that he wishes to continue in the RN. It would be a pity if the Service
were to lose such a diligent Senior Rating and he must be encouraged to withdraw
his notice. He has recently suffered marital upheavals but now that things have
settled down he would be well-advised to re-assess his aims in life."
The
report by Lt Garner, Lt Cdr Alexander and Cdr Merrett dated 8 January 1991 was
very favourable and noted potential for promotion to Charge Chief.
"He envokes
(sic) a commendable enthusiasm for the service and indeed has recently withdrawn
his 18 months notice for discharge.
He
has had a fairly stormy private life during the past 12 months but to his credit
he has not allowed this to interfere with his work on board. He appears to have
settled his personal affairs now and is looking forward to more stable home life
with his new fiancee.
Although
occasionally outspoken Sutherland enjoyed a good rapport with peers and superiors
alike, and was generally well respected by his subordinates.
Sutherland
is a mature and sensible Senior Rating who has grown in stature."
6.31 In
January 1991 the Claimant sailed for the Gulf on HMS Bicester under the command
of Cdr Curd. The vessel arrived in the Persian Gulf on 6 March 1991 after the
war had finished and spent the next 5 months on mine clearing operations in the
waters around Kuwait.
6.32 The
Claimant says that he found his experiences in the Gulf stressful, in particular
the presence of smoke from burnt out oil wells which induced a state of panic
and caused him to cry quietly, an incident when a controlled explosion in the
middle of the night caused him to wake and panic, and an engine room fire when
HMS Bicester was close to the UK. He says that after his return to the UK his
friends and family noticed a change in his behaviour.
6.33 The
MoD disputes aspects of the Claimant’s history of his time in the Gulf, and relies
on the evidence of Cdr Curd and Lt Cdr Cox. In the view of the latter, who served
as First Lieutenant on HMS Bicester during the relevant period and must have known
the Claimant well -
"It
is my opinion that the Claimant was not a calm man. He had a feisty personality
and was easily excited. I believe that he would have reacted more than most in
a stressful situation. However, it was never suggested, by him or others that
he was acting in any way differently from the way he normally acted. Professionally,
he was very satisfactory. He did his job well."
6.34 The
Claimant’s Divisional Officer reports for the period 1991-92 are positive. On
30 June 1992 Lt Cdr Gasson noted -
"Of
average intelligence, he has made great efforts in all his areas of responsibility,
demonstrating a tenacious and determined approach. Acting both as DWEO and WEO,
he has provided constant support to the Command and become a reliable and worthy
Divisional Officer. A knowledgeable Duty Technical Senior Rate, he is totally
dependable, striving for answers until a problem is solved. His paperwork still
requires attention but he shows encouraging signs of improvement. A most pleasant
man, his naturally friendly manner and infectious good humour have made him a
popular member of the Ship's Company. Sutherland has much to offer the Service
and is recommended now for promotion and 2OE."
6.35 On
10 May 1995 the Claimant was serving on board HMS Cromer during a Standing Sea
Emergency Exercise when he suffered a breakdown and soiled himself. He was seen
by Sgn Lt Smith at Cochrane on the following day and complained inter alia of
flashbacks and nightmares of increasing frequency. The notes also read -
"somatic
symptoms - gets to sleep OK but wakes many times during the night, and wakes early.
Appetite ¯ ¯
. Lost weight, 1/2 stone since Xmas.
NB.
Has now admitted he has a problem"
6.36 Sgn
Lt Smith referred the Claimant to Surgeon Captain O'Connell at RNH Haslar. His
letter of referral contained the following passages –
"For
some years he has suffered from flashbacks to situations that happened to him
in the Falklands War and after the Gulf War which centre around being surrounded
by smoke and fire, which he experienced during an episode in the Falklands War
when he remembers standing at the top of a hatchway helping people up the ladder
as smoke billowed from the hatch and started to engulf him. A second experience
which keeps coming back to him is an episode after the Gulf War when involved
in mine clearance. At this time he was asleep in his bunk when an explosion occurred
near the ship, causing him and his mess mates to be thrown from their bunks.
He
has had these flashbacks for some years, but in the past they have been very occasional
and he has brushed them off without giving them any serious thought. However,
recently they have been occurring with increasing frequency and are especially
bad at night when he may wake up 3 or 4 times after these flashbacks. He says
that they are also worse when he is on his own, and he occasionally sleeps with
his TV or bedside light on to reassure him. They have also resulted in an uncontrollable
fear of smoke and fire, such that this week he has panicked twice during fire
exercises, to the extent of being faecally incontinent. He has also broken down
in tears in front of his First Lt and another member of the ship's company on
2 occasions.
I
have discussed his experiences in the Falklands War with him and he places emphasis
on an episode a week after his return from the war when his mother-in-law was
mugged and murdered in Inverkeithing. This has led to his constantly thinking
'where the justice of it all lies'. He also cites the D Day celebrations and VE
celebrations over the last year as provoking strong emotions, including inadequacy
that he is suffering from flashbacks when involved with war for a relatively short
period of time, when WW2 veterans endured hardships lasting for 6 years and were
able to cope…
CPO
Sutherland is short and stocky, and indeed describes himself as a 'roughie toughie'.
He was neatly dressed and spoke with a gruff Scottish accent. His mood appeared
to be low and he was indeed tearful at times, although he was at other times able
to smile and joke about his problems. He did not display delusions or hallucinations.
He seems to have an insight into his problem, and indeed does recognise that there
is a problem. I think that this is a major step for him since he previously believed
that a big bad chief in the RN could not possibly suffer from stress and anxiety.
He
is a strong character and is very keen to get his problems sorted out…"
6.37 The
Claimant was first seen by Surgeon Captain O'Connell on 25 May 1995. In his view
the Claimant had developed a phobic anxiety state 'and would appear to be suffering
from PTSD'. He pointed out that 'up until now there have been no obvious
problems with his job'. The Claimant was reviewed by Dr O'Connell on 26 July
1995 who then recommended that he attend the in-patient PTSD management course
at Haslar.
6.38 In
the course of the PTSD management programme the Claimant made a written 'Personal
Account' of his career in the RN insofar as was relevant to his mental state.
He says "I first felt "different" about things the following
January when Plymouth went back to sea again." It is acknowledged on
behalf of the Claimant that the account did not give a clear history of PTSD symptoms
immediately after the Falklands War, and gives an account of fluctuating symptoms
thereafter.
6.39 On
15 November 1995 Surgeon Captain O'Connell reviewed the Claimant’s case. He noted
an apparent improvement in the Claimant’s condition. He also stated -
"With
hindsight his original presentation in 1988 may well have been the first indication
of his PTSD coming to the fore. However, the symptoms with which he presented
at that time did not meet the criterion for arriving at a diagnosis of PTSD."
6.40 The
Claimant was reviewed again on 29 November 1995, 11 December 1995 and 6 February
1996. While his condition had apparently improved, it is clear that the Claimant
did not wish to remain in the RN, and he was discharged on 17 May 1996.
6.41 Finally
there is a report dated 3 October 1997 from Dr Spicer of the Gulf War Veterans'
Medical Assessment Programme which contains the following passages -
"Pre
Gulf History. He said that he had no real problems prior to Gulf service.
He served in the Falklands aboard HMS Plymouth, which took hits by bombs and he
well recalls the fire-balls aboard the ship. On the way back from the Falklands
he had a disturbed sleep pattern, perhaps this was the beginning of his PTSD having
returned to base. Three days later his wife's mother was murdered and this upset
him quite a lot and he took charge of all the subsequent investigations. But he
is still coping quite well.
Gulf
History. He served aboard HMS Bicester in the Northern Gulf from February
to August 1991 in the mine hunting, sweeping and surveillance patrols role. He
said he was well whilst in the Gulf. He took NAPS tablets 3 times a day for about
6 weeks with no side effects. He had all the usual military vaccinations…and can
recall no side effects from that either. He had no emotional or physical trauma
of any kind. The ship was covered for a lot of the time with debris and oil fall
out from the smoke and the burning oil wells.
Post
Gulf History. There was a major engine room fire one day from the home port
and this really upset him. He coped well with this he said, but he is beginning
to feel inadequate to the task.
In
March 1992 he began to have psychological problems and a feeling of inadequacy,
but still was just about coping with his role as CPO. In early 1995 he began to
go down the hill fast with what was subsequently diagnosed as PTSD relating to
his experiences in the Falklands and he was admitted to the RNH Haslar for 4 weeks…
Since
approximately 1995 he suffered numerous symptoms, much of which are related to
his psychological condition…the remainder of his other symptoms, and perhaps some
of these can be related to his ongoing PTSD which however is very much improved.
He was well until March of this year when things began to get on top of him again
and he was put off sick and has not worked since then…
Examination.
A well looking man who presents himself vociferously. He had a good sense of humour
and appeared neither anxious nor depressed….
Opinion.
A man who has suffered PTSD as a result of his service experience. This seems
to have originated in the Falklands War and was exacerbated by service in the
Gulf…"
6.42 Conclusions
There
are number of important features of the evidence relevant to the issue of detection.
First it is clear from Mr Sutherland’s service record that he functioned well
save during those periods when he suffered matrimonial difficulties. He achieved
regular promotion in a technically highly demanding area of work.
6.43 Secondly
it is clear that his superior officers related his drinking and lapses from his
usual high standard of work to his matrimonial difficulties. In my judgment they
were justified in doing so. I do not consider they were at fault in failing to
question whether there was an underlying psychiatric problem.
6.44 Thirdly
I do not consider that the fact that at times Mr Sutherland was drinking heavily
ought of itself have alerted his superiors to the possibility of a psychiatric
disorder. Such heavy drinking was commonplace. As James Copeland, who knew the
Claimant between January 1986 and May 1987 says
"a
lot of us drank more than was good for us. It was our life style at the time."
6.45 Fourthly
Mr Sutherland’s psychiatric state was investigated in 1988 when he was seen first
by Dr Rollins and then by Dr Price. I am satisfied that Dr Rollins carried out
a thorough investigation. As Dr O’Connell said when he reviewed the Claimants
case in November 1995, "his original presentation in 1988 may well have
been the first indication of his PTSD coming to the fore. However the symptoms
with which he presented at that time did not meet the criteria for arriving at
a diagnosis of PTSD." Dr Rollins was involved in the establishment of
the PTSD treatment program at RNH Haslar, and must therefore have been very conscious
of the problem of PTSD and of other psychiatric disorders caused by exposure to
trauma in combat. Whilst his investigation was arguably a missed opportunity to
diagnose the phobic anxiety state, I do not consider that the evidence demonstrates
that he was negligent in failing to make such a diagnosis at that time.
6.46 Fifthly
it is noteworthy that according to the report from Dr Spicer of the Gulf War Veterans
Medical Assessment Program it was not until early 1995 that the Claimant "…began
to go downhill fast with what was subsequently diagnosed as PTSD relating to his
experiences in the Falklands."
6.47 I
do not therefore consider that the MoD were at fault in failing to detect that
the Claimant was suffering from a psychiatric disorder, be it a phobic anxiety
state or PTSD, either in the period between the Falklands War and his service
in the Gulf, or between his service in the Gulf and his breakdown in May 1995.
7. ANTHONY
MCNALLY
7.1 Anthony
McNally was born on 11 July 1962. On 14 August 1978 he enlisted
in the Royal Artillery aged 16. Following his basic training he joined T battery,
one of three fighting batteries in 12th Air Defence Regiment. He was
deployed in Operation Corporate as one of the crew of a mobile launcher for Rapier
anti-missiles, and saw action at San Carlos and at Bluff Cove. He was discharged
from the army on the 10 July 1983, but re-enlisted in T battery on 9 April 1986,
serving until his discharge on 15 December 1988.
7.2 Mr
McNally’s claim is advanced upon the basis that as a result of the traumatic experiences
to which he was exposed in the Falklands War he developed PTSD.
7.3 In
early April 1982 T battery was directed to join 3 Commando Brigade as its Air
Defence Battery. The battery travelled to the Falklands on LSL Geraint, and on
21 May was dropped by helicopter at pre-planned locations above San
Carlos water in positions that had been secured by the marines and paratroopers.
Mr McNally distinguished himself at San Carlos, shooting down two Argentine aircraft
which were attacking British ships in San Carlos water. On 7 June the troop with
which he served was ordered to move to Fitzroy Bay. It was transported to Bluff
Cove aboard the Sir Galahad with units of the Welsh Guards. As Air Defence the
troop was the first to disembark from the Sir Galahad by helicopter, and once
ashore set up its Rapier missile launchers on a hilltop overlooking Bluff Cove.
Mr McNally says that the command transmitter on the missile system was not functioning,
and that the Argentine attack came before the necessary spare part could be obtained.
His evidence is confirmed by Robert Pearson, the Sergeant in command of the unit.
Mr McNally was nevertheless in the tracker seat, and tracked one of the first
wave of enemy aircraft. He pressed his fire button but the missile failed to fire.
He says in his witness statement that he had to sit and watch the aircraft that
he had been tracking attack and hit the Sir Galahad. He witnessed the horrific
consequences of the attack, saw the casualties being bought ashore, and recalls
members of 2 Para, who were helping the survivors, shouting at his troop which
they blamed for failing to shoot down the enemy aircraft.
7.4 Shortly
after the Sir Galahad was hit the necessary spare part arrived; and the missile
system was operational when the second wave of Argentinean aircraft attacked.
One of Mr McNally’s colleagues was then in the tracker seat and succeeded in shooting
down one of the aircraft. The Claimant and Sergeant Pearson also described their
position being over-flown by a single low flying Argentinean aircraft some time
after the attack on the Sir Galahad. Mr McNally thought that it would attack them
and that he would be killed.
7.5 In
1994, and following his arrest in relation to a serious criminal offence, the
Claimant was referred to a psychiatrist who diagnosed depression and PTSD. The
expert instructed by the Claimant, Dr Freeman, considers that he has suffered
from PTSD since the Falklands War, but says that it was not severe until the deterioration
in his condition in 1994. Dr O’Brien, instructed on behalf of the MoD, accepts
in his third report dated March 2002 that it is probable that the Claimant was
suffering from PTSD in 1994 but that he was also then suffering from a major depressive
episode attributable principally to his arrest. It follows that the issues to
be determined are –
- Whether
the Claimant was suffering from PTSD/PTD during his service in the army, and
- If
so whether it could and should have been detected during the period between his
return from the Falklands War and his discharge in July 1983 and/or during his
further period of service between April 1986 and 5 December 1988.
7.6 The
Medical Records
The
Claimant’s army medical records do not contain any entries suggestive of any psychological
or alcohol related problems. In particular there is no indication of any such
problems in the record of either of his discharge medicals.
7.7 As
to his civilian medical records, there are no significant entries until January
1994. On 19 January 1994 he saw his GP following his arrest for a serious
criminal offence. The GP noted that he was anxious and agitated. On 7 April 1994
the GP noted -
"Counselling
with friend… both been in Falklands War. Terrible experiences? Post Traumatic
Stress Syndrome…"
7.8 On
17 May 1994 he was seen by a consultant psychiatrist, Dr Page, following an incident
in which he had threatened his wife with a machete when suffering night terrors.
Dr Page made a diagnosis of depression and PTSD. He summarised his conclusions
in a report dated 14 February 1995 in the following terms -
"Mr
McNally does however suffer from both a depressive illness and post traumatic
stress disorder. The depressive illness appears to have been of more recent onset,
but he has had symptoms of post traumatic stress disorder for many years. His
symptoms of depression have included feeling low in mood, lack of energy, irritability
and suicidal thoughts. His headaches are also probably related to his depression.
His symptoms of post traumatic stress disorder have included sleep disturbance,
nightmares, flashbacks to his time in the army, feelings of guilt about surviving
the Falklands War and forgetfulness.
His
symptoms of poor concentration and loss of interest in things he previously enjoyed
and anxiety symptoms occur in both depression and post traumatic stress disorder.
"
He
went on to say that in his view the symptoms of post traumatic stress disorder
had developed while the Claimant was in the army, whereas he had developed symptoms
of depression after leaving the army.
7.9 The
Service Records
In
May 1980 the Claimant went absent without leave when serving in Germany; but his
annual report dated 29 June 1981 recorded -
"Started
the year under something of a cloud… developing into a keen young soldier who
is becoming an increasingly valuable asset…"
The
post Falklands annual report on 19 August 1982 recorded -
"…best
year since joining the battery."
On
13 June 1983 the annual report noted -
"He
decided to leave…having made his decision…tends to forget he is still a soldier
subject to orders…"
7.10 The
first annual report after his re-enlistment in April 1986 was dated 14 February
1987. It recorded -
-"…settled
in quickly and well…mature and confident attitude…good potential…"
7.11 He
was discharged for compassionate reasons in December 1988; but on 6 July 1988
his battery commander noted "…once he had decided to sign off all drive
and commitment stopped…"
7.12 The
Witness Statements
The
Claimant gives a lengthy account of his relevant history in his two witness statements.
There are a number of important features. T battery returned to Ascension Island
after the Falklands War on MV Norland with the Scots Guards. The Claimant says
that "…everybody was drinking heavily on the journey back including our
superiors. Numerous fights broke out aboard the ship." Once back in the
UK he was given disembarkation leave, and says that he continued to drink heavily
to suppress his nightmares, and also began to experience flashbacks and night
terrors. He says he was aggressive to his family and to his girlfriend who terminated
their relationship. On his return to his unit he continued to drink heavily and
to experience night terrors. He became disillusioned with army life but also says
that he tried to work hard to take his mind off the Falklands. He says that he
became particularly close to a colleague Edward Denmark who had also been in the
Falklands, that they drank heavily together and got involved in fights, earning
themselves a reputation as troublemakers.
7.13 Shortly
before his discharge in July 1983 the Claimant placed an advert in the Soldier
of Fortune magazine advertising his services as a mercenary –
"British
ex-Falklands vet seeks soldiering employment. Only genuine offers."
He
says that a lot of marines and paras were placing similar adverts.
7.14 Immediately
after his discharge he joined the Territorial Army. He obtained a variety of employments
but continued to suffer flashbacks and night terrors and to drink heavily. He
says that between 1983 and his re-enlistment in 1986 he would regularly dig a
trench in the back of the garden, put on his army combat gear and sleep in the
trench.
7.15 His
friend Edward Denmark re-enlisted in 1986 and the Claimant decided to follow suit.
Between June 1986 and November 1988 he spent most of his time in Germany. He continued
to drink heavily particularly in company with Edward Denmark. He says that they
"…were out of control.", "yet amazingly I was never pulled up
and seriously disciplined for my on-going behavioural problems." He agrees
with the content of his annual reports to the effect that he was working well
without supervision, that he was mature and confident and was a useful and responsible
soldier; and says that he was working hard to try to take his mind off the Falklands.
In 1987 he volunteered to go on a four month tour of duty to Northern Ireland
with the 74 Battery 32 Heavy Regiment Royal Artillery. He says that he volunteered
because in his mind "serving in Northern Ireland was real soldiering."
When in Northern Ireland he spent most of his time on guard duties at the
Maze Prison and therefore volunteered for two weeks on patrol with the Light Infantry
and two weeks work with the Royal Navy monitoring terrorists smuggling arms into
the province. He says that had his mother not fallen ill then he would have tried
to carry on longer in the army "as it was my way of coping."
7.16 The
offence for which he was arrested in January 1994, the possession of a gun with
intent to endanger life, was committed when he was drunk. The friend with whom
he was drinking went with a shot gun to the house of a nearby drug dealer. The
drug dealer was not there; but the friend fired the gun through one of the windows.
The police were called and arrested both men. The matter eventually became before
the Crown Court a year later when the Claimant was put on probation. But his arrest
meant that he immediately lost his job working for a security company; and he
says that "The pressure of the approaching Crown Court trial became unbearable.
I was spending nearly every night sleeping on nearby beaches. Sometimes I would
walk into the sea with the intention of drowning myself."
7.17 Mr
McNally has written a book about his experiences called "Cloudpuncher".
The book has been read by both Dr Freeman and by Dr O’Brien.
7.18 Mr
McNally’s evidence is supported by statements, in particular from his father and
from Edward Denmark. His father says in a short and moving statement -
"On
his return from the Falklands War, he had undergone a total character change.
From being a normal happy go lucky lad he turned into a drunken, loud mouth, violent
thug who on a number of occasions smashed up my home and threatened his family
and friends with violence.
In
my opinion the person who went to the Falklands and the person who returned are
two different people. I feel I lost my boy in the war only he didn’t die."
It
must have been difficult and painful for a father to write in such terms about
his son. Edward Denmark essentially corroborates the Claimant’s evidence as to
their drunken and aggressive behaviour both in the period after their return from
the Falklands and in Germany following their re-enlistment.
7.19 The
Defendant submitted witness statements from Colonel Smith who commanded T Battery
from January 1980 to February 1983. He says that soldiers frequently approached
their detachment commanders, troop warrant officers or group commanders seeking
help with a variety of problems, and that "I spoke with or heard about
soldiers under my command on most days; developing traits such as heavy drinking,
acute depression and particularly fighting would have been noticeable to all very
very quickly."
7.20 The
Expert Evidence
Dr
Freeman considers that the Claimant gives a clear account of acute stress disorder
symptoms in the Falklands merging into posttraumatic stress disorder symptoms.
But he says that "it is clear that Mr McNally did not have severe PTSD
from 1982 onwards", and adds that in the absence of any recorded mental
state examinations in the period 1982 to 1990 -
"…it
is very hard retrospectively to make a diagnosis. Whether Mr McNally continually
met the diagnostic criteria of PTSD, whether this fluctuated or whether he had
sub clinical syndrome is difficult to say. Nevertheless he had clear psychiatric
symptoms directly related to his Falklands experience and not related to anything
else, and there is evidence that the behavioural changes such as increasing drinking
getting into fights, were stable and consistent and are supported by witness statements.
There
was clearly a worsening of symptoms around 1994. Dr O’Brien attributes it to a
depressive illness related to interpersonal events and social stresses. There
clearly were some social stresses, his mother had developed Alzheimer’s disease
and was deteriorating, and his father had heart attacks and a CVA, his marriage
was not working, his army career had not really worked out and his employment
prospects were poor.
I
agree that these further setbacks and losses caused a worsening of symptoms and
the development of a Major Depressive Disorder on top of his Post Traumatic Stress
Disorder."
7.21 It
is noteworthy that Dr Freeman did not make reference to his arrest on a very serious
criminal charge in January 1994, which must have been a major if not the principal
stressor at that point; although it could be argued that it was itself a consequence
of his PTSD and in particular the heavy drinking associated with it.
7.22 Dr
Bisson, who has also reported on the instructions of the Claimant’s advisors,
considers that -
"…symptoms
(of PTSD and associated alcohol abuse dependence) were present on his return from
the war and had fluctuated in intensity over the years. He has remained a heavy
drinker over most of the last 14 years and would have continued to fulfil the
DSM IV criteria for a diagnosis of post traumatic stress disorder for most, if
not all of the time since his return. The symptoms were at their worst in 1994
when I believe he also developed a major depressive disorder in addition."
7.23 Dr
O’Brien has produced four reports. In his first report dated 18 December 1997
he concluded that Mr McNally had been exposed to a potentially very traumatic
situation, but that he did not describe the mental state required by DSM IV for
the development of PTSD. In particular he told Dr O’Brien that he found the attack
on the Sir Galahad "frightening, not traumatic." Dr O’Brien was
satisfied that the Claimant had suffered from night terrors for an indeterminate
but prolonged period and that from January 1994 he had suffered from a depressive
illness. It was then his view that the depression was a consequence of a number
of problems in his life, not of the Falklands experience.
7.24 He
reported again in April 2001, having re-interviewed the Claimant. At that stage
he said that he found it difficult from the Claimant’s description of his experiences
to assess whether or not he fulfilled the stressor criterion for PTSD. The difficulty
arose in part from the assertion by the Claimant that he felt excited by and enjoyed
the events in issue at the time. He was prepared to accept that taking account
of all the evidence, "…he probably did meet the stress criterion."
But he went on to say that it was difficult to be certain about whether or
when Mr McNally developed PTSD symptomatology.
7.25 In
his second report Dr O’Brien also referred to another major difficulty presented
by this case, namely the absence of avoidance symptomatology over the years. The
diagnostic criteria for PTSD under DSM IV (see Part A Section 4.5 ) include at
C "persistent avoidance of stimuli associated with the trauma and numbing
of general responsiveness." Criterion C then goes on to set out seven
ways in which such avoidance and numbing may manifest itself, three or more of
which must be present to establish the diagnosis. Dr O’Brien points out that far
from exhibiting symptoms of avoidance, the Claimant had taken steps which would
be likely to have the opposite effect, namely joining the TA after his first discharge,
re-enlisting, volunteering for service in Northern Ireland, and when in Northern
Ireland volunteering for more active duties than guard keeping at the Maze Prison.
7.26 But
in his third report dated 19 March 2002 Dr O’Brien was prepared to agree that
it was probable that the Claimant was suffering from post traumatic stress when
referred for a psychiatric opinion disorder in 1994, and also modified his view
as to the earlier period saying –
"It
is not entirely clear whether Mr McNally had formal PTSD for some or all of the
time between 1982 and 1994"
7.27 Conclusions
Dr
O’Brien comes close to accepting that the Claimant was suffering PTSD for some
or all of the period between 1982 and 1994. In my judgment the lay evidence serves
to demonstrate that he probably was. But I accept Dr Freeman’s evidence that the
condition was not severe before 1994, and that it fluctuated.
7.28 The
question is therefore whether there were symptoms of PTSD that ought to have been
detected either between his return from the Falklands and his discharge in July
1983 or during his further period of service between April 1986 and December 1988.
The Claimant seeks to rely upon his heavy drinking, the changes in him, in a decline
in performance prior to each discharge, and in particular upon the advertisement
that he placed in the magazine Soldiers of Fortune. As to the latter he gave evidence
that many such advertisements were placed by former serving soldiers, in particular
by marines and paratroopers. It was a breach of discipline for him to have done
so whilst still a serving soldier; but I do not consider that it ought to have
alerted his superiors to the possibility that he was suffering from a psychiatric
disorder.
7.29 As
to his decline in performance prior to each discharge, that was readily explicable
by the fact that he had decided on each occasion not to pursue his career in the
army. Again in my judgment it was not such as to give rise to a suspicion of psychiatric
disorder.
7.30 As
to the more general argument based upon the evidence of the Claimant’s heavy drinking
and poor behaviour, I am satisfied that he was drinking heavily both after his
return from the Falklands and during his later period of service in Germany. I
also accept that when in drink he was aggressive and on occasions became involved
in fights. But his behaviour was not such as to provoke disciplinary action. Secondly
it is important to note that not only was he receiving good reports from his superiors
in the relevant annual reports, but says himself that he was working hard, albeit
in an attempt to suppress memories of the Falklands. It is likely that his superiors
were aware that he was drinking heavily; but as I have said repeatedly the evidence
shows that heavy drinking was commonplace, particularly in the BAOR, and would
not of itself have led his superiors to suspect a psychiatric disorder. He also
took a series of steps that to his superior officers would have been wholly inconsistent
with a man suffering from PTSD, namely the steps identified by Dr O’Brien as demonstrating
that he was not showing symptoms of avoidance.
7.31 It
is also noteworthy in this context that in his first examination by Dr O’Brien
in 1997 he not only said that he had "actually enjoyed" his time
in the Falklands but added "If somebody had asked me I would have said
I was alright." Those were revealing answers; and I am satisfied that
had the question of a psychiatric disorder been raised with him, his answer would
have been short and to the point.
7.32 In
those circumstances I am not persuaded that his superior officers ought to have
suspected that he was suffering from a psychiatric disorder attributable to his
service in the Falklands during either of the relevant periods.
7.33 Culture
As
to the culture within the Air Defence Regiment, I have no doubt that as Mr McNally
puts it –
"As
with all other regiments in the British army, the Royal Artillery had a macho
culture. We were expected to be very tough and physically fit. It was a "dog
eat dog" atmosphere. You simply could not show any signs of weakness. People
who came last in physical training exercises were constantly ridiculed."
7.34 I
also accept that the system for seeing the MO, in common with other regiments
about which I have heard evidence, made it particularly difficult for those wishing
to raise a psychological problem. But the Claimant’s assertion that he would not
have been prepared to raise such questions with the padre loses its force when
set against his description in his book of how he avoided a further tour to Northern
Ireland in 1988, having decided to sign off because his mother was ill with Alzheimer’s
disease. He says "he hatched a plot to be placed on rear party"
–
"I
asked for a troop commanders interview and ended up in the BSM’s office. My story
was my father, who travelled regularly to Dublin, was worried about certain people
finding out his son was a British soldier and asked me not to go again. The BSM,
Micky Finn, just laughed and told me how his parents were Irish and it was just
one of those things. I was going to Ireland, end of chat. March out.
Plan
B. I asked for an interview with the padre and told him the same story only I
did the true part about my mother’s illness. The padre, having the rank of major,
went to see our BC on my behalf. End result–my name on rear. And they say you
can’t beat the system. "
8.
JOHN FLYNN
8.1 John
Flynn was born on 13 January 1960. He joined the Queens Regiment on
13 September 1977 and served until 25 November 1983. In the course of his service
he underwent two tours of duty in Northern Ireland, from 19 June 1978 until 8
October 1978 and from 26 November 1982 until his discharge. In 1994, over ten
years after leaving the army, he was referred to a psychiatrist by his GP and
diagnosed as suffering from PTSD.
8.2 Mr.
Flynn’s case is advanced on the basis that his PTSD was caused by exposure to
traumatic incidents during his service in Northern Ireland. In his pleaded case
and in his substantive witness statement he relies on a number of such incidents;
but as it is accepted by the defence that he has suffered from PTSD attributable,
at least in part, to his service in Northern Ireland, it is unnecessary to examine
the index events in any detail.
8.3
The issues to be determined in this trial are therefore whether he developed PTSD
during his service in the army and if so when; and if he developed PTSD during
his service, whether it could and should have detected.
8.4 Issue
1
The
Expert Evidence
The
Claimant relies on a report from Dr Deahl dated 5 March 2001. It is
a short report; and although Dr Deahl considered Mr. Flynn’s military and civilian
medical records, he did not have his service records. As is conceded by counsel
for the Claimant, his evidence as to the date of onset of PTSD is unclear. At
its second page he records that Mr. Flynn resigned from military service on 23
November 1983 and in the next paragraph says -
"Since
that time (by which he must mean 23 November 1983) Mr. Flynn has suffered a profound
change in personality, hitherto cheerful and positive he became lacking in confidence,
socially avoidant and lacking in self esteem. He suffered at least three serious
depressive episodes and has had fluctuating symptoms of PTSD including nightmares,
flashbacks, intrusive memories all made worse by reminders of his military service,
ever since."
In
his "Opinions and Conclusions" he says -
"Mr. Flynn
suffers an enduring change of personality and post traumatic stress disorder of
moderate severity although the symptoms of this disorder have fluctuated considerably
in intensity since 1993. He has also suffered a relapsing depressive illness and
has misused alcohol since 1983 although these are currently in remission."
He
goes on to say that he was in "in general agreement" with the
findings of Dr Bisson in his report dated 10 March 1995. That does
not take matters much further as Dr Bisson concluded -
"During
his Northern Ireland tours Mr. Flynn was exposed to traumatic events well outside
the range of usual human experience. After his first tour he described symptoms
of post traumatic stress disorder, depression and alcohol dependence, which may
have abated somewhat but certainly sound to have still been present to a degree
when he embarked on his second tour. His first tour can be seen as having "sensitized"
him to the effects of a second tour which sounds to have been more traumatic than
the first. Ever since the second tour he has fulfilled the DSM IIIR criteria for
a diagnosis of post traumatic stress disorder… "
8.5 The
MoD rely upon a report from Professor Fahy dated 4 July 2001. Professor Fahy interviewed
the Claimant and his brother on 12 May 2001. It was a lengthy interview lasting
some three hours. Professor Fahy had available to him a considerable volume of
material including the Claimant’s service records, medical records both army and
civilian, records relating to his post service employments, the relevant War Pension
Agency documents, and records from the organization ‘Combat Stress’. His report
contains a close analysis of the available material. His conclusions, which were
arrived at with evident care, are as follows –
"In
conclusion Mr. Flynn’s symptoms and psychiatric difficulties have fluctuated from
1978. I have no evidence to suggest that his symptoms were clinically significant
prior to his last year in the Army. The evidence that his symptoms were troublesome
during his final year is largely based on his own account and I view this information
with some reservations. Taken at face value, his symptoms during the last few
months in the army, which included irritability, anxiety, arousal and a range
of other mood symptoms, were of clinical significance. …
The
diagnostic formulation in Mr. Flynn’s case depends on three critical issues:
Personality
structure including his ability to cope with normal responsibilities and stresses
The
validity of Mr. Flynn’s account of his experiences in Northern Ireland
The
role of relationship problems in his clinical symptoms
In
my view, he is a vulnerable personality, and has had difficulties coping with
personal responsibilities, relationships and ordinary as well as exceptional stressors.
He is a rather paranoid man, and tends to project his anger (and seek explanations
for his personal limitations) on to external foci. It appears to me that he is
also a worrier, with a tendency to ruminate. I have no difficulty accepting that
the type of experiences described by Mr Flynn would have been a considerable stress
for an individual with such a personality type. It is also clear that he found
other aspects of Army life stressful, including coming to terms with his role
as a soldier who occupied a difficult position between hostile terrorists or civilians
and his military and political bosses. It seems likely that some of Mr Flynn’s
symptoms, including his exaggerated startle response and his flashbacks and nightmares
were specifically related to his experiences in Northern Ireland. His other symptoms
are less specific, and may relate to a general problem with coping and mood regulation
as much as any traumatic experiences in Northern Ireland. Finally, his deterioration
in 1993 would appear to be related to the break-up of a relationship. In terms
of diagnosis, Mr Flynn’s clinical history is compatible with the diagnosis of
PTSD covering his last few months in the Army and for the period from December
1993 until mid-1995. In the absence of a traumatic incident, Mr Flynn’s diagnosis
would be compatible with a mixed picture of depression and anxiety. From mid-1995
onwards it is difficult to disentangle the effect of Mr Flynn’s personality from
his mood symptoms. The diagnostic criteria for PTSD are not difficult to satisfy,
and, despite the marked reduction in nightmares and flashbacks, and the evidence
from the General Practice notes of fluctuations in Mr Flynn’s condition, he would
continue to satisfy the diagnostic criteria, albeit at a milder level of severity.
However, his residual symptoms are strongly influenced by his personality type,
including his poor general coping abilities, impulsiveness and paranoid traits."
8.6 Professor
Fahy also saw Dr Bisson’s report. He points out that Dr Bisson did not have access
to any of the Claimants service records and was therefore entirely dependant upon
the history given by the Claimant, which he regards as a weakness in the report
given his own conclusions as to the Claimants reliability as an historian. Professor
Fahy also reviewed Dr Deahl’s report in his supplementary report of 17 December
2001. He considers that Dr Deahl’s report misses the complexity of Mr. Flynn’s
case, underestimates the variation in Mr. Flynn’s symptoms over time, and the
contribution of personality factors to the clinical picture. He points out that
Dr Deahl did not address the question of the Claimant’s reliability as an historian.
8.7 In
my judgment his criticisms are well founded. But in any event his conclusion does
not in essence conflict with the views expressed by Dr Bisson, and insofar as
they can be determined, by Dr Deahl. I therefore consider that the first issue
is to be resolved by reference to the views expressed by Professor Fahy namely
that the Claimant developed symptoms of PTSD of clinical significance during the
last months of his second tour in Northern Ireland.
8.8 Issue
2 - Detection
The
army medical records do not give any indication of psychological problems or of
any significant alcohol abuse. The Claimant’s service record contains material
entries for the second tour of Northern Ireland; but they have to be read in the
context of the earlier record, in particular for the period between the Northern
Ireland tours.
8.9 The
Claimant completed his first tour of Northern Ireland on 8 October 1978. His next
annual report dated 1 November 1978 records that on his return from Belfast he
became "…surly and awkward, and off duty was often getting into trouble.
He did not take advice, and through immature behaviour became his own worst enemy."
He went absent without leave after an altercation with his section commander,
who appears to have been something of a bully. He was sentenced to seven days
detention. A month later he was involved in a fight. On 11 June 1979 he saw the
MO who recorded trouble with his girlfriend and that he had lost his temper with
her and smashed up her flat. On 15 February 1979 he attacked a fellow
soldier whom he had discovered to be having an affair with his girlfriend. He
was confined in the guardroom under close arrest, but subsequently escaped and
when recaptured committed a number of offences relating to his confinement for
which he was sentenced to 28 days detention. On 19 June 1979 he was
sentenced to 112 days detention for the assault and for his escape from custody.
8.10 Following
his release from detention at Colchester there continued to be problems. In March
1980 he was put on a 3 month warning. But by the annual report dated August 1981
his record had improved considerably. In December of that year he underwent the
Potential NCO Cadre which he passed having made "An excellent effort overall".
On 31 March 1982 he was promoted to Lance Corporal. He has served a supporting
statement from Captain Keyes, his platoon commander at the relevant time, who
thought sufficiently well of him to recommend him for promotion against the resistance
of other senior officers in the battalion who did not think that he was either
sufficiently intelligent or enough of a leader to be promoted. Captain Keyes adds
that at times he could be moody and aggressive.
8.11 His
second tour of Northern Ireland began on 26 November 1982. In the spring of 1983
he was drinking in a pub when offered a lift back to barracks by two soldiers
from another unit. He declined. Seconds after they left the pub, their car exploded
one of the soldiers being killed outright. I have no doubt that the incident had
a very considerable impact on the Claimant. Some days later the remains of the
car were brought back to the barracks and left on display. According to the Commanding
Officer, Colonel Panton, that was common practice to reinforce the need for soldiers
to be constantly on the alert. Whatever the merits of such a policy, the presence
of the wrecked vehicle acted as a constant reminder to the Claimant of an incident
in which he could have died had he accepted the offer of a lift.
8.12 Less
than a month later the Claimant again went absent without leave. He was five hours
late in returning to duty after home leave. His evidence, supported by that of
Kenneth Ansell, is that he had decided that he would not go back to Northern Ireland
as he could not cope with the stress. Kenneth Ansell persuaded him to do so but
he was late returning. In consequence he was reduced in rank. The Claimant says
that at the hearing on 20 May 1983, one of his superiors, either the RSM or the
company commander, asked why he did not want to come back, and that he said he
could not face returning to Northern Ireland. He says that the matter was not
pursued. I accept that evidence as inherently probable.
8.13 In
the annual report dated 1 July 1983 his company commander recorded that initially
his work in the province was good but that -
"Unfortunately
after a long hard period of activity LCPL Flynn’s concentration slipped and his
performance as an NCO plummeted. After a series of offences he was reduced to
the rank of Private Soldier. Flynn has plenty of ability and personality and can,
when he wants to, work to his full capacity. This not as often as it should be
as he is idle."
The
Claimant agrees with the content of that annual report, but says that the explanation
for his poor performance was his inability to cope with the stress of serving
in the province.
8.14 He
subsequently took Premature Voluntary Release. A report generated by the application
for release and dated 29 September 1983 recorded that -
"Flynn
was demoted several months ago, and posted to me from B Coy. He has not been a
success; he is clearly switched off, and at his own admission does not enjoy his
soldiering any more – he says he believes this to account for his poor performance
as LCpl. He does not enjoy our tasks over here, finding the majority of them,
like PVCPs, boring. He states he has been offered a job by a security firm, and
that they are holding it for him. I recommend he be allowed to go."
8.15 Shortly
before his discharge and when on home leave, he was involved in an incident outside
a public house in Gillingham. He heard three or four Irishmen singing republican
songs, lost control, and attacked them. He was arrested and appeared before the
Chatham Magistrates Court charged with a number of offences. The incident occurred
on 8 September, and he pleaded guilty and was sentenced on 16 September, receiving
a modest financial penalty. He was represented by a Captain from the Bassingbourne
Barracks who read out a statement in mitigation on his behalf. When he returned
to barracks he was called before the RSM to explain himself. He says that the
RSM’s reaction was to say "well done".
8.16 The
Claimant was duly discharged on 25 November 1983. Nothing of note was recorded
at his discharge medical.
8.17 Conclusions
The
contemporary documents unquestionably demonstrate a marked deterioration in the
Claimant’s performance and conduct in the latter part of his second tour of Northern
Ireland. The question is whether his superior officers ought to have realized
that the deterioration might be attributable to the stress of service in the province
and to have referred him to the MO for an assessment of his psychological condition.
8.18 It
is submitted on behalf of the Claimant that the change in his behaviour ought
to have given rise to a high index of suspicion bearing in mind the relative suddenness
with which it occurred, the fact that it occurred in the course of a tour of Northern
Ireland in which troops could be exposed to considerable stress, and the contrast
with his high level of performance on the NCO cadre at the end of 1981 and as
reported by Captain Keyes in his annual report dated 1 July 1982. It is also submitted
that consideration of his service record at that stage would have revealed a pattern,
in that his performance and behaviour also deteriorated markedly following his
first tour of duty in Northern Ireland. Reliance is also placed upon the Claimant’s
evidence as to the hearing on 20 May 1983 when he says that he explained to his
superiors that he had gone absent without leave because he could not face returning
to Northern Ireland, but that the answer was not followed up.
8.19 The
MoD submit that it was not negligent to fail to detect that he was suffering from
a psychiatric disorder for a number of reasons; first that there is no evidence
to suggest that he made any complaint of psychological problems, secondly that
there was no evidence of serious alcohol abuse, and thirdly that the contemporaneous
records do not give the impression of a traumatized, anxious or depressed individual,
but rather someone who simply no longer enjoyed life as a soldier. The MoD also
draws attention to the fact that the Claimant was not diagnosed as suffering with
PTSD until ten years after leaving the army; and that in that period of ten years
he had recourse to his GP on a number of occasions complaining of a variety of
physical conditions but did not apparently complain of psychiatric symptoms. It
is submitted that if he did not make any such complaints when removed from the
military culture, it is highly improbable that he would have done so even if pressed
by his senior officers or referred to the MO. Finally the MoD draw attention to
the lack of specificity in his accounts of his symptoms during the second tour
of duty in Northern Ireland, whether in his witness statement, to Dr Deahl or
to Professor Fahy, as weakening the argument that his condition could and should
have been detected.
8.20 In
my judgment his superior officers ought to have appreciated that change in the
Claimant might be attributable to the stress of service in the province. In his
supplementary statement Colonel Panton emphasizes "How much knowing one’s
men was the bread and butter of command."
He goes on to say
that
"The
experience of senior ranks (officers and NCOs) and their ability to recognize
stress in not given sufficient credit by the Claimants in their synopsis. Particularly
in Northern Ireland men work in close-knit groups and live on top of each other.
We are all highly interdependent and looked out for each other."
8.21 That
is an acknowledgement that the signs of stress of the type shown by the Claimant,
namely the sudden and marked deterioration in his performance and conduct, should
have been picked up. The signs were there to be seen, but they were missed. Furthermore
the Claimant’s explanation for going absent without leave should have alerted
his superiors to a possible problem. Recognition that the deterioration in his
behaviour could be linked to stress ought to have alerted his superiors to the
possibility of a psychological or psychiatric problem for which he should have
been referred to the MO. Had a competent examination been carried out by the MO
at that stage, the probability is that he would have been referred for a psychiatric
assessment which would have revealed that he was suffering from a psychiatric
disorder.
8.22 Culture
Colonel
Panton makes some general observations as to the culture prevailing within the
army in general and his regiment in particular. He says
"There
is no point in denying some in the army were very much of the "stiff upper
lip" school, and some NCOs might tell a soldier who was not performing well
to pull his socks up. But can one change this easily? I doubt it – these will,
in the individuals I am talking about, be ingrained attitudes to life generally."
8.23 The
Claimant also gives his view of the culture prevailing within the regiment. He
says that psychological problems were not a subject which anybody discussed and
–
"…
I would have faced emotional pressure that I was "letting my mates down"
and affecting the morale of the unit by reporting my psychological problems."
"As
soon as my superiors were aware that I was suffering psychological problems, I
do not believe that they would have been concerned with any treatment for me but
instead they would have viewed me as a hindrance to the rest of the regiment and
they would have then begun to take steps to either pressurise me to leave the
army or else sideline me to administration jobs. This was the culture within the
1st Queens Regiment at that time. If you were not 100% physically fit,
then you were considered useless and a waste of time. The regiment did not want
to know you.
Faced
with this culture and attitudes, I had to" soldier on" and hide my problems
and try to continue with my duties. "
8.24 The
Claimant’s evidence is entirely consistent with that from a large number of other
sources and is in effect confirmed by Colonel Panton. I have no hesitation in
accepting it.
9. ANTHONY
MCLARNON
9.1 Anthony
McLarnon was born on 5 September 1960. He enlisted in the Parachute
Regiment on 28 December 1979 for a three-year term. He says that he
wanted to serve a full 22 years in the army but initially signed on for 3 years
as a trial period to make sure that he enjoyed army life. From January to April
1981 he served in Northern Ireland. On 29 March 1982 he gave the requisite
twelve months notice to leave the army following a row with a junior NCO. As a
result he was transferred from his rifle company to the HQ Company where he worked
as a barman in the Sergeant’s Mess. But in May 1982 he was deployed to the Falklands
with his battalion, 3 Para. Whilst in the Falklands he was moved from
the HQ Company to B company in a support role and was involved in the battle for
Mount Longdon on 11/12 June, in which he fought with conspicuous bravery.
In the aftermath of the battle he was summoned to parade before his commanding
officer, Lieutenant Colonel Pike, who congratulated him on his bravery and on
the sterling work that he had carried out in the battle. Following the Falklands
war Mr McLarnon served out his notice with HQ Company, again working as a barman
in the Sergeant’s Mess. He was duly discharged on 28 March 1983.
9.2 There
can be no doubt that Mr McLarnon was exposed to horrific experiences in the course
of the battle for Mount Longdon. He was under sustained enemy fire, witnessed
fighting at close quarters with bayonets, and the death and serious injury of
many comrades and enemy soldiers. On numerous occasions he withdrew from the front
line under heavy fire to summon medical assistance for the wounded and returned
acting as a guide to stretcher-bearers. At one point his rifle was knocked from
his hands by enemy fire; and he was remarkably fortunate to escape death or serious
injury. The battle for Mount Longdon has been characterised as the bloodiest fought
by British troops since the Korean War.
9.3 The
claim is advanced upon the basis that Mr McLarnon suffered an acute stress reaction
in the Falklands which developed into a chronic PTSD and co-morbid alcohol dependency
disorder, the alcohol related problems being the direct result of attempts to
control the symptoms of PTSD. The MoD’s expert, Dr O’Brien, is not satisfied that
the evidence demonstrates that Mr McLarnon suffered an ASR. He agrees that the
exposure to traumatic events in the Falklands has caused PTSD but considers that
the evidence is unclear as to the point of onset of the symptoms. He also agrees
that the Claimant has suffered from an alcohol dependency disorder. He accepts
that it is possible that the increase in his drinking was an attempt to control
the symptoms of PTSD, but argues that it is also possible that his drinking problem
pre dates the Falklands and gradually increased, and, as a further possibility,
that his drinking problem may be attributable to the breakdown of his marriage
in 1984. He adds that the problem of alcohol dependency may be the product of
a combination of the possibilities that he identifies.
9.4 It
follows that the issues to be resolved are first the date of onset of the symptoms
of PTSD, secondly the date of onset and cause of the alcohol dependency disorder,
and, depending in part upon the answer to the first two issues, whether the PTSD/alcohol
dependency disorder could and should have been detected before the Claimant left
the army on 28 March 1983.
9.5 As
in each of the lead cases there are four sources of relevant evidence, the Claimant’s
service record, his medical records both army and civilian, the witness statements
and the expert reports.
9.6 The
Service Records
Save
of course for his outstanding service in the Falklands, the Claimant’s record
is not impressive. On 12 September 1980 the Claimant received the following report
from his platoon commander Lieutenant Adams –
"McLarnon
does not treat his work seriously, preferring to act the clown and let his own
standards drop. He is a capable man and has occasionally shown that he has the
ability to do very well. McLarnon needs to apply himself more, especially at SAA
and in the field where his results were disappointing. At present he needs constant
supervision and continual motivation to ensure that he does produce competent
work. "
9.7 On
7 April 1981 his commanding officer reported in the following terms –
"Pte
McLarnon is an immature person with little confidence in himself. He has been
unable to concentrate on his job and has felt that criticism by his superiors
has been "bullying". He went absent before and during the NI tour but
returned of his own accord. His punishment seems to have settled him and he has
been working well in the Sergeant’s Mess of late. He now keeps himself fit, well
turned out and it seems his bad start is now passed. He must make a determined
effort to go forward and realise that everyone is inexperienced at the start but
through hard work and confidence comes knowledge."
9.8 On
4 June 1981 he pleaded guilty to the offence of being drunk and disorderly before
the Wigan justices and was fined £20. The offence cannot have been regarded particularly
seriously by his superior officers, as he did not receive any additional military
punishment. He went absent without leave (AWOL) between 17 November 1980 and 12
January 1981 and was sentenced to 40 days detention. He says that he went
AWOL to be with his mother who was suffering from a stroke. He went AWOL again
on 28 September and 13 October 1981 and was sentenced to 14 days detention.
He again says that he did so to be with his mother who had suffered a relapse.
9.9 At
the beginning of November 1982 he again went AWOL and was sentenced to 7 days
detention. On 11 November 1982 he was given a three month warning as to his behaviour
and efficiency by the Commanding Officer as a result of persistent petty breaches
of discipline. He married on 27 November 1982, and two days later received
the following report from Captain Schwartz -
"Pte
McLarnon is still acting the clown and shows little chance of changing this side
of his nature. However he can act responsibly when he applies himself. He earned
considerable praise in the Falklands and was chosen to meet HRH Prince Charles.
If he was to put his mind to it he could do better (illegible) man with a good
sense of humour."
9.10 He
went AWOL yet again in February 1983 and was sentenced to fourteen days detention;
and on 17 February 1983 Major Wood reported on him in the following
terms –
"Pte
McLarnon has not applied himself well during this supervision period. Any standard
of work attained has been only through maximum supervision. He too often takes
the law into his own hands and suffers the consequences. He cannot be relied on
to carry out the simplest of duties and there is no indication that his performance
or attitude will improve. "
9.11 He
was discharged on 29 March 1983, the day after the birth of his first
child. He was graded "Fair" in his discharge certificate of service,
one grade up from the lowest grade of "unsatisfactory".
9.12 The
Medical Records
Dr
O’Brien correctly described the Claimant’s army medical records as sparse. The
only feature of significance are the entries relating to the Claimant’s weight.
His weight at enlistment was recorded as 57.2 kg. On 18 September 1980
his weight was recorded as 65 kg, but when he was next weighed following the Falklands
war on the 18 September 1982 his weight had fallen to 51.2 kg. The
weight recorded in his discharge PULHEEMS was 52 kg, less than his weight at enlistment.
It is noteworthy that a second form was part completed at discharge giving his
weight as precisely that at enlistment, 57.2 kg. Counsel for the Claimant draws
attention to the second form arguing that it suggests that the MO who carried
out the assessment must have been conscious that his weight then gave cause for
concern.
9.13 As
to the civilian medical records there are no GP records for the period between
1983 and 1990 during which it appears that the Claimant did not consult a doctor.
But in the summer of 1990 Mr McLarnon began to lose his sight as a result of his
alcohol abuse, and in August of that year was admitted as an emergency to the
Department of Neurology at the Manchester Royal Infirmary. The notes refer to
a daily alcohol intake of half a bottle of vodka and two bottles of cider. They
record that the Claimant left the army in 1983 and had served in the Falklands.
The diagnosis was of Wernecke’s encephalopathy. The condition improved once the
Claimant’s drinking stopped or reduced. The GP notes, which resumed on 23
August 1990, recorded on 3 December 1990 that the Claimant had
started drinking again in response to his mother’s death.
9.14 In
March 1995 the Claimant became severely jaundiced and on 4 April was again admitted
to the Manchester Royal Infirmary. The clinical notes record –
"long
history of alcoholism. Started drinking age 16 - a bottle of beer/week. 1980 -
joined the army - 10 pints of beer at weekends. Left Army 1983 ® wife left
him for another man ® took to the bottle. 8 pints of beer/day + 1/2 bottle
of vodka/day, 1983-1990. Brief period of abstinence, 1991-1992. Started again
1992 - drinks with friends.
"unemployed
for 5 years ® income support. Building trade prior to that."
9.15 The
jaundice was caused by liver failure, the result of his alcoholism. On 6 April
1995 he was referred for psychiatric assessment and management. The psychiatric
registrar recorded that he had been a heavy drinker for more than 30 years and
-
"…his
excess of alcohol consumption may have started following his return to the UK
from the Falklands after service with the British army. He continues to suffer
from some intrusive imagery and flashbacks of his experiences in the Falklands
war and suggests this is something of a driving force for his continued drinking."
That
is the first reference in the medical records to symptoms of PTSD.
9.16 On
19 April 1995 the physician responsible for his care reported in the
following terms
"On
examination he presented as a man who looked older than his years. He was lying
in bed and looked very jaundiced. He was slightly disinhibited but co-operative
and achieved good rapport. His moods subjectively he described as being "fine".
Objectively he appeared neither depressed nor anxious. His speech was normal in
rate, flow and form although he uses a number of obscenities which may reflect
a mannerism or disinhibition he shows in his behaviour and social interaction.
His speech content concerns his worries about the past and his continued phobic
avoidance of any reminders of the Falklands war… his insight is reasonably good,
he is able to link his current physical problems with his history of alcohol abuse
and his alcohol abuse with possibly his experiences during the Falklands war.
"
9.17 In
1995 Mr McLarnon was referred to Dr Jones, the consultant psychiatrist, by his
solicitor. His consultations with Dr Jones do not bear on the issues that fall
to be determined, save that he told Dr Jones that during the leave period following
the return from the Falklands "he had resorted very heavily to alcohol
for relief. He said the alcohol blocked out the memories of flashbacks. He could
hear men screaming and see them hiding behind dead bodies."
9.18 Finally
there are three other entries in the GP notes that are relevant to the issue of
the onset of alcohol abuse. A letter from Dr McLindon dated 17 August 1995 records
that "in 1983 he left the army and after he and his wife were separated
he began to drink seriously…". In a letter dated 9 October 1995 Dr Sharma
said "He started drinking heavily after he came back from the Falklands
in 1983 (sic) and he has been unemployed since then". Finally the Claimant’s
application for a war pension dated 14 August 1986 says "…when came out
of the army in 1983, started getting depressed and nightmares due to his experiences
in the Falklands war; started drinking heavily up to one bottle of vodka a day…".
9.19 The
Witness Statements
The
Claimant says that on the return voyage from the Falkland Islands to Ascension
Island he began to drink more heavily than he had ever drunk before. The drinking
continued during his disembarkation leave; and he says that by that stage he was
experiencing numerous flashbacks to the traumatic events that he had witnessed.
Following his return to the barracks at Aldershot he says that he continued to
drink heavily on a daily basis –
"Alcohol
seemed to numb my emotional problems and make me forget about the Falklands. I
could only get to sleep if I was drunk, otherwise I would have nightmares. But
after drinking heavily, I would wake up still drunk or at least hung over, causing
me to be late for parades or for work in the mess."
9.20 His
relationship with his wife began to suffer. As to his weight he says that in common
with many of his colleagues he lost a good deal of weight during the Falklands
campaign because of the great distances that they were required to march. He failed
to regain the weight because he was barely eating, subsisting on a diet of alcohol.
9.21 The
heavy drinking continued after his discharge. His marriage soon broke down, his
wife obtaining a Family Protection Order against him on 25th July 1983
and an expedited Protection Order on 21 June 1984 which was converted into a full
order with an exclusion clause on 5 July 1984. He exhibits to his statement the
divorce petition served by his wife on 8 October 1985 alleging drunkenness and
violence by him on a regular basis after he returned from the Falklands.
9.22 In
his supplementary statement Mr McLarnon speaks as to the culture prevailing within
the Parachute Regiment. He says it was not the done thing to report sick with
injury unless you were ill enough to have been prevented from carrying out your
duties and that –
"If
I had tried to approach any of my superior officers after the Falklands war to
try and discuss with them the ways in which the war had affected me, I believe
they would have completely dismissed my concerns. They would have said I was talking
nonsense."
9.23 He
also expresses the view, echoing a number of witnesses who gave evidence in course
of the trial of the generic issues, that had he discussed such matters either
with a superior officer or an MO, it would not have remained confidential. But
he says that in any event "…in the atmosphere of 3 Para it never crossed
my mind to report."
9.24 The
Claimant also relies upon a statement from Derek Allan, a Sergeant in 3 Para,
who was running the Sergeants’ Mess at the material time and therefore supervised
the Claimant. His evidence is of considerable importance as he was able to make
a comparison between the Claimant’s conduct before and after Operation Corporate.
As to the period of service before the campaign he says –
"My initial
impression of Anthony was that he was very enthusiastic and had a 100% commitment
to his job. He never let me down. He was always punctual, arriving at work on
time every day prior to the Falklands war. His appearance would be best described
as scruffy but his lack of care for his personal appearance did not reflect his
commitment to his work. "
9.25 But
he noted a marked and immediate change in the Claimant on his return from the
Falklands.
"Anthony
was back late from leave. I immediately noticed his behaviour and mannerisms were
very different. I am certain about this. He returned to his pre-Falklands duties,
working behind the mess bar. He was erratic in his job and he lacked punctuality.
He was always late for duties and I often had to send a colleague to try and find
Anthony. This happened as soon as we came back from disembarkation leave. I was
always pulling him up for his lateness and erratic behaviour …his sense of humour
had completely disappeared. I did see Anthony drink heavily and get drunk at mess
functions, in front of our superiors, and I would get annoyed because he couldn’t
do his job properly when drinking…Anthony physically had changed in appearance
after the Falklands. He was a lot thinner and he had lost a lot of weight. He
did not put this weight back on throughout the time up until discharge. He looked
bedraggled and untidy. He looked depressed and withdrawn. He was still keen to
help out whenever he could, when he did arrive at work. "
"A
lot of senior NCO’s also noticed a change in Anthony as they used the mess bar.
One of them was John Weeks. I often had discussions with him and he would often
comment on how withdrawn Anthony looked and the problems we had with Anthony’s
timekeeping."
"Even
though I did not actually see Anthony drink much alcohol after the Falklands,
he was clearly drinking alcohol almost every day. The alcohol was aging Anthony
rapidly. He looked tired and haggard. He was always yawning. He was naturally
very fit but was not maintaining his physical fitness. He looked very old for
his age after the Falklands. He often argued and snapped with other staff members.
There was never any physical aggression but he was suffering from mood swings.
He often snapped if we approached him for being late."
"There
were a few occasions when Anthony was reported by me to his superiors, which resulted
in Anthony being placed in a cell for a day or so as punishment. He was often
not formerly charged despite being placed in a cell."
"I
knew that Anthony had been seriously emotionally affected by the Falklands… if
I had been trained to report the change in him I would have done. As it was the
attitude in the regiment made it difficult and I did not. I couldn’t report Anthony’s
problems as that would have damaged his career."
9.26 The
Claimant also served a statement from Roger James who served with him in HQ Company
3 Para, both before and after Operation Corporate. Mr James says -
"…some
time in September 1982. This is when I first saw Anthony again after the Falklands.
I immediately noticed that Anthony had changed. He looked very withdrawn and depressed,
as I had seen him during the battle for Mount Longdon. He had lost all confidence
in himself. He was moody and irritable at times. He was always late for shifts
and his colleagues behind the bar had to cover for him. Anthony started to drink
heavily after his shifts in the mess. He drank alcohol from behind the bar. Anthony
let his appearance go. His uniform was always scruffy and neglected. There were
a few occasions when Derek Allen, Anthony’s superior in the mess, had to send
him away when he arrived for his shift because he had not yet shaven. We would
have to cover up for him while he returned to his room to shave. Anthony lost
weight in the Falklands, but never put it back on. After the Falklands Anthony
looked permanently tired. He was aging very quickly. It was obvious he was not
getting his because his face looked very tired and sullen. "
"Anthony
was often pulled up for petty matters and, instead of being formerly charged,
our superiors just locked him up in a cell. This happened on a few occasions."
"It
was obvious that he was having problems just by looking at him. It was incredible
that none of our superiors properly pulled him up and tried to get to the bottom
of why he had changed so much."
9.27 The
witness statement from the Claimant’s brother confirms the change in his personality
on his return from the Falklands and that that was the point at which he began
to drink heavily.
9.28 The
MoD served witness statements from Captain Bailey who served in the Falklands
in 3 Para and who, in his supplementary statement, commented on Mr McLarnon’s
evidence as to the culture prevailing within the regiment.
"Mr McLarnon
states that it was the culture within the parachute regiment not to show any emotion
as it would be seen as a sign of weakness. He says that for this reason he tried
to hide his feelings. I would agree that there is such a culture in the parachute
regiment. It is an organisation which is male dominated and the mentality of the
regiment is such that it would be difficult to show weakness. For that very reason
the soldiers are trained to overcome their weakness. Everybody would have had
their own way of dealing with how they felt following the battle for Mount Longdon."
9.29 The
MoD also served a statement from John Weeks who at the outbreak of the Falklands
war was the Company Sergeant Major of B Company 3 Para, and who was subsequently
commissioned. He was the person with whom Sergeant Allen discussed the Claimant
after the return from the Falklands campaign. He says in his statement -
"Although
I do not recall Mr McLarnon in the Falklands, I can recall him serving in the
sergeants mess with me. I also recall speaking to Sergeant Allen in relation to
his drinking. I told him that he would have to watch him. I do not however recall
commenting on any change to his personality or his physical appearance."
"Battle
was something that was new to all of us. The mixture of character and personal
pride which took us through. I myself had nightmares for approximately a year
following the conflict but I did not feel I needed to speak to anyone. I felt
this was a personal problem and I decided to sort it out my own way, I think it
was something to do with my pride. If I had felt the need to speak to someone
I would have gone to the padre who was very approachable. That is what the padre
is there for. I would also have been quite happy that any conversation with him
was confidential."
9.30 The
Expert Evidence
The
issue between the experts in this case is relatively narrow. Professor Weisaeth
considers that the evidence shows that the Claimant developed an acute PTSD "…very
soon after the fighting was over", and that his severe problem of alcohol
dependency is secondary to the PTSD. Dr O’Brien accepts that the Claimant suffers
from PTSD and from alcohol dependency but is "unclear" as to
when the symptoms of PTSD first presented, and is not convinced that the alcohol
dependency is related to the PTSD, although he acknowledges that that is a possibility.
9.31 It
is therefore helpful to consider why Dr O’Brien is unable to reach the firm conclusions
arrived at by Professor Weisaeth. Dr O’Brien first reported in May 1998. He said
that "There is no doubt that Mr McLarnon has suffered a severe alcohol
problem. It seems clear he has also suffered severe PTSD symptoms." But
he could find no contemporary evidence suggesting that the onset of either pre-dated
the Claimant’s discharge from the army. As he said -
"The
bottom line is that when Mr McLarnon came back from the Falklands he was serving
out his notice and he continued to behave in the same way as he had done before
he went to the Falklands with no physical or psychological complaints whatsoever.
"
It
is of course correct that there was no record in either the service or medical
records of any such complaints.
9.32 He
reported again in April 2001. His view had not altered –
"The allegation
is that immediately on his return Mr McLarnon suffered severe Post Traumatic Stress
Disorder symptoms and began to drink very heavily. There is no contemporaneous
evidence seen to support either of these claims. His army personal records do
not show any significant change in his behaviour. I have not seen a record of
any charges or adverse reports concerning alcohol consumption. The medical records
do not contain any post Falkland entries which are even suggestive of alcohol
related problems. There is no suggestion of psychological symptomatology in his
medical records and no complaint of any problems on his discharge medical."
9.33 Dr
O’Brien went on to make two further points, first that the subsequent medical
records showed no sign of psychological symptomatology until his referral to a
psychiatrist in 1995, and secondly that as a result of his alcohol problems he
has suffered a Wernicke’s Encephalopathy and has Korsakoff’s psychosis with permanent
cognitive impairment specifically in areas of memory, so that his own recollection
of the relevant events must be treated with considerable caution.
9.34 At
the time of writing his first two reports Dr O’Brien did not have available to
him the evidence served in support of the claim, in particular that of Mr Allen,
Mr James, and of the Claimant’s brother. Nor does he appear at that stage to have
seen the divorce petition filed by the Claimant’s former wife. He reported for
a third time on 19 March 2002 by which time he had seen such evidence. But it
did not cause him to change his view. He dismissed it in the following terms -
"The
allegation is that immediately on his return Mr McLarnon suffered severe post
traumatic stress disorder symptoms and began to drink very heavily. Some of the
witness statements support the latter, although some are less definite. There
is talk of further deterioration in behaviour but not of any report of specific
symptoms. His army personal records do not show any significant change in behaviour
compared with before the Falklands, or record of any charges concerning alcohol
consumption. It is alleged that his misdemeanours were covered up in an attempt
to be supportive but this is somewhat at variance with the observation that he
was put on a warning order."
He
went on to repeat the point that the medical records did not contain any entries
suggestive of alcohol related problems or psychological symptomatology.
9.35 I
should add in this context that it is submitted on behalf of the Defendant that
the entries in the medical records after the diagnosis of PTSD in 1995 conflict
and, it is said, strongly suggest that his drinking did not deteriorate significantly
until after he left the army. I do not find that argument persuasive for two reasons.
First it is undermined by Dr O’Brien’s conclusion that the Claimant’s memory is
permanently impaired. Secondly it conflicts with the evidence from former colleagues
and family.
9.36 I
find no reason to doubt the contents of the witness statements from the Claimant’s
former colleagues and his brother. They are persuasive evidence of a major change
in the Claimant on his return from the Falklands which resulted in a rapid deterioration
in his work performance and in his general behaviour. I am also satisfied that
that is when his consumption of alcohol began to increase dramatically. I do not
therefore consider that Dr O’Brien was justified in disregarding such evidence,
and it follows that I prefer the evidence of Professor Weisaeth.
9.37 Accordingly
the second question is whether that change in the Claimant ought to have been
detected and, if so, whether it should have triggered an investigation which would
have led to a diagnosis of his condition at or before his discharge from the army.
9.38 The
evidence from Mr Allen, corroborated in one important respect by Mr Weeks, demonstrates
that the marked deterioration in the Claimant was apparent to his superiors. Sergeant
Allen was his supervising NCO. It is equally clear from that evidence that Sergeant
Allen did not take any steps to bring his condition to the attention of the MO.
Furthermore he says that there were occasions on which the Claimant was reported
by him to his superiors resulting in the Claimant being placed in a cell for a
day or so of punishment but not being formerly charged. Sergeant Allen says that
if he had been trained to report the change in the Claimant he would have done
so but
"As
it was the attitude in the regiment made it difficult and I did not. I couldn’t
report Anthony’s problems because that would have damaged his career."
9.39 Captain
Bailey criticises the last sentence of the above passage on the basis that the
Claimant had already given notice and therefore had no career to protect. But
in my judgment the evidence demonstrates very clearly the culture prevailing within
the regiment, certainly at the level of NCOs and below. In this context counsel
for the Claimant also refers to a passage in the evidence of Mr James –
"When
Anthony returned to Manchester, he was always late on the Monday. Derek Allen
fortunately gave him a bit of leeway…"
It
is submitted that such evidence is illustrative of the stance taken by sympathetic
junior commanders and NCOs, namely that if they did notice any signs suggestive
of psychological disorder they would cover up "…out of good but mistaken
motives."
9.40 The
failure to take any steps with regard to the serious deterioration in the Claimant’s
behaviour is readily explicable by reference to the attitude to psychiatric disorder
or illness prevailing within the regiment. But I am satisfied that he should have
been referred to the MO. Had that happened then it is probable that a diagnosis
of a psychiatric disorder referable to his experiences in the Falklands would
have been made.
9.41 It
is also submitted on behalf of the Claimant that the MO who carried out the discharge
medical ought to have realised that the Claimant had a problem that should have
been investigated. The argument is based upon the evidence as to the Claimant’s
weight. It is submitted that the fact that the Claimant had failed to regain his
weight prior to the Falklands war should have been a matter of concern, and should
have triggered a series of questions that would have alerted the MO the possibility
of a problem. It is submitted that the point is underlined by the presence of
a second version of the discharge PULHEEMS form in the medical records, the content
of which is explicable only on the basis that the MO realised that his weight
was a cause of concern.
9.42 I
am not persuaded that that was a failure that amounted to a culpable want of care
on the part of the MO, not least because Professor Weisaeth does not identify
weight loss as a matter that ought to have raised a suspicion of psychiatric disorder.
10. MALCOLM
NEW
10.1 Malcolm
New was born on 8 November 1959. He enlisted in the Royal Welch Fusiliers
at the age of 16 on 28 April 1976. He served for almost 18 years, being discharged
in February 1994 having achieved promotion to the rank of Staff Sergeant. During
the course of his service Mr New served five tours of duty in Northern Ireland,
and in the New Years Honours list for 1990 was awarded the BEM in recognition
of his service in the province. In June 1997, almost three and a half years after
his discharge from the army, he was seen by a consultant psychiatrist, Dr Francis,
who made a diagnosis of PTSD.
10.2 Mr
New’s claim is advanced on the basis that in the course of his service in Northern
Ireland he was exposed to extreme and repeated stresses which eventually led to
the development of severe PTSD, co-morbid depression and an alcohol dependence
disorder. His case is supported by expert evidence from Professor Weisaeth who
dates his drinking and psychological problems from 1983/4.
10.3 The
defence case, per Dr Jacobson, is that Mr New suffered an acute stress reaction
when he caught his wife in bed with another man in 1990, that in late 1992/early
1993 he was "… probably suffering from a mild to moderate depressive episode
and a Generalised Anxiety Disorder (GAD) in a setting of harmful alcohol consumption",
that during his fifth tour of Northern Ireland he "…probably had a fluctuating
depressive episode between mild to moderate with anxiety features", and
that he has subsequently "…suffered moderate PTSD, associated with fluctuating
depression anxiety, sometimes severe."
10.4 Accordingly
the issues that fall to be determined within the ambit of this trial are
- whether
the Claimant was suffering from a psychiatric disorder prior to his discharge
from the army and, if so, from what date.
- if
he was suffering from a psychiatric disorder during his army service, whether
it could and/or should have been detected.
10.5 The
Service Records
There
is nothing to indicate a psychiatric disorder in the Claimants service records.
On the contrary it is with two exceptions, a record of consistent and exceptional
achievement. The Claimant was promoted to corporal at a very young age. He told
Dr Alun Jones of the Ty Gwyn Ex-service Treatment Centre that when promoted he
was the youngest corporal in the British army. He was also a very young sergeant.
The records demonstrate that he was held in the highest regard by his superiors.
He was identified at an early stage in his career as someone of considerable potential.
In his annual report for May 1981, which was made during his second tour of Northern
Ireland, his CO said -
"An
extremely good JNCO who is doing an exceptional job in Belfast and was an above
average section commander in the BAOR. He has a tremendous future in the army
and with a little more experience should be considered for accelerated promotions."
10.6 His
platoon commander, Major Plummer, reported in his annual reports for both the
years ending 1 March 1982 and 1 March 1983 that he was one of his best section
commanders. The reports continued in similar vein. That for the year ending 28
February 1988 said -
"Cpl
New has fully justified his selection as Ppl Sgt despite his relatively junior
seniority as Cpl. He is a fit, robust and demanding leader and at his best when
faced with a challenge. During a recent border operation in South Armagh of nearly
three weeks duration and in the most appalling weather conditions, Cpl New commanded
a first class defensive position clearly demonstrating his leadership and strength
of character. I have no doubt that he is ready for promotion now. "
He
was duly promoted to the rank of full sergeant on 31 August 1989.
10.7 Between
June 1989 and June 1992 the Claimant served at the regiment’s recruiting office
at Bangor. He continued to earn glowing reports on his performance. That for the
year ending 31 March 1990 contained the following passage -
"During
this period Sgt New received the award of BEM for his performance as a PlSsgt
NI. I was not the least surprised by this. Sgt New’s all round performance and
attitude were excellent. He has actively, and with measurable success, pursued
recruiting prospects outside office hours in youth clubs and AFC’s. He takes on
executive roles in such organisations where his example shines for the benefit
of the Army. In every way he has approached his recruiting duties in a manner
which borders on OUTSTANDING… I have no qualms whatsoever in recommending Sgt
New for accelerated promotion to SSgt. " (Lieutenant Colonel Watson)
He
received equally impressive reports for the following two years and was promoted
to Staff Sergeant on the 30th June 1992.
10.8 On
11 September 1992 the Claimant volunteered for redundancy. He set out his reasons
in detail, although he now says that they were not a true or accurate account
of why he wanted to leave the army. The reasons that he advanced were that he
needed to join his brother in law in a taxi business half owned by his wife, and
secondly for personal reasons relating both to his marriage and his difficulties
in seeing the children of his former marriage. He now says that he wanted to leave
because he felt he was "… cracking up mentally." His application
for redundancy was refused on 19 February 1993; but he immediately gave twelve
months notice and was duly discharged on 19 February 1994. Before his discharge
he served out his fifth tour of duty in Northern Ireland. It was terminated in
circumstances that I shall consider at a later stage.
10.9 The
two exceptions to the very high standard that he maintained throughout his service
career are first a lapse in his behaviour in 1983/1984, and secondly a falling
off in his performance following the notice given to terminate his service. The
latter would have been readily explicable to his superiors on the basis that he
would have found it difficult to motivate himself as he served out his notice.
As to the first he was convicted of a minor offence in November 1983, and on 8
March 1984 of a drink drive offence committed on 5 January 1984. He provided written
mitigation to his superiors that the strain of having to live apart from his wife
whom he had married in May 1983, had led to his taking "too much alcohol
on the odd occasion." In that context there is evidence before me from
two of the officers with whom he served, Major Irvine and Captain Williams, that
"… it did not take much to get him drunk."
10.10 The
Claimant seeks to explain the excellence of his service record in the following
terms -
"Finally
I would like to comment on my army personal files. It doesn’t say anything about
the problem which I was experiencing. However, it is necessary to appreciate the
way the army culture works. Something happens one way, something completely different
actually gets written down. It’s always been like this. Regimental pride is everything.
If possible, any incident or scandal is covered up."
10.11 I
do not find that a convincing explanation of the almost unbroken sequence of highly
complimentary reports during his eighteen years of service. Save for the minor
blemishes on his record to which I have referred, I have no doubt that he discharged
his duties in an exemplary manner. His rapid and early promotions speak for themselves.
10.12 The
Medical Records
There
are two sets of entries in the Claimant’s medical records that are of significance.
Otherwise there is nothing indicative of any psychiatric or psychological problems.
The first of the significant entries relate to an incident when the Claimant was
serving in Australia in May/June 1982 and became involved in a fight with Argentinean
sailors in which he sustained a fractured skull. The injury is of relevance to
subsequent reports of headaches. Secondly, and over ten years later, he was seen
on 15 December 1992 by a medical officer, a Dr Penelope Mileham, at the Tidworth
medical centre. He was complaining of headaches. She elicited the history of the
skull fracture in Australia. She also recorded a recent weight loss and that the
Claimant felt that his headaches could be stress related. She referred him for
a neurological opinion saying in her letter of referral -
"He feels
that he is under a certain amount of stress as he is a man "without portfolio"
at work at the moment and he feels he has nothing to occupy his mind. He has also
been quite worried about his wife who has had a breast lump."
10.13 The
Claimant was duly seen by a neurologist whom he told that the headaches had started
in May 1992, that his wife was not particularly keen on army life and that he
was hoping to have his vasectomy reversed in the near future. The neurologist
arranged a CT scan; and the vasectomy reversal was fixed for a date in April 1993.
But the Claimant did not undergo either the scan or the vasectomy reversal as
he was posted to Northern Ireland for his fifth tour.
10.14 The
Witness Statements
The
Claimant describes a number of specific incidents during the course of his service
in Northern Ireland, some of which I shall consider in detail at a later stage.
But he emphasises in his statement the constant stress that he and his fellow
soldiers were under in Northern Ireland. He says that they were at risk of death
or serious injury for many hours every day and that -
"The
physical and psychological stress was unbelievable"
At
a later stage he says in relation to his first tour of duty
"Only when
I got to Northern Ireland did I realise how incredibly stressful it really was.
In "Tin City" (the mock-up Northern Irish village in Germany) we were
never taught how terrified we would really be when we were patrolling the Bogside.
We got through it because of training and comradeship, but we were all scared
by it"
I
have no doubt that in common with many of those serving Northern Ireland, the
Claimant found the experience to be extremely stressful.
10.15 It
is not necessary for present purposes to summarise the contents of the witness
statements served by both parties. A succinct and accurate summary of those predating
October 2001 is to be found in the supplementary report from Dr Jacobson dated
22 October 2001.
10.16 The
Expert Evidence
In
making their retrospective diagnoses the experts are inevitably heavily dependant
on the history given by the Claimant. In this case there are a number of inconsistencies
in the accounts given by the Claimant on different occasions. Professor Weisaeth
argues that -
"…
the unrecognised post-traumatic stress condition that New probably suffered from
since 1983-4 may go a long way towards explaining some of the discrepancy in his
accounts of several events that occurred during service years in Northern Ireland."
10.17 But
the difficulty in that approach is that he assumes that which is to be established.
I accept that as counsel for the MoD submits, it is necessary to test the reliability
of the Claimant’s evidence against the contemporary documents and secondly by
an analysis of the inconsistencies in the accounts that he has given of specific
incidents. It is not necessary to embark upon an exhaustive analysis of each of
the disputed issues of fact, but I shall consider two incidents in some detail.
10.18 I
propose first to consider the incident involving the death of a ten year old girl
in Twinbrook. There was no reference to the incident in the Claimant’s first witness
statement; but he gave an account to Dr Jacobson in the course of his three-hour
interview on 9 July 2001. According to Dr Jacobson he accidentally shot the girl
in the course of the operation to rescue the soldiers trapped inside a burning
school. He said that he had nightmares after the incident but neither asked for
nor received help. He told Dr Jacobson that "…he had nightmares, fear,
flashbacks of burnt colleagues, but carried on working. I was a flyer, shooting
up the ranks". He gave a further account of the incident in his supplementary
statement dated 28 September 2002 in which he said that the situation was desperate,
that young children had started to appear in the front line of the rioting crowd,
and that he gave an order that when a signal to fire was next given "…
we would fire plastic baton rounds on to the road in front of the children, rather
than directly at the crowd." He says that it was an illegal order because
of the ricochet effect from bouncing plastic baton rounds. He says that he fired
as soon as he gave the order and saw a young girl fall to the ground. She subsequently
died. He says that he was traumatised by what had happened to her and has found
it very hard to deal with. He says that he didn’t disclose it to his solicitor
when he gave his first statement because the memory of the incident made him physically
sick. He also says that he has since gone back to Belfast and visited the girl’s
house and the shrine in her memory "… to try to lay some ghosts to rest."
He was in fact mistaken in his recollection as to the girl’s name and as to
her age, but suggests that that was because he could not deal with his involvement
in her death. The Defendant has submitted evidence from others present at the
scene which puts in issue the role played by the Claimant. But for present purposes
it is sufficient to consider the various accounts given by the Claimant. I find
his explanation for failing to mention the incident in his first statement plausible.
But there is a significant difference in the account he gave to Dr Jacobson and
the account given in his second statement. It inevitably leads me to the conclusion
that his evidence is to be treated with considerable caution.
10.19 The
second incident that I propose to consider also occurred during the Claimant’s
second tour in Northern Ireland. In his witness statement the Claimant describes
an incident in which a bomb went off in Shaw Road, Belfast killing a young RUC
officer and seriously injuring two others. In November 2000 the Claimant told
Dr DA Jones that he gave mouth-to-mouth resuscitation to the fatally injured man.
His case as set out in the Amended Particulars of Claim dated February 2001 was
that he attempted to resuscitate police officers who had been badly mutilated.
The Amended Defence pleaded that the Claimant was not involved in the attempted
resuscitation of police officers and that he did not leave the vehicle which attended
the scene. In his first witness statement the Claimant says that he accompanied
the injured men to the Royal Victoria hospital in the ambulance, but did not assert
in positive terms that he was involved in attempts to resuscitate any of them.
As to the man who died he says "his face was so badly burnt that it was
virtually impossible to work out where his mouth was to perform resuscitation."
In his supplementary statement he says that he travelled in the ambulance
and "I spent the rest of the journey, as I have described, attempting
to resuscitate one of the casualties." In fact he had not given any such
description his first statement. The MoD has served a statement from Captain Williams
who says that he was present when the bombing occurred. He says that he, together
with Lance Corporal Owen and Fusilier Ellis, attempted resuscitation before the
arrival of the ambulance. He recalls that the Claimant commanded the military
ambulance to the scene and then to the hospital, but says that the military medics
took over the resuscitation of the casualties on their arrival. He cannot give
evidence as to what happened en route to the hospital. But the discrepancies in
the accounts given by the Claimant reinforce the need for caution when considering
his evidence.
10.20 It
is then necessary to consider the evidence upon which Professor Weisaeth bases
his conclusion that the Claimant has suffered from a "post-traumatic stress
condition" since 1983-1984. He bases it first on the chronic headaches
that the Claimant says first developed in 1983, and which Professor Weisaeth says
"… may well have been part of a post-traumatic stress syndrome";
secondly upon his problems with alcohol with specific reference to his convictions
in late 1983 and 1984, and thirdly the nightmares that he started having in 1984.
The Claimant’s evidence on these points is relevant both to question of diagnosis
and to the question of detection. He told Professor Weisaeth that he was told
that the headaches were attributable to the fractured skull. As to the conviction
for drunken driving, he says that it happened after a period of boredom.
"People
kept on telling me that I would not get my promotion as I was too young. I felt
like I was treading water. I am not usually a drinker, but I came off Christmas
leave in early 1984 and went out in Tenby. I got drunk. A taxi driver wouldn’t
take me back home. When he left his vehicle I took his car and drove back home."
As
to the nightmares he says that -
"They
weren’t as vivid as the flash-backs I started suffering later. At first I assumed
they would disappear in time. They didn’t, and it became something I just had
to deal with."
10.21 The
Claimant’s evidence is that it was in or around 1990 that he experienced his first
real flashbacks. He says -
"Because
of regimental pride, I didn’t specifically talk to my superiors about my drinking
and flashbacks. However they were well aware of it."
No
explanation as to how or why they were aware either of his flashbacks or his drinking
is advanced.
10.22 Professor
Weisaeth then points to the incident involving a member of Sinn Fein that occurred
in the spring of 1989 during his fourth tour. Professor Weisaeth regards the loss
of control as indicative of a psychiatric problem which, he says, should have
triggered a psychiatric investigation. He does not in terms say that it was indicative
of a post traumatic stress disorder. There is a stark conflict of evidence with
regard to this episode and the Claimant’s subsequent transfer to work as a recruitment
officer in Bangor. Professor Weisaeth expressly rejects the account given by the
Defendant’s witnesses. It is therefore necessary to examine the evidence as to
this incident in some detail.
10.23 At
the relevant time the Claimant and his battalion were based at Ballykinler, County
Down. The Claimant says that he was involved in intelligence work, an assertion
that is strongly disputed by Major Boileau Goad. The incident involving the Sinn
Fein councillor took place at Rathfriland, County Down. On the Claimant’s version
he lost his control under extreme stress and provocation and fired his weapon
twice at the Sinn Fein councillor, one bullet nicking his ear. He says that the
matter was investigated by his superiors who worked out what must have happened
and took punitive action by transferring him from his unit to the Army Recruiting
Office in Bangor. The MoD has served statements from Lieutenant Colonel Hughes
who investigated the incident. Lieutenant Colonel Hughes believed that the perpetrator
was in fact a Lance Corporal, not the Claimant. But no ammunition was found to
be missing and it was not possible to examine the rifles of all those in the platoon.
He denies telling the Claimant that he thought he knew what had gone on. More
importantly he says that had anyone believed the Claimant to have been responsible
he would have been removed from duty. Furthermore the MoD strongly denies the
contention that the Claimant was moved to the recruiting job at Bangor as a punishment.
Lieutenant Colonel Hughes denies telling the Claimant that he "Needed
to come out of active service." But more importantly it is submitted
that the documents demonstrate that the move to Bangor must have been arranged
before the Rathfriland incident. If Lieutenant Colonel Hughes did not believe
that the Claimant was responsible for discharging his rifle, and secondly his
move was not a punitive response to the incident, then there was nothing to trigger
the psychiatric investigation for which Professor Weisaeth contends.
10.24 There
is no precise evidence as to when the incident occurred. In his statement the
Claimant says it was in April/May 1989. The relevant documentary evidence is contained
in the annual report for the year ending 1 March 1989. The CO’s report by Lieutenant
Colonel Ross says that the Claimant was shortly to be employed as a recruiter.
That part of the report is dated the 30 April 1989 and countersigned by the Claimant
on the 15 May 1989. Thus the document does not demonstrate on its face that either
it, or the decision to post the Claimant to Bangor, pre-dated the Rathfriland
incident. But Brigadier Ross says that the Claimant would have been consulted
about the move to Bangor several months before April 1989. Secondly he says -
"I
had an extremely high opinion of the Claimant as described at para 20 of exhibit
DA1 in which I say that he should have been selected for early promotion and that
I expect him to be particularly successful as a recruiter. Only high-grade non
commissioned officers would have been selected for such posts. I recall that the
Claimant was keen to take up this post otherwise he would not have specifically
requested this posting. I regarded this post as a logical career move, which would
strengthen the Claimant’s profile for further promotion. There would be no question
of appointing a soldier to be a recruiter if he did not wish to go. To do so would
have been counterproductive to the recruiting effort. "
10.25 Furthermore
Lieutenant Colonel Hughes says that it was he who recommended the Claimant for
an operational award, and that he cannot believe that the CO, Lieutenant Colonel
Ross, would have endorsed the recommendation had he suspected that the Claimant
was responsible for the Rathfriland incident. He expresses considerable disappointment
at learning from the Claimant’s statements both that he was responsible for discharging
the firearm, and secondly that he was involved in concealing his role.
10.26 I
have come to the conclusion that the evidence from the Defendant’s witnesses on
this issue is reliable. I note that Lieutenant Colonel Hughes appears to have
made a mistake in describing the Claimant as a Welsh speaker; but I do not consider
that that undermines his evidence that he did not suspect the Claimant of having
been responsible for discharging the firearm. That evidence is reinforced by his
recommendation of the Claimant for an award. In my judgment it is highly improbable
that such a proposal would have been made and endorsed by the Commanding Officer
if one or other or both were aware that the Claimant had been involved in an incident
in relation to which a Sinn Fein councillor had made a complaint, albeit that
the complaint was subsequently withdrawn. Furthermore the Claimant’s contention
that he was moved as a punishment and that in his view he was being moved to a
dead end job, does not rest easily with his subsequent annual reports which record
that he carried out the role with conspicuous success. My conclusion does not
of itself undermine Professor Weisaeth’s diagnosis, but it is highly relevant
to the issue of detection.
10.27 The
Defence expert, Dr Jacobson, sets out his conclusions at considerable length.
He analyses the evidence as to the Claimant’s psychological condition on each
of his five tours of duty in Northern Ireland. He found no evidence of psychiatric
disorder in relation to the first three tours of duty. As to the fourth he refers
to the shooting incident at Rathfriland and continues -
"Aggressive
behaviour and nightmares are consistent with depression, post traumatic stress
disorder, or may occur during heavy drinking. Whilst there is no independent evidence
that he had a psychiatric disorder, his reported abrupt removal to Bangor is consistent
with the detection of a problem and the solution appears to have been his removal
from the context. He tells me he did not seek help for alleged psychological symptoms."
Dr
Jacobson did not at that stage have the witness statement served on both sides.
10.28 He
then considers the important events in the four-year interval between the Claimant’s
fourth and fifth tours of duty in Northern Ireland. In 1990 the Claimant caught
his first wife in bed with another man following which he had his first flashback
to events in Northern Ireland. But he told Dr Jacobson that he was otherwise "…enjoying
life busy working during the day, looking after youth clubs at night, had a new
girlfriend…" He says that meeting Susan was "…love at first
sight." They met in November 1991 and married in May 1992. Dr Jacobson
says that -
"This
course of events is not compatible with a mild psychiatric disorder associated
with work conversational or other incapacities".
He
concludes that –
"…the
Claimant had distress with intrusive memories of time in Northern Ireland, flashbacks
probably provoked by stressful events and alcohol, but generally coped, and it
is arguable whether he had a recognized psychiatric disorder, except an acute
stress reaction… after catching his wife committing adultery."
10.29 Dr
Jacobson then describes the deterioration in the Claimant’s condition following
his unsuccessful attempt to leave the army in 1992 and his move to Tidworth on
a two year posting. He gradually developed headaches, insomnia, loss of appetite
and weight, crying when drinking heavily, and moodiness, and complained about
a return to Northern Ireland. That was the point at which he was seen by Dr Mileham
and referred for a neurological opinion. Dr Jacobson’s assessment is that at that
point -
"…the
Claimant had tension headaches, with considerable anxiety that he too had a brain
tumor, in the context of an acrimonious divorce, new wife’s lack of enthusiasm
for army life, his hopes for children with her, as he requested a vasectomy reversal,
as well as distress about return to a fifth tour of duty.…On the balance of probabilities,
the diagnosis was then mild-to-moderate depressive episode…with marked anxiety
features, probably generalized anxiety disorder (including tension headaches)
in a setting of harmful alcohol consumption."
As
to the fifth tour of duty in Northern Ireland Dr Jacobson considers that -
"On
the balance of probabilities, he probably had a fluctuating depressive episode
between mild and mild-to-moderate with anxiety features."
He
considers that the Claimant -
"…by
and large coped until a particular incident when he had to walk unarmed through
hostile streets. This probably provoked an acute stress reaction or acute stress
disorder."
He
considers that since leaving the army the Claimant has had -
"… Significant
fluctuating post traumatic stress symptoms, probably reflecting moderate post
traumatic stress disorder, associated with fluctuating depression, varying between
depressive symptoms and moderate to severe depression at times, with suicide attempts,
considerable anxiety symptoms, in the setting of very heavy drinking, but no alcohol
withdrawal symptoms."
10.30 As
I have already indicated Dr Jacobson did not have the witness statements available
to him when drafting his substantive report; but he subsequently saw them when
he prepared an addendum dated 22 October 2001. The statements did not lead him
to modify his conclusions.
10.31 I
find Dr Jacobson’s analysis compelling. It is based upon a comprehensive, careful
and balanced review of the available material. I do not find the report from Professor
Weisaeth as impressive. He is somewhat selective in his use of the available material;
in particular he fails to give sufficient weight to the detailed content of the
Claimant’s service history. Furthermore it is difficult to discern from his report
when it is that he considers that the Claimant was first suffering from a diagnosable
psychiatric disorder. In this case I have no hesitation in preferring the evidence
of Dr Jacobson.
10.32 Accordingly
I am satisfied that whilst stationed at Tidworth prior to his final tour of duty
in Northern Ireland the Claimant was suffering from a "mild to moderate
depressive episode with marked anxiety features, probably generalized anxiety
disorder in a setting of harmful alcohol consumption", secondly that
during the fifth tour of duty in Northern Ireland he developed a fluctuating depressive
episode between mild and mild-to-moderate with anxiety features. The question
is therefore whether those conditions should have been detected.
10.33 As
to his condition when at Tidworth, the Claimant saw Dr Mileham in December 1992
when she referred him for a neurological opinion. The Claimant told her that he
thought his headaches could be stress related. It is clear from her letter of
referral to the neurologist that the history that she elicited revealed a number
of potential sources of stress. It is not suggested that the Claimant related
the stress to his experiences in Northern Ireland. In my judgment she was not
at fault in failing to make that connection.
10.34 The
service record reveals that his performance fell off during his time at Tidworth;
but that was readily explicable by the fact that he was serving out his time having
made an unsuccessful application for redundancy. In my judgment his superior officers
were not at fault in failing to suspect that he was suffering from a psychiatric
disorder.
10.35 The
final question is therefore whether his superior officers ought to have detected
or suspected a psychiatric disorder during the fifth tour of duty. It is clear
that the Claimant did not want to go back to Northern Ireland. It is also clear
that he fell out with his commanding officer, Major Kilvert-Jones. Lieutenant
Colonel Lloyd gives evidence that there was clash of personalities between the
Claimant and Major Kilvert-Jones as a result of which he thought it best to move
the Claimant to battalion headquarters. The consequence was that in August 1993
the Claimant was sent home where he was given home leave for the period of approximately
six months before his service expired. Lieutenant Colonel Lloyd says that he was
given home leave not because, as the Claimant asserts, he was, "losing
it", but as a reward for loyal service to enable him to complete pre-release
courses and better to prepare for civilian life. The Claimant says that by this
stage he was getting severe headaches and panic attacks and was drinking heavily
although less than previously because there was less opportunity on active service.
He says that two colleagues, Chris Ward Jones and John Wood, telephoned the CO
to express their concerns about his behaviour. Mr. Jones has submitted a witness
statement in which he says that following a telephone conversation with the Claimant,
he was so concerned that he rang the Claimant’s RSM, Derek Adams, saying that
he had concerns about the Claimant. He says that Derek Adams replied that "…they
knew about the problem and they were going to sort it out tomorrow." That
was apparently the day before the Claimant fell out with Major Kilvert-Jones.
Derek Adams has also made a witness statement in which he says that he has no
recollection of a telephone call from Mr. Jones, but that if he had received such
a call he would have immediately investigated the situation and asked for medical
advice.
10.36 In
my judgment the issue as to whether or not there was a telephone call from Mr.
Jones to Mr. Adams is of critical importance. If it was made then according to
Mr. Adams, he would have investigated and referred the Claimant to the MO. If
that had happened the MO would have seen from the Claimant’s medical record that
the investigations initiated by the neurologist had not in fact been completed.
As Dr Mileham says, had the CT scan been normal, then it would have been necessary
to investigate the possibility of a psychiatric cause for the Claimant’s symptoms.
Thus the probability is that had the Claimant been referred to the MO at that
stage, the psychiatric disorder diagnosed retrospectively by Dr Jacobson would
have been detected. How then is that issue to be resolved? In my judgment it is
inherently improbable that Mr. Jones would have invented such evidence. Secondly
Mr. Adams is unable to say that it did not happen, simply that he does recollect
it. I am therefore satisfied on the balance of probabilities that it did occur,
and that the Claimant’s condition should therefore have been detected before his
discharge from the army.
10.37
The second and related point is whether the incident with Major Kilvert-Jones
should have led the Claimant’s superior officers to detect or suspect a psychiatric
problem. On the Claimant’s account of the incident he was guilty of gross insubordination;
but no disciplinary steps were taken. He was simply moved away. Most interestingly
the Claimant says that "Colonel Lloyd actually told me that he backed
me 100%, but Major Kilvert-Jones had the final say." If that is correct
then it suggests that Lieutenant Colonel Lloyd at the very least had some sympathy
with the Claimant’s position, a suggestion reinforced by the steps that he took
to resolve the problem that there clearly was between the two individuals. But
it also runs counter to the argument that the episode with Major Kilvert-Jones
ought to have given rise to a suspicion that the Claimant was suffering from a
psychiatric disorder. Thus I am not persuaded that of itself the incident ought
to have given rise to such a suspicion. But of course if, as I have found to be
the case, there was a telephone call from Mr. Jones to Mr. Adams in the terms
that Mr. Jones describes, and if that had been communicated to Lieutenant Colonel
Lloyd, that would have put the episode with Major Kilvert-Jones in a different
light, and would have reinforced the case for referral to the MO.
10.38 Culture
There
are no features of this case that add significantly to the evidence as to culture
given in the other lead cases.
11. MELVYN
WEST
11.1 Melvyn
West was born on 18 May 1968. On 7 December 1988 he enlisted in the Light Infantry.
He did not do well in his basic training having to retake various tests, but eventually
joined his regiment on 10 July 1989. He subsequently served three tours of duty
in Northern Ireland, a full tour from 1 January 1990 to 16 May 1990, and two short
emergency tours from 30 November 1990 to 22 December 1990 and from
30 August 1991 to 20 September 1991. On 6 November 1991,
a matter of days before his three year term of service was due to come to an end,
he was arrested on a charge of possession of cannabis and as a result was not
permitted to leave the army. His court martial did not take place until 10
June 1992 when he was sentenced to six months detention. Remission for good
behaviour resulted in his release from the Military Correction and Training Centre
at Colchester on 6 October 1992; and he was discharged from the army on the same
day. On 23 March 1994, eighteen months after leaving the army, he was diagnosed
by Dr D A Jones, the consultant psychiatrist, as suffering from PTSD.
11.2 It
is the Claimant’s case that in the course of his first tour of duty in Northern
Ireland he was exposed to extreme stressors, one of which caused an acute stress
reaction which developed into PTSD with secondary substance abuse.
11.3 The
MoD does not admit that he suffered an ASR on his first tour of duty, and denies
that he was suffering from PTSD during his army service. Its case is that he suffered
a reactive depression in 1992 caused by problems in his relationship with his
girlfriend and by his pending court martial for drug offences. The MoD’s expert,
Dr O’Brien, considers that after the Claimant left the army he developed increasing
depressive symptoms and then "Decompensated with the presentation of symptoms
of post traumatic stress disorder".
11.4 Accordingly
the issues to be determined are -
1.
whether the Claimant suffered an ASR during his first tour in Northern Ireland,
and if so, whether it was appropriately managed by his commanders,
2.
whether he developed PTSD during his military service, and if so, whether it should
have been detected before his discharge.
11.5 Issue
1
Before
undertaking his first tour of duty in Northern Ireland the Claimant underwent
NITAT training in the usual way. His performance reflected his poor performance
in his basic training. Warrant Officer Wood, who was his platoon sergeant during
the tour, says in his witness statement -
"When
our battalion began NITAT training prior to our deployment in 1990, the Claimant
was placed in Captain Gilbert’s multiple. Towards the end of the training, Captain
Gilbert moved him into my multiple. I remember Captain Gilbert discussing him
with me during our assessment of how our men had managed during training. It was
our job to identify the weaker members of the platoon and ensure that they were
placed with a strong leader who might be able to get the best out of them. The
Claimant was identified as one of the weaker in our battalion. He was not good
at retaining information."
11.6 As
a result of the weakness that had been revealed in training Warrant Officer Wood
decided to allocate him to Corporal Hartshorne’s team –
"I had
placed the Claimant in Corporal Hartshorne’s team within my multiple. I did this
because I rated Cpl Hartshorne as an extremely good NCO who I knew would keep
an eye on the Claimant without barking orders at him. Cpl Hartshorne and I had
grown up together. We were very good friends and I trusted him to look out for
the Claimant."
11.7 On
16 March 1990 the Claimant was on foot patrol in Crossmaglen when his patrol leader,
Cpl Hartshorne, was knocked down by a high velocity round fired by a IRA sniper.
The round struck and pierced his helmet; but Cpl Hartshorne was physically uninjured.
The Claimant says he was terrified by the attack initially believing that Cpl
Hartshorne had been injured or killed and expecting further shots to follow.
11.8 It
is alleged in the Amended Particulars of Claim that –
"The
Claimant suffered an ASR shortly after the shooting involving Corporal Heartshaw
(sic). He broke down in tears in barracks at the prospect of a patrol to Blackrock.
Both Heartshaw and the Claimant’s Platoon Sergeant were involved in calming the
Claimant down and the patrol was cancelled.
Thereafter
the Claimant was troubled by increasing symptoms of PTSD, including nightmares,
flashbacks anxiety and hypervigiliance."
11.9 In
his first witness statement the Claimant says
"Within
days of the initial shooting I broke down….Corporal Heartshaw (sic) came to see
me to calm me down. My Platoon Sergeant, whose name I cannot recall, spoke to
me and I told him I wanted to go home. My involvement in the Black Rock patrol
was cancelled. I am not sure whether the patrol itself was cancelled"
11.10 The
MoD accepts that the Claimant was distressed following the incident but does not
admit that he suffered an ASR, although Dr O’Brien agrees with Dr Deahl that if
the Claimant’s account is accepted, it is indicative of ASR/ASD. There is a substantial
body of evidence confirming much of the Claimant’s account of his reaction to
the shooting. Thomas Brown, who was serving in the same platoon, describes the
aftermath of the incident in the following terms –
"I
recall shortly after that I became extremely concerned about the attitude of Melvyn
West. I must say that I always thought Melvyn was an unstable strange lad even
before the incident with Cpl Hartshorne. He seemed to have wild eyes, permanently
tense and on edge and tended to volatile behaviour. I am not sure whether these
were due to any problems he had at home or to the stress in Northern Ireland or
a combination of both. He seemed not to be able to cope with the stresses of Northern
Ireland…
I
cannot remember the exact time but I do remember one particular incident with
Melvyn West after the Hartshorne incident. The intercom system was on and I could
hear Melvyn was effectively talking and screaming to himself. I genuinely thought
he had gone mad. He was having a conversation with himself. I reported him to
the unit head at that time who I think was a chap called Wood. I am not sure if
it was reported further up the line. I think the Multiple Commander was a chap
called Gilbert. I don’t know what happened to Melvyn thereafter but he remained
within the unit. He was not FMed 8 referred. I have no doubt in my own mind that
he should have been."
11.11 Warrant
Officer Wood says that Cpl Hartshorne’s team was immediately taken off the ground
and removed to barracks. The team was debriefed by the company commander and the
operations officer as soon as it returned. That involved describing exactly what
had happened from the moment that team left the base to the point at which the
shooting occurred. It appears that it received a further debriefing from RUC police
officers who were keen to ensure that every detail of the incident was properly
recorded. Mr. Wood goes on to say there was great concern about Cpl Hartshorne
"despite the fact that he seemed relatively OK." He says that
he believes his team were moved to Bessbrook, the British Army’s main headquarters
in South Armagh where the padre and the MO debriefed them further and "counselled"
them. He adds that he believes that Cpl Hartshorne was sent to see a psychiatrist
at Musgrave Park Hospital. He remembers the Claimant being more worried about
going out on patrol after the incident, and says -
"He
was always very concerned about being shot but so were I and every other member
of the platoon. Some people did not seem to be able to cope with their anxieties
and this was how I viewed the Claimant. I identified him to Captain Gilbert as
something of a worry and indeed a liability".
11.12 In
his supplementary statement Mr. Wood says that he thinks the Claimant may also
have been sent to see the doctor, and that he remembers Cpl Hartshorne coming
to him and saying "… that the Claimant did not want to go out on patrols
because he was not coping." He therefore arranged to speak to the Claimant,
and gives the following account of their conversation -
"I spoke
to him in the TV room because this was the easiest room to shut off and talk without
interruption. I remember that the Claimant told me that he was scared to go out
on patrol for fear of being shot at or blown up. I did my best to try to reassure
him that it was highly unlikely that he would suffer another attack the next time
he went out on patrol. I pointed out that was the first time any of us had come
under fire on this tour. This was the exception, not the rule. I told him also
that we were all scared. We had all swallowed hard after the incident with Cpl
Hartshorne. I told him to think about this incident as a one off. He should try
to think why we were out there. I believed that he would get more comfortable
once he was out on patrol and saw that nothing was happening. I did say however
that if he still did not want to go out on patrol, I would see if I could replace
him with someone else. I spent about twenty minutes talking to him. I believe
that I then discussed him with our company operations officer and OC. "
11.13 Captain
Gilbert was the Claimant’s platoon commander at the material time. He was a very
experienced officer who had been promoted from the ranks. He has a vague recollection
of discussing the Claimant with Sergeant Wood and as a result spending some time
talking to him. He says that he had two options; first "… to try and calm
him down and talk through his concerns and hopefully reassure him about our duties,
the second was to report him to the officer commanding with a view to having him
seen by a medical officer." He goes on to say that he was not prepared
to pursue the second option until he had exhausted the first; and wanted to give
the Claimant a chance to learn to cope with life in the army and Northern Ireland.
He says that he had no justification to send the Claimant to the MO.
11.14 The
Claimant asserts he felt extremely down and depressed for the rest of the tour
in Northern Ireland and that he was advised by Cpl Hartshorne that he would be
returning home to Tidworth in an advance party "… because he thought there
was something wrong with me." Captain Wood says in his supplementary
statement that it was usual after such tours of duty for an advance party to return
to the mainland one or two weeks ahead of the rest of the regiment. He says that
the advance party usually consisted of those individuals identified by commanders
as warranting an early break, and that –
"Every
platoon has a quota and Captain Gilbert and I would have sat down to run through
likely candidates from our men. These people might be our best soldiers who we
thought could do with a rest or others like the Claimant who we thought ought
to return early because of his state of mind. We knew that he was unhappy in the
province…"
11.15 Dr
O’Brien sets out his conclusions as to the Hartshorne incident in the following
terms –
"He
describes dissociation, overwhelming fear, and then tearfulness. His description
of being almost incapacitated with fear from this point on would be a surprising
story if it were not true. From his account only it would appear Mr. West suffered
an acute stress disorder at this time. There is no evidence that he complained.
It is perhaps unsurprising that at this stage his peers thought that he was simply
scared and did not respond. Mr. West does, however, then describe the planned
patrol to Black Rock, his apparent absolute conviction that he would be killed,
and his tearfulness and his inability to move. Again I have seen no corroborative
evidence whatsoever. Again, however, this is a story which does not put him a
good light and it would be surprising if he were to fabricate such a story. If
it were true that a series of increasingly senior managers were called to see
him in that state because it was felt that he was unable to manage the patrol,
then I would have expected him to have been referred for a medical opinion there
and then. I have seen such things happen. If his story is correct then not to
have referred him in my opinion was, negligent.
The
evidence from the superior officers does not go as far as to corroborate the Claimant’s
account of his reaction, particularly so far as the Black Rock patrol is concerned.
But it does demonstrate that his superiors were alive to the problem created by
the Hartshorne incident."
11.16 Dr
O’Brien clearly attaches importance to the question of the Black Rock patrol.
The evidence does not support the pleaded assertion that the patrol to Black Rock
was cancelled; and it is inherently improbable that a patrol would have been cancelled
because of the condition of one member. But the Claimant’s evidence in his first
witness statement is that his involvement in the patrol was cancelled. He is unable
to say whether the patrol itself was cancelled. The evidence submitted by the
MoD addresses the question of whether the patrol was cancelled, not whether the
Claimant was sent on it. Some support for the Claimant’s evidence is to be found
in the supplemental statement from Sergeant Wood to the effect that he told him
"…that if he still did not want to go out on patrol, I would see if I
could replace him with someone else." In the absence of any evidence
to the contrary and in the light of the evidence as to the concern then shown
about his condition, I am satisfied that it is probable that he was stood down
from the patrol.
11.17 Dr
O’Brien says that if it were true that a series of increasingly senior managers
was called to see the Claimant because it was felt that he was unable to manage
the patrol, he would have expected him to have been referred to the MO, and that
it would have been negligent not to have done so. The evidence shows that that
is what happened. His fellow soldier, Brown, thought he had gone mad and reported
his condition to Sergeant Wood. Corporal Hartshorne also reported to Sergeant
Wood that the Claimant was not coping. Sergeant Wood talked to him in private
(see paragraph 11.12 above) and then reported his concerns to the Company Operations
Officer and the CO. It is interesting to note that Sergeant Wood also says in
his supplemental statement that he thought that "…the Claimant may also
have been sent to see the doctor…". The platoon commander, Captain Gilbert,
says that "…I then spent some 5 to 20 minutes talking to the Claimant
on our own about he felt." A summary of his account of the interview
is at paragraph 11.13 above. In the event Captain Gilbert decided not to refer
him to the MO. But it was the NCOs who would have had closest contact with the
Claimant; and in the light of their evident concern as to whether he was fit to
go out on patrol and of the expert evidence from Dr O’Brien, I am satisfied that
he ought at that stage to have been referred to the MO. The question of what the
outcome would have been had he been referred at that stage is outwith the scope
of this trial.
11.18 Issue
2
The
Claimant says that when he returned to Tidworth he began to have nightmares and
flashbacks and became hyper-vigilant, but adds -
"I
never told anybody about my particular concerns or symptoms because I was fearful
of being downgraded medically. This would have reduced my monthly pay dramatically
and increased the amount of stress that I was already under. Being medically downgraded
would have also meant that I lost all my weekend leave. I was fearful that my
platoon mates would taunt or tease or try and humiliate me."
11.19 The
Defence challenge his evidence as to the onset of symptoms of PTSD, and points
to the report from Dr Jones who first treated him in 1994, and who noted in his
report that at his first examination the Claimant told him –
"After
his release from Colchester he began to have nightmares about Ireland. He said
he would wake sweating and his girlfriend said that he moaned in his sleep."
11.20 I
take account of that inconsistency but am nevertheless satisfied that it is probable
that the Claimant began to develop some symptoms indicative of PTSD on his return
to Tidworth. The question is therefore whether they should have been detected
before his discharge.
11.21 The
Claimant says in terms that he did not tell anybody about his symptoms. How then
is the case as to detection put? It is submitted on his behalf that the fact that
he was suffering from PTSD ought to have been detected in the six month period
between his arrest on 6 November 1991, four days before he was due to be discharged,
and his court marital on 10 June 1992, a period during which he saw an MO on a
number of occasions.
11.22 The
records show that he saw the MO on six occasions during that period, but it is
only in the note of the consultation on 16 March 1992 that any reference is made
to his psychological condition. The note reads as follows
"Says he’s
feeling depressed:
has
for 5/12 been awaiting a
Court
Martial (which will generate
6/12
in Colchester). Girlfriend problems ++
at
home (Cyesis x 5/12) etc, etc
Sleep
v poor
Discussed/advised
[Prescribed]
Temazepam 10 mg nocte
Suggest
4 – 5/7 leave to unit
?
Unit to speed up his court martial
Review
– 11/7"
11.23 He
underwent pre-court martial medicals on 19 June and again on 30 June 1992; and
saw the MO at Colchester on a number of occasions during his detention with regard
to a variety of physical complaints. The only entry of any relevance to a psychological
condition was on 9 July 1992 when the MO recorded -
"Feels
men starting to make his life difficult for him. Sleep OK no EMW (early morning
waking) tense in day. No crying (or possibly " no energy"). Mood up
and down app(etite) normal."
11.24 The
criticism made on behalf of the Claimant is directed principally to the examination
carried out by the MO on 16 March 1992. In essence it is submitted
that a proper investigation would have revealed that his problems had their origin
in the first tour of duty in Northern Ireland. The counter-argument is that the
MO made a correct diagnosis of depression at that point and prescribed the appropriate
treatment. It was readily understandable that the Claimant was complaining of
feeling depressed given that he had been awaiting his court martial for five months,
that his arrest had prevented his discharge in November 1991, and that there were
problems in his relationship with his girlfriend who was pregnant. It is submitted
that his presentation was not sufficiently serious at that stage to warrant referral
to a psychiatrist.
11.25 The
Defendants also rely in this context on the result of the Claimant’s referral
to a consultant psychiatrist by his GP in early 1993. The consultant, Dr Plowman,
concluded that the Claimant appeared to be suffering from depression. He did not
make a diagnosis of PTSD. Nor does it appear that he linked the Claimant’s condition
to his experiences in Northern Ireland. By that stage of course there was no reason
why the Claimant should have had any reservation about speaking of his experiences
in Northern Ireland. But the point is undermined to some degree by the fact that
a connection between the Claimant’s condition and his service in Northern Ireland
was made by Mr. Edwards of the Ex-Services Mental Welfare Society, Combat Stress,
in January 1993 when reporting on a domiciliary visit in the following terms -
"He
has psychiatric injuries which he describes as depression, sleep loss and nightmares.
These latter appear to be turbulent dreams about imaginary combat situations.
He feels these may have some origin when shot at on patrol but also agrees that
he has yet to come to terms with his recent court martial, detention (where he
says he was intimidated), dishonourable discharge, lack of job lack of home to
go to with girlfriend and son etc. He has been prescribed anti-depressants by
his GP who wants to refer him to a psychiatrist, but so far he has refused to
go."
11.26 I
have come to the conclusion that the MO who examined the Claimant on 21 March
was not at fault in failing to make the connection between the Claimant’s condition
and his service in Northern Ireland. There is no evidence to suggest that the
Claimant complained of symptoms specific to PTSD. The MO made a diagnosis of depression,
a diagnosis that was unquestionably open to him on the presenting symptoms, and
was readily explicable by reference to the matters set out in paragraph 11.24
above. Given that the Claimant’s criticism of that consultation is the high watermark
of his case with regard to this period, it follows that I am not persuaded that
there was any breach of duty in relation to the other consultations carried out
either before or after the court martial.
11.27 Culture
There
are three features of this case of particular relevance to the generic issue of
culture. First there is the evidence from the Claimant as to why he did not tell
anybody about his concerns and symptoms. Secondly his superior officers did in
fact detect a problem following the Hartshorne incident. Thirdly there is the
evidence that Corporal Hartshorne, who underwent the trauma of his helmet being
penetrated by a sniper’s bullet when out on patrol, was sent to see a psychiatrist
at Musgrave Park Hospital. The last demonstrates that by March 1990 there was
at least in the Light Infantry a recognition that those directly involved in traumatic
incidents could suffer a reaction, and should be referred to a psychiatrist as
a preventative measure.
12. JULIE
EARL
12.1 Julie
Earl was born on 23 January 1969. On 24 August 1988 she enlisted in the Women’s
Royal Army Corps (WRAC). Following basic training she underwent training for the
military police and upon its completion in March 1989 was posted to Northern Ireland
where she served in the rank of lance corporal with the 176 Provost Company, Royal
Military Police. 176 Provost Company was not a conventional military police unit
having been established to support the RUC in Northern Ireland. Ms Earl served
in Northern Ireland until 29 May 1991. She was discharged from the army on her
own application on 8 February 1995.
12.2 When
in Northern Ireland Ms Earl was stationed at Clooney base outside Londonderry.
She was involved in manning permanent vehicle checkpoints in and around Londonderry,
Strabane and the surrounding countryside, and was also involved in foot patrols
on which she frequently had to undertake searches of female members of the public.
At the time of her service the area in which she was deployed was one of the more
dangerous parts of the province. There can be no doubt that the work was extremely
stressful and that she was exposed, whether directly or indirectly, to a number
of particularly traumatic events. It is also noteworthy that she was not required
to undergo NITAT training before being posted to Northern Ireland although she
underwent a short induction course upon her arrival in the province.
12.3 In
April 1990 the Claimant consulted the MO at Clooney base complaining of poor sleep.
The MO prescribed "Nitrazepam for three evenings to give her good rest
and make her feel physically better." It was the first of many entries
in her medical records relating to her psychiatric or psychological condition.
From that point until her discharge she was seen on a large number of occasions
by MOs who treated her for depressive symptoms. She was also referred to a community
psychiatric nurse, and to a psychologist in relation to her difficulties with
literacy. She was not diagnosed by any of those who treated her as suffering from
PTSD. In June 1991 she was seen at the Catterick medical centre by Lieutenant
Colonel Grundy-Wheeler who immediately sent her to the psychiatry department to
see Dr O’Brien. She says that when she explained her symptoms to Dr O’Brien "He
said I had post traumatic stress disorder caused by working in a combat zone for
a long time." She went on to say that this was a surprise because this
was the first occasion on which the condition had been mentioned to her. Dr O’Brien
has a vague recollection of the Claimant. He believes that he would have seen
her at one of the last, if not the last, of his clinics at Catterick where he
was engaged as a consultant psychiatrist. He says -
"What
I can remember is that it came up at interview that there was a problem associated
with an experience or experiences in Northern Ireland and I thought she might
well have PTSD. "
12.4 The
Claimant’s principal medical expert, Dr Freeman, classifies her psychiatric and
psychological status according to the DSM IV classification as-
"Acute
Stress Disorder
Post
Traumatic Stress Disorder
Major
Depressive Disorder
Chronic
Fatigue Syndrome."
He
considers that the Major Depressive Disorder and Chronic Fatigue are interrelated,
and that the PTSD is the primary disorder leading to the other two. In his opinion
she "almost certainly had symptoms of PTSD when she went to her GP in
May 1990." The Claimant has also served reports from Professor Friedman,
Dr Higson and Dr Alun Jones, who each conclude that she suffers from PTSD.
12.5 Dr
Baggaley, who reported for the MoD, does not agree. In his view Ms Earl suffers
from chronic fatigue and from a recurrent depressive disorder of mild severity.
He does not believe that she is currently suffering from PTSD, nor is he convinced
that she has ever fulfilled the criteria for such a diagnosis. But he does consider
that the recurrent depressive disorder first developed when the Claimant was serving
Northern Ireland towards the end of 1989, was in all probability caused by "…
the general stress of life as a soldier in Northern Ireland as well as the specific
traumatic experiences she had." He goes on to identify the other factors
which may have contributed to the condition.
12.6 In
the light of Dr Baggaley’s acceptance that her psychiatric condition was caused
by her service in Northern Ireland, it is submitted on behalf of the Claimant
that the difference of opinion between the experts as to the correct diagnosis
does not advance the argument as to the generic issue of detection.
12.7 There
is also an issue between the parties as to the stressors to which the Claimant
was in fact exposed during her service in Northern Ireland. The conflict is most
stark in relation to the death of a soldier, Private Mason, in the summer of 1989.
The Claimant asserts that she saw Private Mason shortly after the shooting when
he was still alive, and that on the following day she was ordered to attend the
post mortem. She says that she found both experiences horrific. The Defendant
has served a considerable volume of evidence directed to demonstrating that she
was neither present at the scene in the immediate aftermath of the shooting nor
at the post mortem. It is also submitted on behalf of the MoD that she has in
other respects exaggerated her exposure to trauma. By way of example in relation
to an incident at the Strabane checkpoint in November 1990 the Claimant alleges
that she was present when a lorry drew up and the driver said that "…his
mate had stopped breathing and she could be seen to be convulsing. The young man
died in the Claimant’s presence. It was suggested by military observers later
that day he had been electrocuted when manufacturing mortars on the other side
of river." The Defence point out that the Claimant had originally alleged
in paragraph 9 (4) of the statement of claim that she was "exposed to
death such as people being electrocuted or hung."
12.8 What
then are the issues to be determined within the limited ambit of the trial of
the lead actions? I agree with the submission made on behalf of the Claimant that
resolution of the issue as to the correct diagnosis does not advance the case
with regard to the generic issue of detection. The Claimant’s psychiatric disorder
was detected. The only issue is whether those who treated the Claimant during
her military service ought to have made the connection between her psychiatric
disorder and the stresses to which she was exposed in the course of her service
in Northern Ireland.
12.9 The
first question is whether there is any evidence that the Claimant specifically
raised any matters which ought to have led those who saw her to make such a connection.
Her evidence does not suggest that she did. She says that when she saw Dr Rossiter
in September 1990 about having flashbacks, it was he who told her that she was
under a lot of pressure and that it was understandable that she was experiencing
anxiety as she was with a unit in Northern Ireland. She was then seen on 12 November
1990 by a clinical psychologist, Margaret Searle, for an assessment for dyslexia.
The Claimant says that she did not mention how she was feeling to Dr Searle saying
"I felt that this was completely separate…at that time I really did not
want to admit what I was feeling." On 4 June 1991 she saw Captain Roberts
at the Catterick Medical Centre and simply says that he was very unsympathetic.
Within a matter of days she returned to the centre and saw Major James who according
to her, showed no interest saying "We’ve all been to Northern Ireland
you know". Later in the same month she was seen by Lieutenant Colonel
Grundy-Wheeler who referred her to Dr O’Brien, the referral to which I have already
made reference. The next relevant evidence from the Claimant relates to the early
part of the following year, 1992, when she says that she was reluctant to ask
for any more help from the army medical profession because she had lost confidence
in them and specifically that -
"I
was reluctant to mention anything about Northern Ireland because although I knew
it was very real, there was an embarrassment factor in being medically discharged
from the army. My employment prospects would be limited."
12.10 It
is also noteworthy in this context that on 16 April 1993 she applied for classified
special duties writing in her application –
"Applies
for classified special duties; "Having served in 176 Pro Coy RMP, I became
aware of the existence of such specialist units within the Province and developed
a keen interest in the roles of these units, however, the opportunity to join
such a unit never arose. This interest stayed with me after leaving the Province
and now that this opportunity has arisen I feel that if I do not attempt it now,
the chance may not arise again for a considerable time.
I
feel that my personal abilities and qualities would be conducive to the requirements
listed and I relish the thought of such a challenging yet rewarding opportunity,
which would, no doubt, be of the utmost benefit to myself and the Corps."
Interview noted to be arranged for 23 April. Subsequent note to "reapply
in 1 month if she is still interested"."
A
year later she applied for the Low Risk Search Team Course saying
"I
feel that having enjoyed my previous experience in Northern Ireland as a female
searcher I would like to be given the opportunity to expand my knowledge in this
field."
Supported
by her RSM and Platoon Commander; the latter noted that this was a prelude to
likely application for close protection work.
Application
supported by all those asked to comment."
12.11 Thus
the evidence from the Claimant is to the effect that she did not herself advance
any information which would have led those whom she consulted to make the connection
between her psychological condition and her service in Northern Ireland; but secondly
that such a connection was in fact made on a number of occasions by those who
treated her.
12.12 The
second body of evidence that bears on this issue is that from the doctors who
saw her as to their state of knowledge about post traumatic disorders at the material
time. Major Rossiter saw the Claimant on three occasions in September/October
1990 and on further occasions in the early part of 1991. He had served in Northern
Ireland between June 1990 and June 1991 and immediately prior to his posting had
undergone the PGMO Course at the RAMC Training Centre. He says that a very substantial
part of the course was devoted to training MOs in the recognition and management
of "Battlefield stress" and "post traumatic stress disorders."
Dr Grundy-Wheeler saw the Claimant on nine occasions between July 1991 and
June 1992. He does not specifically address his state of knowledge as to post
traumatic disorders in his witness statement; but his note of 8 July 1991 records
that he intended to discuss her condition with the community psychiatric nurse.
He says that he did so because "CPN’s were highly trained in the whole
area of PTSD and, I thought, were more experienced than I in managing this condition."
12.13 The
Claimant was seen by Dr James on four occasions between July 1991 and December
1991. She continued to treat the Claimant for depression. But she says that -
"At
the time of the first meeting with the Claimant, I had gained experience of general
practice psychiatry, in particular having been instructed in the recognition of
depression, stress and post traumatic stress disorder after returning from the
Gulf war, four months prior to meeting the Claimant. "
12.14 On
31 January 1992 the Claimant was seen by Captain Roberts a senior CPN. He says
that by the time that he was deployed to the Gulf in 1990 he was fully conversant
with PTSD and that in the Gulf he had spent a great deal of time assessing the
Iraqi patients presenting with symptoms of PTSD and battle shock. He said that
he had also carried out psychiatric work following the Mill Hill bombing in 1986
and that –
"I
was therefore very well aware that witnessing or experiencing terrorist acts in
Northern Ireland which was something that could result in development of PTSD."
12.15 In
March 1994 the Claimant was seen by Lieutenant Colonel Hodgson who says that she
was fully aware of major signs and symptoms of PTSD but that the Claimant did
not exhibit those signs and symptoms to her. She explains that she had spent three
years practising army psychiatry between 1983 and 1986 and had "… had
talked with at least a dozen patients with PTSD". She diagnosed a depressive
illness and commenced treatment with an anti depressant. She goes on to explain
in her statement why she did not consider that the Claimant was suffering from
PTSD.
12.16 The
Claimant was also seen by Dr Stewart on 11 May 1994. He too made a diagnosis of
depression and not PTSD, but says that he had a fair amount of experience of military
medicine and was certainly aware of PTSD as a diagnosis and its signs and symptoms.
Furthermore it was on this occasion that the Claimant specifically asked to be
referred to the community psychiatric nursing service; and in his letter of referral
Dr Stewart recorded that between 1989 and 1991 she was on special duties in Northern
Ireland "following which she suffered some post traumatic stress disorder."
He says that is a reference to what she told him about her past medical history.
12.17 In
the light of that body of evidence I am not persuaded that there was any breach
of duty on the part of the doctors who treated the Claimant in failing, as is
alleged, to make a connection between her psychiatric condition and exposure to
traumatic events when serving in the province. I accept that all those who treated
her were familiar to a greater or lesser degree with PTSD and its signs and symptoms,
and that their diagnoses of depression reflected their clinical findings.
12.18 As
to the generic issue of culture the evidence in this case does not suggest a cultural
antipathy to the acknowledgement of trauma related psychological injury. The Claimant
sought help for her psychological problems and received treatment over prolonged
periods. Moreover there are ready explanations for the Claimant’s reluctance on
occasions to give a full account of her feelings, namely her loss of confidence
in the army medical service resulting from what she perceived to be the failure
to cure her, and secondly the wish to avoid a medical discharge given her ambition,
which sadly has not been realised, to join the civilian police force.
13. JOSEPH
KELLY
13.1 Joseph
Kelly, who was born on 13 September 1953 served in the Royal Electrical and Mechanical
Engineers (REME) from April 1972 to September 1993. He served two tours of duty
in Northern Ireland, the first a very short period of only two weeks in 1974,
and the second in 1981 for four months. On 6 January 1991 he was deployed to the
gulf on Operation Granby but returned to his unit in Germany on 21 January 1991
having sustained injury to his ankle. He left the army after serving a full twenty
two year period in the rank of Staff Sergeant.
13.2 His
claim is advanced in the Amended Statement of Claim upon the basis that as a result
of stresses encountered in service in Northern Ireland he suffered a breakdown
and mild/sub clinical PTSD/PTD, and that from about 1985/6 he developed a Generalized
Anxiety Disorder and from 1988 an Agitated Depressive Illness. It is further alleged
that he was sent to the Gulf "… when known to be grossly unfit, both psychically
and emotionally, and upon his return developed a major depressive illness, enduring
personality change and alcohol dependant syndrome on top of a continuing generalized
anxiety disorder."
13.3 There
is some measure of agreement between the experts, Dr Freeman, who reported for
the Claimant and Dr Caplan, who reported for the MoD. They agree that Mr. Kelly
has not suffered from PTSD. They also acknowledge, as is clear from the medical
records, that Mr. Kelly has suffered from symptoms of anxiety and depression over
many years. They diverge in their formal diagnoses; but as is submitted on behalf
of the Claimant and as Dr Caplan observes, the label to be attached to Mr. Kelly’s
presenting symptoms may not be of great significance. Dr Freeman considers that
Mr. Kelly suffered from Generalized Anxiety Disorder from 1985-1986 onwards and
Agitated Depressive Illness from 1988 onwards. His diagnosis of Mr. Kelly’s condition
post the Gulf is of a generalised anxiety disorder and subsequently a major depressive
illness. Dr Caplan’s view is succinctly summarized in the conclusion to his first
and substantive report in the following terms -
"I
consider it most likely that Mr Kelly suffers from an Adjustment Disorder (International
Classification of Disease Code F43.21).
There
have been multiple contributing life events towards the development of Mr Kelly’s
adjustment disorder. His adverse army experience has contributed only a small
amount.
Mr
Kelly has a number of inherent personality characteristics which have predisposed
towards the development of his psychological difficulties.
The
main factor in the development of Mr Kelly’s psychological difficulties has been
the development of his knee problems and the subsequent limitation upon his army
career.
I
could find no evidence that Mr Kelly had suffered psychiatric damage as a result
of his Northern Ireland experience.
Mr
Kelly had begun to develop significant psychological difficulties during the three
or four years before his Gulf War experience.
Mr
Kelly’s Gulf War experience was a significant stressor and will have had some
impact upon his psychological presentation.
Mr
Kelly’s prognosis remains poor and on the balance of probabilities there is little
likelihood of significant improvement."
13.4 In
his fourth report dated January 2002 he addresses the specific question of Mr.
Kelly’s diagnosis under DSM – IV-
"My
diagnosis under this classification system would be adjustment disorder with mixed
anxiety and depressed mood."
13.5 In
his fifth report dated, 2nd May 2002, he made the following comment
on the difference of approach between himself and Dr Freeman
"Diagnostic
differences between Dr Freeman and myself would seem to center round our differing
views of Mr. Kelly’s overall character. There are more academic differences between
us but the specific application of the classification systems which represent
a legitimate argument within the psychiatric profession and which I would prefer
to avoid discussing here in too much detail, as they would only detract from the
issues facing the court. We both would seem to agree that Mr. Kelly’s presentation
consists mainly of symptoms of anxiety and depression."
13.6 It
is clear from the pleadings and from the submissions made on behalf of the Claimant
that the central issue in this case is whether he was fit for service in the Gulf.
Should he have been sent to the Gulf given his history of psychological problems?
That is not an issue that bears on the generic issue of detection. The alleged
breach of duty is not a failure to detect his psychological or psychiatric problems,
but a failure to address them effectively and to take them into account when deploying
him to the Gulf.
13.7 It
is submitted on behalf of the Claimant that the issue of his fitness for service
in the Gulf is relevant to the generic issue of culture in that the alleged failures
on the part of the MoD are said to be illustrative of a culture antagonistic to
psychological or psychiatric disorder. I do not agree. The issue turns on facts
specific to the Claimant. I do not consider that I would be assisted in determining
the generic issue of culture by resolution of the issue of the Claimant’s fitness
to serve in the Gulf.
13.8 The
issues that are within the ambit of this trial relate to the period between the
Claimant’s return from the Gulf and his eventual discharge from the army. What
was his condition during that period? Was it detected, and if not should it have
been?
13.9 Those
questions have to be considered in the light of the Claimant’s condition prior
to Operation Corporate. It is not necessary to embark upon a review of the lengthy
history revealed in the medical records. There are two principal and interrelated
themes, the instability in his right knee following a skiing accident in 1977
and his long standing psychological problems. They are illustrated by the following
entries -
"3rd
March 1989
Long
chat. Symptoms pouring forth. Agitated, tearful, anxious. Long history of epigastric
problems on Zantac maintenance. Has been extensively investigated for [ENT?] problems
and downgraded because of knee. Feels depressed, tearful at times for no apparent
reason. Wakes early morning. Must keep himself active. Not suicidal. Impression.
Depression with anxiety. No physical cause for symptoms. Plan Prothiaden 75 mg
at night."
"3rd
April 1989
Quite
(can’t read) agitated, depression – (can’t read) agitated, pressure of speech
and so forth. ? could this be a psychosis? Watch for serious signs of psychosis.
Feels a bit better on Prothiaden, but still very agitated and tearful. Not actively
suicidal. Problems with right knee (can’t read) need to get off F7X – I agree.
Not to drive (agitated state). This man has a history of anxiety/nerves and mild
hypochondria/hysteria Clearly in need of careful (can’t read). Diagnosis hysterical
personality with affective disorder."
"7th
March 1990
Didn’t
take amitriptyline – zombie. Not sleeping. Quite wound up. Burst into tears. Ashamed.
Can’t cope with pressures at work. Nervous cough. Accident in past (September).
Three years in army left. Fed up. Stays for the money. I need to be needed. Doesn’t
want unit to know. Lofepramine 75 mg (an antidepressant). See CPN (community psychiatric
nurse)."
It
is noteworthy that the next entry for 14 March 1990 records that the Claimant
did not want to be referred to a psychiatrist.
13.10 It
is then necessary to consider the medical and service records following the Claimant’s
return from the Gulf. On 17 April 1991, approximately three months after his return
he saw the MO who recorded that he was having physiotherapy for his right ankle
but also "Anxiety state…..Long chat/psychotherapy". He prescribed
sleeping pills. On 1 August 1991 he saw a consultant orthopaedic surgeon in relation
to his ankle injury. He recorded "…I get the impression from having read
his previous notes that he is more cheerful now."
13.11 His
annual report dated 7 November 1991 was in the following terms
"SSgt
Kelly is an Artisan SSgt who was initially employed as the Inspections Team Leader.
He deployed to the Gulf with the Unit, but unfortunately was injured in the second
week, and returned to the unit’s peace location after a short rehabilitation period
in the UK.
Whilst
waiting for the unit to return from the Gulf, SSgt Kelly successfully attended
a Mess Supervisors course and on completion was employed in the SSgt Mess in his
supervisory capacity. With his natural enthusiasm and zest he took on the
task of transforming the Sgts Mess from its then low but acceptable level to producing
an efficient Hotel like concept, with good management, catering and domestic levels
but without upsetting the present staff.
Although
a quiet man, he exercises leadership through example rather than discipline, and
is always ready to accept new responsibilities, especially those out of the ordinary.
His ability to get things done, coupled with his organising ability and resourcefulness
make him a prominent figure in Workshop life.
SSgt
Kelly is medically downgraded but what he lacks in physical fitness he makes up
for in his ever present willingness to help in all unit functions, social or sport."
13.12 In
May 1992 the medical records note that his wife had left him for another soldier
leaving their children with him. They then record a number of long talks with
the RMO as a result of the breakdown of his marriage. On 4 May 1992 he applied
to return to the United Kingdom on compassionate grounds, an application that
was granted on 29 May. The application form said -
"Application
by unit for retention in the UK on compassionate grounds:
"SSgt
Kelly was until recently a reliable, conscientious SNCO, happily married with
2 children, the breakdown of his marriage could not have come at a worse time,
he was preparing to leave the Army in September 1993 after a full career and settle
in Scotland…
At
present SSgt Kelly is unable to carry out his duties due to the worry of not only
his children’s future, but also the third party involved in the marriage breakdown
still resides in the Garrison area."
13.13 His
annual report for 26 June 1992 said that he had continued to provide an excellent
service and that "It is unfortunate that he has separated from his wife
during the tour: he has not let this affect his work…"
13.14 As
a result of being given compassionate leave Mr Kelly served out the last six months
of his engagement in his hometown, East Killbride. His medical care was then provided
by his local GP with whom he registered on 6 September. On 14 September
Kelly was noted by his GP to be very upset about his wife leaving him. There is
no record of his problems being related to the Gulf. The first mention of the
Gulf is in an entry for 18 November 1992.
"Tense,
irritable and ill tempered. Headaches have come and gone. Left arm aches and leg
paraesthesia after flexion. Lethargic by day. Not sleeping by night. In last year
injured in Gulf, trapped in hospital on fire. Told laryngeal cancer (benign polyp).
Wife (can’t read) operation changed lifestyle. Reduced feelings of worth, lifestyle
and support, job done in army. Stress. Discussed all. Temazepam 10 mg. (NOT AGAIN
(taken in past).)"
13.15 Mr
Kelly was discharged from the army on 12 September 1993. On 9 February 1994 his
GP recorded -
"Had
RT in Germany, told he had cancer. Both led to stress. Feels he was labelled.
Burst into tears at interview (insurance) this morning. On disability. Single
parent family. Interview YMCA. Off Fluanxol 1 week now didn’t feel good. Clinical
psychology soon. Remembers fear in Gulf (if on T.V.) many aspects upsetting.
Extrovert in army and worked ++ involved in everything. He was there for everyone
else. Feels been let down. Had position of high responsibility in army."
(emphasis added)"
13.16 The
GP then referred him to the Clinical Psychology Department at Hairmyers Hospital
where he was seen by Dr White, a clinical psychologist, on the 29th
March 1994. Dr White concluded –
"There
is no doubt that he is very anxious just now although I would not classify this
as post traumatic stress disorder as contrary to the impression he tried to give
I believe he has had psychological problems for some time. I was rather intrigued
by some of the comments Mr Kelly made to me. He seemed very keen to impress me
and for example told me that he was revered by everyone in the army that, for
example if he went to a dance he could have the pick of the bunch, that he was
an excellent driver, that he had the best furniture and that everyone looked up
to him etc.. I’m not sure if this relates to his personality or just a basic need
for approval during what must have been a very difficult time in his life".
13.17 Dr
White, a specialist in anxiety disorders, did not apparently attribute Mr. Kelly’s
symptoms to any trauma-related condition.
13.18 I
also have the advantage of witness statements from Mr Kelly, his former wife,
and from a former colleague, James Byron. Mr Kelly described how following the
Gulf he became more and more withdrawn, had difficulty sleeping, and was sexually
impotent which put strain on his marriage. He also says that he began drinking
excessively. His former wife confirms that his problems, both physical and emotional,
put a strain on the marriage. It is noteworthy she says that he unburdened himself
to anyone who would listen. Mr Byron also considers that Mr Kelly was a very different
person when he returned from the Gulf, in that he was very introverted, weepy
and refused to talk about his experiences in the Gulf. He was short tempered and
appeared to have lost his sense of humour. Mr Byron also noticed that the Claimant’s
marriage had changed for the worse.
13.19 Conclusions
The
question of the Claimant’s condition between his return from the Gulf and his
discharge from the army has of course to be considered in the context of his pre-existing
condition. He had a long history of psychiatric disorder consisting mainly of
symptoms of anxiety and depression. Dr Kaplan accepts that his experiences in
the Gulf war had some impact on his psychological presentation. Dr Freeman considers
that they triggered a significant deterioration in his condition. He says that
there was a "…marked exacerbation of his psychological symptoms within
weeks if not days of his return from the Gulf", a conclusion that is
based upon the history given by the Claimant and the evidence from his former
wife and from Mr Byron. He says that the Claimant then "…met the criteria
for Generalised Anxiety Disorder, and subsequently a major depressive illness."
I am satisfied that the Claimant’s short term of service in the Gulf caused
a deterioration in his psychological condition, and that that is likely to have
contributed to the breakdown of his marriage. The question is therefore whether
his condition was detected, and if not, whether it should have been.
13.20 I
accept that there was a marked change in the Claimant following his return from
the Gulf war that was apparent to those to close to him, such as his wife and
colleagues such as Mr Byron. But as in many of the lead cases, the contemporaneous
evidence does not reveal any deterioration in his performance at work. On the
contrary it demonstrates that he was able to continue to function at a high level.
The annual report for November 1991 was in the most glowing terms. His application
for a return to the UK on compassionate grounds in May 1992 and the annual report
dated June 1992 confirmed that he had continued to discharge his duties in an
entirely satisfactory manner up until the crisis provoked by the breakdown of
his marriage. The Claimant does not suggest in his evidence that he raised his
problems with his superiors before that point. I am not persuaded that there was
any deterioration in his work such as to alert his superiors that he was suffering
from a psychiatric disorder.
13.21 The
Claimant saw the MO on two occasions in the immediate aftermath of his return
from the Gulf. The first was on 11 February, and the relevant note relates solely
to his injured ankle which was then still in plaster. The second was on 17 April
1991 when the MO noted that he was suffering from an anxiety state and "Long
chat/psychotherapy." That finding is consistent with Dr Freeman’s view
that the Claimant was suffering from a generalised anxiety disorder soon after
his return from the Gulf; and I am satisfied that a reasonable diagnosis was made
at the first opportunity. There is nothing to suggest that the MO made a connection
between his anxiety state and his service in the Gulf War. The relevant note appears
to relate the anxiety state to "work/family/a problem re RTA (road
traffic accident) 11/2 years ago." The Claimant had been involved
in a car crash in March 1990 in which both he and his daughter were injured. Following
the accident a Colonel Bencini had offered to refer the Claimant and his wife
to a stress therapist. They agreed, but the stress therapist was booked up; and
the Colonel offered instead to refer them to a psychiatrist. That would have necessitated
the Claimant’s CO being informed; and they therefore declined the offer. That
was no doubt the episode to which the note for 17 April related. Its significance
is that the Claimant appears to have been telling the MO about a particularly
stressful incident pre-dating the Gulf war, whereas there is no evidence to suggest
that he made any reference to traumatic experiences in the Gulf notwithstanding
that he was seeing the MO about the injury to his ankle sustained in the Gulf.
In those circumstances, and given his long history of psychological problems,
I do not consider that the MO was at fault in failing to make a connection between
his anxiety state and his service in the Gulf.
13.22 The
Claimant did not consult the MO again until May 1992, a few weeks after his wife
had left him. The central problem at that stage was the Claimant’s reaction to
the breakdown of his marriage. It is clear from the record of the consultations
in May and June 1992 that the MOs recognised the stress that he was under and
that he was depressed. Furthermore Dr Freeman does not suggest any failure in
detection at that point. His criticism is directed to what he regards as ineffective
intervention, an issue that falls outside the ambit of the trial of the lead cases.
13.23 There
is no evidence to suggest that the MOs who saw the Claimant on repeated occasions
in May/June 1992 made any connection between his service in the Gulf and either
his psychological condition or the breakdown of his marriage. In my judgement
they were not at fault in failing to do so. He had a long term history of anxiety
and depression. His term of service in the Gulf had been short lived and he had
not been directly engaged in operations against the Iraqis. There is no suggestion
in the evidence that he raised his experiences in the Gulf with the MOs. Over
fourteen months had elapsed since his return. Most importantly his marital problems
were of themselves an obvious explanation for his anxious and depressed state,
particularly when set in the context of his past medical history.
13.24 Accordingly
in my judgment the MoD are not to be criticised for failing to make the connection
between his service in the Gulf and his anxious and depressed state in the following
year in the aftermath of the breakdown of his marriage.
13.25 As
to the issue of culture Mr Kelly’s former wife confirms his evidence that he was
not prepared to see a psychiatrist in March of 1990 because "… he thought
that this would finish his career in the army." She adds that he told
her that "… he could not face treatment with the psychiatrist because
it would be too much emotional trauma." I accept their evidence. But
there are two other features of the evidence relevant to the issue of culture,
first that the Claimant was able to overcome any inhibitions that he may have
felt about raising psychological problems with the MO as is demonstrated by the
records for the late 1980’s; and secondly that he achieved promotion to the rank
of Staff Sergeant after he had first raised such problems.
14. DARREN
MARK LAMBERT
14.1 Darren
Lambert was born on 18 October 1971. He enlisted in the Royal Artillery
on 7 June 1988 and was discharged on 26 April 1992. On 2 January
1991 his unit, 23 Battery 27 Field Regiment, was deployed to the Gulf on Operation
Granby. Mr. Lambert was one of the nine man crew of an M109 self propelled gun.
He served in the Gulf until 31 March 1991.
14.2 The
ground war was short, lasting 100 hours from 25 to 28 February 1991. Prior to
the ground war the Claimant’s unit was involved in brief ‘hit and run’ attacks
on the Iraqi positions aimed at provoking the Iraqis to retaliate so that they
could be located and bombed by allied jets. In the course of the ground war his
unit was involved in active combat firing at enemy positions. In common with the
other members of the crew he took his turn in the observation turret. He also
had manually to collect ammunition from ammunition dumps, on occasions when allied
and Iraqi tanks were engaged in fighting in the vicinity.
14.3 It
is the Claimant’s case that in the course of the ground war he was exposed to
a number of stressors. Some have been put in issue by the evidence served on behalf
of the Defendant. But it is submitted on behalf of the Claimant that in the light
of the expert medical evidence it is not necessary to resolve such factual issues.
I agree. It is clear that in the course of the ground war the Claimant, in common
no doubt with other members of his crew, was in fear of his life, not least because
the M109 is relatively lightly armoured and vulnerable to attack.
14.4 The
claim was originally advanced on the basis that exposure to traumatic experiences
in the course of the ground war caused a post traumatic disorder. But that was
not supported by the Claimant’s expert evidence, and in consequence the Particulars
of Claim were re-amended to substitute the assertion that the Claimant’s exposure
to combat in the Gulf resulted in a Post Traumatic Disorder namely a depressive
illness. As to that, the issue between the medical experts is relatively narrow.
Both agree that Mr. Lambert has never suffered from PTSD. Dr Neal, who was instructed
by the MoD, considers that he has suffered two episodes of a depressive adjustment
disorder since the Gulf war, the first of which was related to his experiences
in the Gulf. Dr Daly, instructed on behalf of the Claimant, considers that Mr.
Lambert has experienced "… at least two episodes of a depressive illness
in between which he managed to function well, although was not, I believe asymptomatic."
There is little practical difference between the experts in their formulation
of the Claimant’s psychiatric condition. They are agreed that in the period between
his return from the Gulf and his discharge from the army, he was suffering from
a condition falling within the definition of a PTD. That being so I agree with
counsel for the Claimant that the precise diagnosis is an issue that need not
be resolved given the limited scope of the trial of the lead cases.
14.5 On
29 August 1991, five months after his return from Operation Granby,
the Claimant was caught in possession of cannabis. On 18 September
1991 the MO used the F Med 8 procedure to arrange for him to be seen by a community
psychiatric nurse having made a provisional diagnosis of "PTSD + /- bereavement
reaction". He was duly seen by a CPN, and on 21 February 1992
by Captain Bisson, a senior specialist in psychiatry and Captain Pritchard, a
general practitioner trainee in psychiatry. It is not alleged either that the
Defendant was in breach of its duty to the Claimant with regard to the steps taken
following his referral to the CPN, or in relation to the diagnosis made and treatment
prescribed by Captain Bisson and Captain Pritchard. Accordingly the issue between
the parties so far as the Generic Issue of Detection is concerned is very narrow,
namely whether the Claimant’s condition should have been detected prior to his
referral to the MO following his arrest. The further allegation that there a negligent
delay in his referral to a CPN or psychiatrist following the detection of a psychiatric
disorder on 18 September, falls outside the agreed ambit of the trial of the lead
cases.
14.6 The
Service Records
The
Claimant returned from Operation Granby on 31 March 1991. According to his witness
statement he was given three weeks leave about a month after his return to Germany.
There are no relevant entries in his service record as the annual report dated
10 July 1991 referred to the year ending 1 March 1991. His army medical
records note that immediately after his arrest he was examined and found to be
fit for detention. The record of the interview in relation to the drugs charge
on 31 August 1991 said –
"He
further stated that he had smoked drugs prior to being deployed to the Gulf. Since
returning from the Gulf the frequency of smoking drugs has increased."
14.7 On
3 September his troop commander, 2nd Lieutenant Fraser wrote to the
Claimant’s parents in the following terms -
"3rd
September 1991
"Letter
to Lambert’s mother and step-father from 2nd Lt Fraser:
"Dear
Mr and Mrs David
Firstly
I must introduce myself. I am Darren’s Troop Commander and therefore take a close
interest in his work and well being. As I am sure you are now aware, due to a
drug related incident he is now being held in close arrest by the Regiment pending
court martial proceedings.
I
am able to visit him every day or whenever he requests my presence, and can assure
you that his condition and welfare are of the a high standard, and he is being
treated properly whilst under detention.
I
spent the weekend with him after his initial arrest and during questioning at
his own request, to oversee proceedings. He has maintained a very co-operative
manner throughout as have the other soldiers under arrest with him.
Darren
was under my command during the Gulf War, so we understand each other well. He
has no worries about talking to me, almost as a friend.
I
hope this letter has made you feel a little more aware of what is happening, and
reassured you that he is being well looked after.
If
you have any questions or worries, please do not hesitate to contact me at the
above address or telephone number."
14.8 On
11 September 1991 he was seen by the MO (Lieutenant Colonel Wells) at the request
of the CO. She noted -
"Interviewed
at request of CO ... Being investigated for smoking Cannabis about twice a week
over past four months. Indecisive, confused. Alcohol up to 6 beers Saturday and
Sunday, increase now. Expecting 6 months at Colchester. Sleeping OK, eating. Sad
about perhaps when children being fatherless by his actions. ... Let down by his
circumstances. Disappointed, not depressed. Arrange review 1 week with diary."
14.9 Lieutenant
Colonel Wells saw him again on 18 September when she made the following note -
"Still
feels he is missing something. Crying a lot. Relates to Dad dying. Gets drunk
at weekends to make him smile. Can cope he thinks. Feels he’s not getting anywhere.
Can’t formulate ideas. Nightmares. Bit tearful today. Arrange CPN Psych FMed 8."
She
then wrote a letter of referral to the community psychiatric nurse. It read as
follows -
"Interviewed
at CO’s request last week ... For drugs charges. Referred because he still feels
he is "still missing something + (it isn’t Cannabis)?" Crying a lot.
Gets drunk at weekends to feel happy. Can cope. Not suicidal. Admits to Cannabis
twice a week for 4 months. Six beers at weekends and more now. Feels indecisive
and confused. Expecting six months in Colchester. ... Father died when he was
about 12/13. He feels a father to his brother (18) whom he has let down by drug
charges. Feels guilty about leaving Iraqi children fatherless because he helped
to fire guns in the war. ... Denies suicidal ideas. Feels he is not getting anywhere
at present. Cannot formulate ideas. Bit tearful today. Please see. Diagnosis -
? PTSD +/- bereavement reaction."
14.10 On
24 December 1991 the Claimant went absent without leave for a period of seven
days. He says in his witness statement that he did so because of fear that he
would be sentenced to detention in Colchester at his impending court marshal.
He was sentenced to eight days detention for going AWOL.
14.11 On
11January 1992 there was a further entry in the GP notes -
"Has had
psychological problems in the past. Diagnosed as PTSD. Seeing CPN at BMH. Absent
without leave for 6 days. Says he couldn’t take any more. Awaiting charge for
drug offences. Cannabis and 1 x whiz. no intravenous. Sleeps well, appetite good,
no suicidal ideas, not clinically depressed. No more nightmares. ..."
14.12 On
14 January 1992 there was an entry "To CPN", and on 21 January
1992 "CPN on course for further two weeks. No better…CPN" On
the following day the GP wrote to the CPN -
"...
This young man is already on your books. He is still much the same and has recently
served a sentence for I think being AWOL. He is still awaiting Court Martial for
his drugs offence. Having seen him for a couple of times last week I feel he is
depressed. Please can you see him soon after you return from your course? ...
I have told him that I will update you on his condition."
14.13 On
6 February 1992 the CPN wrote in reply that the Claimant was now being seen by
Captain Pritchard at the psychiatric outpatients department and that further CPN
involvement was not felt to be necessary at that point.
14.14 On
21 February 1992 Captain Bisson and Captain Pritchard wrote to the GP in the following
terms -
"This
20 year old man was reviewed in the out-patient department today.. He gives a
history of feeling empty and thinks that he may be depressed. He is currently
pending a number of drugs charges regarding his Cannabis use. He is anticipating
six months at the MCTC and then discharge from the Army. At initial interview
he said he felt low and empty. He describes poor concentration and having a poor
memory. He has some feelings of anger towards individuals for no apparent reason
and is often quite irritable. He has no suicidal ideation and no thoughts of deliberate
self harm. He does though have a poor appetite and wonders whether he may have
lost some weight. He has a poor sleep pattern and often wakes up between 6-7 in
the morning. He describes a number of feelings of guilt with regard to the Gulf.
...
He was part of a gang. He also truanted. He nevertheless obtained 7 GCSEs. At
the age of 14 he performed 10 burglaries. He was only prosecuted for 6 and received
a suspended sentence. ... He was posted to BAOR in August 1990. ...
He
signed off from the Army in October 1991 and is due to leave in October 1992.
He was a Gunner in the Gulf and can remember one particular episode of being extremely
scared, when there was a threat of tank contact. He remembers driving through
damaged Iraqi troop positions and was appalled at the damage the Allies had inflicted.
He felt that this reality of war was quite staggering. He denies any nightmares,
dreams or flashbacks. He feels profoundly guilty about his whole experience and
yet was proud of being a part of the British Army. He thinks that he has changed
since the Gulf and remembers drinking quite considerable quantities of alcohol
upon his initial return from the experience. He thinks that everything that has
happened to him happened since his Gulf experience. ...
Smokes
20 a day. No medication. Now drinks very little alcohol. He admits to illicit
drug use. He had his first two experiences prior to the Gulf for pure interest.
This consisted of smoking two joints. As mentioned previously, he initially drank
heavily for three months upon return from the Gulf. He then switched to cannabis
as it was cheaper and better. He is now smoking a joint most days and usually
out of camp. This does not make him feel better but it helps him forget things.
He has been caught three times by SIB. He is pending prosecution for only two
occasions. He admits to experimenting with amphetamines and ecstasy, although
currently he has not used them. ... He thinks that he worries about things, yet
previously he was a confident person. He also quite clearly describes feelings
of irritability and anger often over trivial matters. ...
His
speech and behaviour were normal. He described his mood as empty. His affect was
appropriate. He described no suicidal ideation. I could elicit no abnormal thoughts
or beliefs. Insight: he thought that his problems "may be related to the
Gulf, maybe my father’s death, I don’t know". ...
My
impression was that this was a 20 year old man who described elements of Post
Traumatic Stress Disorder related to his experiences in the Gulf. He is almost
certainly experiencing an adjustment reaction to the drug charges and his potential
future that is all pending. I also feel to a certain extent that he has an unresolved
bereavement reaction to his father’s death. I intend to see him again on the 13th
March for review. In the meantime he is to write an essay describing his Gulf
experiences, detailing his thoughts and feelings and what actually happened. He
will also write a letter to his father to say goodbye."
14.15 On
13 March 1992 the Claimant was seen again by Captain Pritchard who wrote to the
GP -
"I
saw this young man again today in the Psychiatric Out-Patients. Unfortunately
he was unable to write his letters. He found it far too difficult to concentrate
on either of them. He claimed that he didn’t know how to start and he didn’t really
know what to say to his father. He described still feeling low and he now thinks
that he is depressed. He continues to have poor appetite and sleep pattern. He
has had no further thoughts of self harm and has no intentions regarding suicide.
I felt that on this interview he is beginning to tie in his experiences in the
Gulf with the way that he is feeling now. I intend to see him again on the 18th
March. He will produce a plan for both letters and hopefully will produce a tape
recording of this ...."
14.16 Captain
Bisson concurred with Captain Pritchard’s approach. On 18 March the Claimant faced
his court marshal for the possession of cannabis and was sentenced to 60 days
detention. The written plea in mitigation made by the Captain who represented
him, a copy of which is preserved in his service record, said inter alia -
"As
a member of 23 Bty Gnr Lambert was employed as a gun layer during the Bty’s service
in the Gulf and is very proud of the part he played. His number one thought very
highly of him. On his return from Operation Granby he became disillusioned with
soldiering in BAOR. He is now seeing the psychiatrist and is suspected to be suffering
from post traumatic stress disorder."
14.17 He
served his detention at Colchester and upon its completion was discharged from
the army. His discharge PULHEEMS was normal. On the 15 April 1992, eleven days
before his discharge, the Claimant was seen by Major McRae, a Senior Specialist
in Psychiatry. In his comprehensive note to the referring MO, Major McRae recorded
that upon discharge the claimant was to return to his family on the Isle of Wight
where he had a job waiting for him with his stepfather, and that he had urged
him to register with a GP and to seek further specialist advice should he feel
it necessary in future. The F Med 133, the medical summary intended to be handed
to the civilian GP following discharge, dated 23 April 1992 made reference
to the Claimant having suffered "…elements of PTSD and adjustment reaction
to disciplinary procedures...".
14.18 The
Witness Statements
The
Claimant says that on his return from the Gulf he had trouble sleeping and that
a month or so after his return his sleep disturbances had become so bad that he
resorted to cannabis. He says that he also had resort to alcohol and often got
drunk at the weekends. His mother gives evidence as to the change in his personality
following the Gulf, but is understandably imprecise as to when it occurred. She
says -
"Shortly
after his return to (sic) the Gulf he spent a period of leave at home. I cannot
now exactly recall whether it was on this specific occasion or whether it was
over a number of occasions when he was on leave in the following months or years
but I recognised a dramatic change in Darren’s personality. "
14.19 His
former girlfriend, Ms Towle, gives evidence that their relationship broke down
only three weeks after his return from the Gulf; although as I understand her
statement she was not living with him in Germany, and must therefore be referring
to the period of home leave in May 1991. His friend, Mark Jones, also gives evidence
as to a change in personality, but like the Claimant’s mother is unable to be
specific as to when it occurred. In short the evidence of his relations and friends
does not assist on the issue of whether his condition ought to have been detected
prior to his arrest on 31 August.
14.20 The
MoD have served statements from three men who served with him in the Gulf and
can also speak as to his condition in the immediate aftermath of the Gulf war.
Bombardier Thomas Christie was the Claimant’s direct commander. He says that he
knew and worked with him before, during and after the Gulf war. His evidence is
that after the return to Germany –
"Lambert
seemed little different from before. The only change I recall was that he seemed
to socialise more with the group I mentioned earlier. He certainly did not appear
down, or introverted, nor otherwise behaved out of character. He got on with his
job fine. He certainly never mentioned being upset by the Gulf. I never heard
about any problems with his sleeping…."
14.21 Robert
Nash served as an NCO in the Claimant’s M109 gun during the Gulf war and also
worked with him both before and after the conflict. He gives very similar evidence
saying that he cannot recall any particular change in the Claimant after the Gulf
war. Nor does he recall the Claimant mentioning being troubled by his experiences
in the Gulf. He says that "If anything, he appeared to gain confidence…".
The evidence of the third of the witnesses, Sergeant Sherman, who commanded
the other gun making up the section in which the Claimant served, does not take
the matter any further as he has no recollection of seeing anything of the Claimant
after the Gulf war. The MoD also served statements from Lieutenant Colonel Wells
and 2nd Lieutenant Fraser, who have since been promoted to Colonel
and Major respectively. Colonel Wells does not add anything of note to her contemporaneous
notes. Major Fraser says that he does not remember noticing any deterioration
in the Claimant’s mental state after the return from the Gulf, expresses disappointment
at the Claimant’s involvement with the German police, and says that he tried unsuccessfully
to discourage the Claimant from leaving the army.
14.22 The
Expert Evidence
Dr
Daly observes that the change in the Claimant’s behaviour is noted in the military
medical records both when he was assessed by the military psychiatrists, and by
Captain Wright when writing in mitigation at the time of the court marshal. He
goes on to say -
"…the
apparent change in Mr. Lambert’s behaviour, after the Gulf war as compared to
before the Gulf war, should have indicated the very real possibility that this
was a manifestation of post traumatic disorder. Such a connection with his combat
in the Gulf war does not appear to have been made."
14.23 But
he does not relate that view to the period with which I am concerned, namely the
period between the return from the Gulf and the Claimant’s arrest at the end of
August. Dr Neal does not suggest that there was any culpable want of care on the
part of the MoD during this period.
14.24 Conclusion
In
my judgement there was nothing to alert the Claimant’s superiors to a psychiatric
problem prior to his arrest at the end of August 1991. Following his arrest he
was rapidly referred by his CO to the MO, who considered the possibility that
he was suffering from PTSD, and took the appropriate steps by referring him to
a community psychiatric nurse under the F Med 8 procedure. In due course he was
referred to psychiatrists. In short the evidence demonstrates that the possibility
that he was suffering from a psychiatric condition related to his service in the
Gulf was detected promptly and investigated appropriately.
14.25 There
is a further strand to the claimant’s case on detection. It is submitted that
had there been a proper system of briefing and debriefing as to the effects of
trauma in combat, the Claimant would have reported his condition shortly after
his return from the Gulf war. It is the Defendant’s pleaded case that the Claimant
was "…given training about the psychological consequences of combat"
both as part of First Aid training (presumably the battle shock component
of ADT5) and as a specific briefing following deployment to the Gulf. The Claimant
has given varying accounts of the instruction that he received on the psychological
effects of war. In his witness statement he says that the only reference ever
made to the issue was a first aid talk in Germany when the group was told about
‘shell shock’, which he interpreted as the effects of a physical shock wave. He
was questioned on the subject by each of the expert witnesses. Dr Daly says that
the Claimant told him that he had been given training before deployment in the
Gulf as to what to do if he "…saw someone really spaced out." but
that nothing was said about symptoms when you return home. He agreed with Dr Daly
that it was possible that he had forgotten what instruction he had received. He
told Dr Neal that he could recall a brief discussion about the psychological consequences
of combat as part of a first aid training course and that prior to going over
the line into Iraq a brigadier "…briefly mentioned to them about mental
preparation for possible psychological problems after combat." But he
added that he and his colleagues were uninterested in briefings about the psychological
consequences of combat because they were focused on the task in hand and were
more concerned about their physical survival.
14.26 The
Claimant’s evidence illustrates the problem of briefing soldiers as to the psychological
consequences of combat, a point developed in the closing submissions on the generic
issues submitted on behalf of the MoD. It is an issue to which I shall return
when addressing the generic issues of briefing and debriefing. But I accept for
present purposes that it is likely that the Claimant would have approached the
MO for assistance on becoming symptomatic if the importance of doing so had been
made clear to him by his superiors.
14.27 Culture
As
counsel for Claimant acknowledge in their written submissions, the evidence bearing
on the issue of culture is sparse in this case. It does not advance the generic
case made by the Claimants. It simply demonstrates that by the time of the Gulf
war the medical officer who saw the Claimant was alive to the possibility of PTSD.
As she says in her evidence -
"Whilst
the troops were in the Gulf I attended a weekend seminar at Church House organised
for all the welfare agencies… in preparation for the casualties which is was expected
would be suffered from the ground war. This addressed aspects of grief and trauma."
15. SUKHINDER
SINGH DEO
15.1 Sukhinder
Singh Deo was born on 10 October 1950. On 13 August 1970 he enlisted
in the Royal Army Medical Corps and served a full term of twenty two years, leaving
the army on 2 September 1992 having attained the rank of Staff Sergeant. In the
course of his army career the Claimant served in both Operation Corporate and
Operation Granby.
15.2 In
Operation Corporate the Claimant was part of 16 Field Ambulance which was deployed
in support of 5 Brigade. He was assigned to a section attached to the rear echelon
of the Scots Guards. He was at Ajax Bay when the Sir Galahad was bombed and witnessed
the immediate aftermath. He subsequently learnt that three members of the RAMC
well known to him lost their lives in the attack on the Sir Galahad. He was with
the Scots Guards in the battle for Mount Tumbledown. In Operation Granby he was
attached to 33 Field Hospital at Al Jubayl, but suffered a fit shortly before
the commencement of the land war, and was ‘casevaced’ back to the United Kingdom.
15.3 The
Claimant’s case is that he suffered an acute stress reaction in the course of
the Falklands war. It is submitted on his behalf that the evidence from those
who served with him in the Falklands is descriptive of "classical battle
shock" with "frank breakdown in functions." It is submitted
that the evidence then demonstrates that he developed a post traumatic disorder
"alternating between physical somatic symptoms (especially pseudo-seizures
and headaches, with irritability) and frank symptoms of PTSD." Since
he left the army his condition has deteriorated markedly, with a diagnosis of
PTSD being made in 1994. In 1996 he was awarded a war pension for PTSD with a
disability assessed at 70% and re assessed in 1998 at 90%.
15.4 The
Defendant’s case is that Claimant did not suffer from significant trauma-related
symptoms between 1982 and 1992. It is accepted that he developed a depressive
illness in around 1991. But the Defendant contends that such illness is to be
attributed to his physical problems, "likely to have been pseudo-seizures",
and concern for his future after leaving the army. It is conceded by Dr O’Brien
that "He appears to have developed overt PTSD in 1994", but
he challenges the view of the Claimant’s experts that there is a direct causal
relationship between the Claimant’s experiences in the Falklands and the symptomatology
that presented in 1994. The second of the experts instructed by the MoD, Professor
Trimble, expresses an even more sceptical view. He says in his supplementary report
-
"The
question is whether somebody that trots to all of the psychiatric symptoms that
Mr. Deo does, has a post traumatic stress disorder caused by specific or a number
of specific psychological events, or whether it is a diagnosis which has been
iatrogenically and legally created over a period of time. I have expressed puzzlement
that this man should have developed such apparently severe symptoms after such
a period of time. As Dr Deahl reinforces, the diagnosis was not made until 1994,
and this was "particularly surprising". One interpretation of this is
that he was not suffering from post traumatic stress disorder at all. "
15.5 In
view of the fundamental difference of opinion between the experts as to the nature
of the Claimants condition between his return from the Falklands and his eventual
discharge ten years later, the first question is whether it is possible to draw
conclusions from the evidence on those issues that bear on the generic issues
of either detection or culture.
15.6 As
to detection counsel for the Claimant invites me to proceed by addressing four
issues. First they invite me to determine "On the balance of probabilities
whether the admitted (pace Prof Trimble) PTSD symptoms since 1994 are to be attributed
to the Falklands or not. They submit that resolution of that issue will provide
…"some form of platform…for the rest of the case.". Secondly they
invite me to consider whether the Claimant suffered a relevant condition in the
period from late 1992 to 1994. Again they emphasize that resolving the first issue
is a necessary prerequisite to addressing the second. Thirdly they invite me to
consider the evidence for the occurrence of the ‘fits’ which the Claimant appears
to have suffered on a number of occasions. The relevance of such evidence is that
if the Claimant was in fact suffering from a post traumatic disorder between 1992
and 1994, then it is argued that such fits were somatic and were a manifestation
of his psychiatric condition which could and should have been revealed had they
been properly investigated. Fourthly they invite me " to consider the
evidence for PTD generally."
15.7 Counsel
for the Claimant were right to emphasize that resolution of the first issue is
critical. The question is therefore whether I am in a position fairly to resolve
this issue within the agreed format of the trial of the lead cases. The issue
is highly contentious. It has to be set against a lengthy and extremely complex
medical history. Furthermore there is a critical issue of credibility in relation
to the Claimant’s assertion that he told army doctors, Major Morris in 1983, and
Brigadier Ratcliffe and Major McCrae in 1991, that his symptoms were attributable
to his experiences in the Falklands.
15.8 After
careful consideration I have come to the conclusion that I cannot fairly resolve
the first of the issues identified by counsel for the Claimant without hearing
oral evidence from both factual and expert witnesses. Given that its resolution
is critical to the resolution of the remaining issues, it follows that in this
case I am unable to resolve the issues relevant to detection on paper. In those
circumstances it would not be appropriate to attempt to draw any conclusions relevant
to the generic issue of culture.
16. GARY
JOHN OWEN
16.1 Gary
Owen was born on 31 May 1972. On 8 May 1990 he enlisted in the Queen’s Lancashire
Regiment and served as a private until his discharge on the 16th October 1996.
In the course of his service he undertook five tours of duty in Northern Ireland,
and a tour of duty in Bosnia in 1993 as part of the UN Force.
16.2 There
are two principal strands to the Claimant’s pleaded case. Both are relevant to
the generic issues of detection and culture. The first is the issue of screening
at recruitment. It is asserted that at the time of his enlistment the Claimant
was already suffering from PTSD as a result of his childhood experiences, and
that in consequence he was abnormally vulnerable to further psychological trauma.
It is alleged that the Defendant was negligent in failing to detect his condition
at enlistment; and that he ought not to have been recruited, alternatively ought
not to have been deployed on tours of active duty.
16.3 Secondly
the Claimant asserts that his psychological condition began to deteriorate following
his second tour of duty in Northern Ireland when he became withdrawn and began
to drink more than previously; and that following his return from Bosnia, his
condition deteriorated further when he began to suffer from nightmares and flashbacks
related to scenes to which he had been exposed in Bosnia, and resorted to heavy
drinking in an attempt to alleviate his distress.
16.4 It
is the Claimant’s case (per para 6(f) of the Amended Particulars of Claim) that
the Defendant was negligent in failing to elicit or heed that –
"(i)
The Claimant had suffered serious sexual, physical and emotional abuse in childhood.
(ii)
He spent much of his childhood in the care of the Local Authority and has a history
of epilepsy, behaviour disturbance, educational failure and nocturnal enuresis.
(iii)
He had been seen by a Child Psychiatrist and had required placement in a special
school."
16.5 On
the information now available there is no doubt that Mr. Owen underwent the most
horrific experiences as a child, experiences that have caused serious and long
term psychological problems. But it was not until 1996 that he revealed that he
had been the victim of very serious and sustained physical and sexual abuse by
his father. He made that revelation in the course of the investigation of his
mental health that followed his arrest for an offence of violence committed on
his infant son. In 1997 his father was convicted of a series of offences arising
out of his abuse of the Claimant and sentenced to ten years imprisonment.
16.6 It
appears that in early 1989 the Claimant applied for entry into the Junior Leaders.
He was given a medical examination by a Doctor Lomax which was apparently due
to take place on 16 January 1989, but was then deferred until 20 October 1989.
Dr Lomax noted under question 33 ("Epilepsy, fits or faints"):
"was on Epilin until age 6. Nil since age 10", and his manuscript
summary (Box 48) reads -
"No
fits since age 6
No
bedwetting since age 10 – went to special school
Arguing
at home"
16.7 The
Claimant alleges that he told Dr Lomax of his persistent enuresis and behavioural
outbursts, and that he had continued to suffer epileptic fits until late adolescence.
If the Claimant is right, Dr Lomax note is inaccurate in a number of important
respects. But in my judgment it is highly improbable that Dr Lomas made a note
that did not reflect what he had been told by the Claimant. I do not regard the
Claimant’s evidence on this point as reliable, and accept that the contemporaneous
document is an accurate record of what Dr Lomax was told.
16.8 On
10 September 1989 the Claimant completed an application form for entry into the
regular Army in the November 1989 intake. Parts of the form were subsequently
completed on various dates by the Army Recruiter, S/Sgt Stanley, Army Careers
Officer Lt Col Duxbury and Personnel Selection Officer Scott. There are a number
of material entries.
"Recruiter’s
notes
Mother:
divorced 10 years. Boyfriend… alcoholic Physical abuse... still sees mum
Father:
no contact since 13 years old
Support:
good
Relationship:
good
School:
no trouble. No truancy.
Examination
Results
English
‘C’; Maths ‘B’; Geography ‘F’; T.D ‘D’
Crime/Pol
Theft
270589 120 hrs Community Service
Report
by Army Recruiter - S/Sgt Stanley (26.10.89)
A
young man who attended interview scruffily dressed in casual clothes. Gary has
not had the happiest of home life. Parents divorced 7 years ago, Gary was rejected
by both parents. He wanted to live with his father… father refused to take him
and mother placed him into a Special Boarding School. He remained in special schools
for all his secondary schooling… He states 4 CSE exams taken, above average results
obtained, but can offer no proof. Certainly not born out by his AET score.
On
leaving school moved back with his mother until mother’s boyfriend moved in. The
end result was that Gary was thrown out to live rough… now in voluntary care,
and living with temporary foster parents…
Both
brothers are serving members of HM forces, and he would like to follow in their
footsteps… No police trouble…
I
feel that Gary deserves a chance, and I recommend him…
Recommendation
by Army Careers Officer - Lt Col Duxbury (30.10.89)
A
very likeable lad who I feel will find the army a [..illegible] existence in comparison
with […] of his […] life. He has two brothers in the Army, both of whom have told
him of the life style… I consider him to be a good candidate and recommend him
for his choice.
Personnel
Selection Officer’s Report
…a
pleasant personality and can express himself quite openly and clearly. He has
had a rough upbringing in the form of his parents divorcing 10 years ago, he was
sent to residential schools because his mother could not cope with all the children.
When he left school and returned home he walked straight into trouble in the form
of his mother’s boyfriend who was an alcoholic and would beat him and his brother
and throw them out on the street regularly. After one occasion of living rough
for 3 weeks he ended up in trouble with the police and appearing in court which
resulted in him being placed with foster parents where he is now settled and enjoying
life. He sees his mother regularly but has had no contact with his real father
for 5 years…
I
feel he will make a go of the Army, he is certainly physically capable of basic
training."
16.9 Contained
within the pages of the above form is what appears to be a separate and subsequent
report by an Army Recruiter dated 5 December 1989-
"Gary
attended APSC [Army Personnel Selection Centre] on 22.11.89. At APSC he
declared previous undisclosed convictions that made him ineligible… however he
was allocated Kings 010190. I called at Gary’s home on 041289 to inform him of
the bad news, and I was informed by his father that Gary did not disclose the
conviction on the advice of the Welfare Officer (incorrectly) under the Rehab
Act. On 051289 I asked Major Dow from APSC if it was possible for Gary to have
a postal application after April 90 when the new intake dates are known… Before
the docs are sent to APSC he should be re-interviewed both by a recruiter and
the APO for change in circumstances paying particular attention to the pregnant
girlfriend (see PSO report)"
16.10 On
24 April 1990 the Claimant completed a further form for entry in the May 1990
intake. It contains the following entries –
"Recruiter’s
notes
Section
2.1: parents. Father still living: not seen since 1982
Section
3: 2 brothers both in Army
Section
7: Upbringing. Question a: "By whom were you brought up? Mother - was on
Vol care order for a year"
Interviewing
Officer’s Notes
Foster
care 1 year. Back Mum 2/3 weeks… Vl care 1 yr. M-OK… Fam – OK… Resident school
– 10 yr old – Mum couldn’t cope
Examination
Results 5 GCSE’s
Interviewing
Officer’s Notes
Age
16. Court 27.5.89. Theft – 120 hours C Service. Sleeping rough kicked out … rough
2/3 weeks
Report
by Army Recruiter - WO2 Perry (24.4.90)
Gary
was smartly dressed for the interview. He attended APSC on 27 Nov 89 and was allocated
Kings Dn 070190 incorrectly as he had an outstanding waiting period of one year.
The NCO would not consider a 203 to the CRLS because he had blatantly lied about
it. There was at the time a pregnant girlfriend, this turned out to be incorrect
and to date the girl is living with the true father of the baby. He was under
Vol Care order at the time, since then he has moved back with his mother and the
care order was revoked 180490. To date he works in a fast food restaurant in Warrington
market. He wants Kings Dn intake 270590 (the date his waiting period is up). To
make this date a 203 from the CRLS would be required for enlistment.
Interviewing
officer’s report - Capt Mepnam (2.5.90)
…He
now lives with mum and step dad and sister in 3 bedroom semi. Has 2 brothers in
army. Parents divorced 10 years ago. Mum could not cope & put him in residential
school where he stayed until age 16. Mum remarried 4 years ago. S/Dad is alcoholic
and he has not always got on with him. Last year he was kicked out of family home
and lived rough for 3 weeks. During this time he was taken to court and lived
with foster parents for 1 yr on voluntary care order. Has recently returned home.
He has no home worries & family support enlistment. No current girlfriend
and no children…
Has
GCSE from school – certs not seen – 1xB, 1xC,1xD, 2xE …
Has
1 police contact – waiting period not yet finished….
No
health problems or phobias..
He
was polite, pleasant and talkative. He appears self-reliant and confident with
some maturity. Appears to have some spark & go, is alert & expresses himself
adequately. He appears to have coped with a very disruptive upbringing and not
been affected by it.
I
accept him for enlistment, he appears motivated & keen despite being rejected
on 2 occasions – tests & waiting period."
16.11 My
attention has also been directed to a report from the Claimant’s head teacher
at Brook Farm School dated 10.1.89. It does not appear in the Claimant’s army
records, and was found within the records maintained by the Cheshire County Council.
It contains the following passage –
"
Gary’s behaviour in his last year was extremely foolish and immature reflecting
to a certain extent problems arising from home. Though Mrs Owen was always very
supportive towards the school. Gary absconded several times, bullied other younger
and weaker children so much that I did suggest he left school earlier than May
88 to give us some respite.
His
only interests were games – he was of average ability in football and cricket.
He
was not the most honest or reliable of students.
Unless
there has been a noticeable change in attitudes and behaviour I could not recommend
him."
The
report was plainly directed to the army. I am satisfied that it was probably seen
by those responsible for recruiting the Claimant although a copy does not survive
in his files. But it has to be seen in the context of two positive character references
dated October 1989.
16.13 Conclusion
In
my judgment the evidence does not demonstrate a culpable want of care on the part
of the Defendant in relation to the Claimant’s recruitment. The extracts from
the records set out above show that those responsible for his recruitment undertook
a thorough enquiry into his background. He did not tell them about his history
of abuse; nor did he volunteer the information that he had been seen by a child
psychiatrist. I am satisfied that they were entitled to accept what he told Dr
Lomax, namely that he had suffered no fits since aged 6, nor bed wetting since
age 10. They were aware that he had had a disturbed childhood, but concluded that
he had not been affected by it, and that he would "…make a go of the army"
That was a valid judgment on the information available to them.
16.14 I
am not persuaded either that the information that was elicited ought to have provoked
a psychiatric assessment, or that he ought not to have been recruited. Nor am
I persuaded that having been recruited, he ought not to have been deployed on
tours of active duty.
16.15 Bosnia
and its aftermath
The
Claimant served in Bosnia from 12 May 1993 to 5 November 1993 with
one short period of leave in the United Kingdom. He was one of a small number
of members of his regiment attached to the Prince of Wales Own Regiment, and was
based initially at Vitez and subsequently at Tuzla. He served as a member of the
crew of a Warrior Armoured Personnel Carrier.
16.16 Although
there is some issue as to the precise nature of his experiences, there is no doubt
that in common with other members of his unit he was exposed to deeply distressing
sights. As Major Walker, who served in Bosnia as a Community Psychiatric Nurse,
puts it "In Bosnia we witnessed atrocities on a daily basis".
In particular there was an occasion when his unit investigated a report of ethnic
cleansing in the village of Stupni Do, where a number of dead bodies were found.
The Claimant, together within other members of his unit’ entered an underground
cold store where they found the bodies of a grand mother, mother, and daughter
whose throats had been cut and an attempt made to burn their bodies. It is not
necessary for present purposes to resolve the issues between the parties as to
the precise nature of the horrors to which Mr. Owen was exposed.
16.17 On
23 January, some 14 months after his return from Bosnia, the Claimant saw the
MO, Dr Palmer, who referred him to a CPN, and on 30 March 1995 he was seen by
Brigadier Wickenden, the consultant psychiatrist, who made a diagnosis of "Depressive
reaction secondary to alcohol abuse and military stress reaction to service in
Bosnia." Brigadier Wickenden saw the Claimant on a further three occasions
in the spring of 1995. It is alleged that he treated him negligently; but resolution
of that issue also falls outside the ambit of this trial.
16.18 Accordingly
the question to be resolved in relation to the generic issue of detection is whether
the Claimant’s psychiatric disorder ought to have been detected at an earlier
point in the period of fourteen months that elapsed between his return from Bosnia
and his examination by Dr Palmer in January 1995 which led to his being seen by
Brigadier Wickenden.
16.19 It
is submitted on behalf of the Claimant that there was inordinate delay in the
identification of his problem. It is submitted that the evidence shows that he
resorted to very heavy use of alcohol almost immediately after his return from
Bosnia, and that his abuse of alcohol ought to have been detected and investigated.
Secondly it is submitted that when seen by MOs on a number of occasions during
that period in relation to physical injuries sustained in assaults upon him, a
proper investigation would have revealed both the problem of alcohol abuse, and
that it was related to his experiences in Bosnia.
16.20 There
are in essence three limbs to the Defendant’s case; first that his problem of
alcohol abuse pre-dated his tour of duty in Bosnia; secondly that when he attended
the MO there was nothing to suggest psychological difficulties or symptoms that
ought to have been recognized as being associated with serious alcohol abuse;
and that there is no evidence to suggest that his performance at work deteriorated
during the relevant period.
16.21 The
Service and Medical records
On
22 November 1993 the following entry appears in the Claimant’s F Med 4 -
"115
Sat 20.11.93 Walking back from town; past Woolwich bat; heard glass breaking (saw
6 people); people stared didn’t say anything, just as walked past but behind ..heard
glass break.
Was
pushed from behind, started to run off, had feet swept from under him, remaining
5 caught up with him, holding legs down, remaining bloke moved… [illegible] from
behind by glass; laceration…"".
16.22 On
28 January 1994 the Claimant was again assaulted outside a Berlin nightclub. The
entry in the F Med 4 reads -
"Review
following injuries last night.
5
sutures to head; 8 to arm…
Hit
by bouncer at Europa Centre with baseball bat in head. Was intoxicated ? (5 –
6 beers) – KO’d. Taken to a German KH / Sutured… discharged at 3-4am with RMPs
and Supervision in Guard Room. Now fully alert/bright/animated. CNS NAD (Headache)…
No evidence serious head injury. Smells of alcohol still."
16.23 On
9 February 1994 the Claimant again saw the MO complaining that he had been assaulted
and that he had suffered bruising to his right eye.
16.24 On
16 August 1994 the Claimant left Berlin and was posted to Tidworth. On 12 September
1994 he went AWOL for ten days and was sentenced to fourteen days detention. On
15 October 1994 he was seen by an MO complaining of a headache, vomiting, abdominal
pain and a sore throat. Two days later on 18 October, he was admitted
to the medical reception station. The F Med 4 contains the following entry –
"Diagnosis:
Pharyngitis and vomiting
Vomiting
settled with Prochlorperazine
Pharyngitis
resolved on soluble Aspirin"
16.25 On
8 November 1994 he was again seen by an MO complaining of headaches and a cough.
On 5 December 1994 he applied to live outside the camp with his girlfriend.
The application was approved, his platoon commander commenting that he was a "reliable"
soldier and his CO stating that he was a "conscientious and reliable
soldier."
16.26 On
20 January 1995 the Claimant saw Dr Palmer whose manuscript note simply refers
to an inversion injury to his left ankle. But the Claimant says that he told Dr
Palmer that he was not sleeping, was having nightmares and was drinking heavily.
The computerised record of Dr Palmer’s note reads –
"Returned
from Bosnia 14 months ago, since then nightmares of his time out there, drinks
up to 80 units per week, smoke 20/day, irritable and has been aggressive towards
spouse. On one occasion about six months ago tought [sic] about suicide but not
in detail. Appetite and sleep alright."
16.27 On
23 January 1995 Dr Palmer wrote a referral letter to the CPN at the medical reception
station in Tidworth saying -
"This
22 year old soldier was in Bosnia approximately 14 months ago. Since then he has
been having nightmares of his time out there. He has become quite aggressive with
his spouse. He is drinking up to 80 units per day, smoking 20 cigarettes per day.
Because of this I believe he would greatly benefit from an interview with you.
Could
you therefore please see him and advise.
Psychiatry
DV done, MRS Tidworth, Routine"
16.28 An
appointment with the CPN was fixed for 8 February 1995. The Claimant did not attend,
and says that he was not told about the appointment. But in any event he saw Brigadier
Wickenden, apparently in place of the CPN, on 30 March 1995. The following passage
is taken from Brigadier Wickenden’s lengthy written report on the Claimant following
the consultation on 30 March –
"[the
Claimant] has experienced a deterioration of mood, motivation, morale and general
well being in the past 12 months and more or less coinciding with the end of his
6 months service in Bosnia in 1993 and the posting back to the UK of his unit
and his marriage in early 1995…
He
was somewhat traumatised in Bosnia because of two particularly nasty atrocities
that he saw and he has dreamt about them. During this session we discussed the
Bosnia situation and I hope that some of his problems in this respect have been
satisfied. He will need some medication: I have prescribed Temazepam 20mgs nocte
for a week and tabs Multivite 2bd. We meet again on April 11th for
further assessment and psychotherapy. Diagnosis: (1) Depressive Reaction Secondary
to Alcohol abuse. (2) Military Stress Reaction to Service In Bosnia
In
contrast the Claimant’s annual report dated 17 March 1995 recorded
that -
"…
Pte Owen started his reporting year well. He is a soldier who if given the enthusiasm
will do a job to a high standard. He must now try to generate his own enthusiasm
towards his career… He is a smart and cheerful soldier with a good sense of humour
and if he combines all of his attributes with enthusiasm he will go far."
16.29 The
Witness Statements
The
Claimant says that following his second or third tour in Northern Ireland he started
drinking more heavily. The relevant passage in paragraph 11 of his statement continues
-
"Most
of us would spend all our time off duty in the pubs. We would drink as much as
we could before closing as this would help us cope with what was going on. I did
not think this was anything abnormal as all the soldiers did the same. We would
finish duty and go straight to the pub. We would come home at closing time as
we couldn’t drink anymore and we would be up in time for duty the next day. I
now understand that I became more quiet and withdrawn after my second tour in
Northern Ireland. At the time, I did not notice the change. It is only with the
benefit of hindsight that I know something wasn’t right."
16.30 As
to his drinking following the tour to Bosnia, the Claimant says that the unit
first returned to Osnabrook, and shortly thereafter was sent on Christmas leave.
Following the Christmas leave he was posted to Berlin, and says that it was there
that the drinking started –
"Outside
the base was a twenty four hour bar. Myself and some of the lads who had served
in Bosnia would spend all their free time in the bar. We would drink alcohol and
as much coffee and tea as possible to stay awake so that we did not go to sleep."
He
goes on to say -
"Whilst
I was in Germany I was drunk pretty much all of the time. I regularly attended
parade drunk from the night before. I would generally get one or two hours a night
sleep. This was not enough time for me to sober up. Sergeant Major Lowton warned
me that if I did not start to pull myself together the army would straighten me
out whether I liked it or not. By this stage I was totally disillusioned with
army life. These reprimands would go in through one ear and come out the other.
These warnings were always informal. I believe that almost everyone in the platoon
knew about my drinking but nobody ever asked why. I was not the only one drinking
at those levels."
16.31 Following
his return to the United Kingdom in August 1994 he says that he continued to drink
heavily and that on each occasion that he saw the MO would still have been drunk
from the night before or at least smelling of drink. He also says that his temperament
and behaviour became more volatile and that on one occasion he woke in the night
to find himself attempting to strangle his wife. It seems that it was that episode
that provoked the consultation with Dr Palmer that resulted in his being seen
by Brigadier Wickenden.
16.32 The
Claimant also relies upon a statement from Warren Howell, who served with him
in the Queen’s Lancashire Regiment and on the tour of duty to Bosnia. Mr Howell
says that he too had problems after the Bosnia tour in that he became aggressive
and destructive. It is noteworthy that he was also referred to Brigadier Wickenden,
and that after that referral Sergeant Major Lowton told him that he had noticed
a change in his behaviour after Bosnia. He goes on to say that much of his ill
disciplined behaviour post Bosnia went unchecked, and expresses the view that
he should have been disciplined for many offences and "probably would
have been had it not for my service in Bosnia."
16.33 The
Defendant served witness statements from a number of the Claimant’s superior officers.
Most of the evidence related to the incidents in which the Claimant’s unit was
involved in Bosnia. But Captain Lowton, who at the relevant time was the Claimant’s
Sergeant Major, says that he may well have spoken to the Claimant about his drinking
in Berlin although he cannot specifically remember doing so. He says that drinking
was normal among soldiers stationed in Berlin, and that he spoke to a number of
the eighty men for whom he was responsible. He goes on to say that he would have
taken immediate action if the Claimant was drinking to such an extent that he
was unable to discharge his duties. He also says that the Company Interview Book,
which it was his duty to keep, records that in the period following the return
from Bosnia the Claimant was thought to be performing sufficiently well to merit
immediate placement on an NCO cadre.
16.34 Sergeant
Major Gleave, who was the Claimant’s platoon sergeant in Northern Ireland, comments
upon the Claimant’s evidence that he began to drink more after his second tour
of Northern Ireland, saying "I think that I did hear rumours through the
"grapevine" that the Claimant had something of a drink problem."
But he goes on to say that if it had been such as to interfere with his duties,
he would have been made to go and see the MO.
16.35 The
Expert Evidence
Dr
Daly and Dr Higson, who were instructed on behalf of the Claimant, and Dr O’Brien,
who was instructed by the MoD, all accept that the Claimant developed PTSD as
a result of his experiences in Bosnia. Professor Dolan, the second expert instructed
by the MoD, accepts that the Claimant had elements of PTSD, but considers that
the majority of his problems stemmed from his abuse of alcohol, which, in his
view, predated the Bosnia tour of duty. The Claimant told Professor Dolan that
he started to drink heavily when he came back from Northern Ireland, that he would
spend all of his spare time in a pub, and that he was "doing about twelve
pints a day." He also told Professor Dolan that on his return to Bosnia
his drinking escalated, having been limited in Bosnia to two cans a night. He
said that "he was now drinking at least ten pints a day as well as spirits."
In the light of the Claimant’s statements to him, Professor Dolan concludes
that "There is little doubt that by the time he was posted to Bosnia he
had an established drinking problem." He also notes that the Claimant
did not report to him any negative experience of a traumatic nature in Northern
Ireland that had caused him distress, and that he had told Dr O’Brien "I
wouldn’t say I really was affected by Ireland." That leads Professor
Dolan to the following conclusion -
"The
beginning of the alcohol problem preceded his experiences in Bosnia. As already
stated in my report, and as also acknowledged to Dr O’Brien, he did not report
any experience of a traumatic nature in Northern Ireland that caused him distress.
Therefore, in my view his alcohol problem cannot be attributed in any manner to
the effects of trauma he experienced in the army. "
16.36 In
his supplementary report of 22 August 2002 Professor Dolan summarises both his
views and those of Dr O’Brien in the following terms -
"My
comments on the reports are that there seems to be a good degree of agreement
between Dr O’Brien and myself. Both of us agree that he has PTSD symptoms but
these could not have been particularly severe as they did not functionally handicap
him. Both of us recognise the importance of background personality factors and
his alcohol abuse as the genesis of his ongoing problems."
16.37 Professor
Dolan’s conclusion that the Claimant’s abuse of alcohol predated his tour of duty
in Bosnia appears to be well-founded, but in my judgment does not undermine the
consensus arrived at by Drs Daly, Higson and O’Brien, a consensus that is consistent
with the diagnosis made by Brigadier Wickenden, although he used different terminology.
I am satisfied that during the period of fourteen months with which I am concerned,
the Claimant was suffering from PTSD as a result of his experiences in Bosnia.
The question is therefore whether it should have been detected.
16.38 I
have no doubt that the Claimant was drinking heavily following his posting to
Berlin after the Bosnian tour of duty. But in that he was not alone. I am also
satisfied that on the balance of probabilities Captain Lowton, then his Sergeant
Major, spoke to him about his drinking, as he did to others. But I also accept
Captain Lowton’s evidence that he would have taken immediate action if the Claimant’s
drinking had been such that he was unable to discharge his duties. It is highly
improbable that he would have been recorded in the Company Interview Book as performing
sufficiently well to merit immediate placement on an NCO cadre if his performance
was being adversely affected by his drinking. I therefore consider that Professor
Dolan was justified in his conclusion that the symptoms of PTSD "…could
not have been particularly severe".
16.39 As
to the occasions when he was seen by the MO, the only reference to alcohol in
the records for the relevant period is in the entry for 28 January 1994, to the
effect that he had had "5-6 beers", which, as is submitted on
behalf of the MoD, is unlikely to have been seen as excessive by army standards.
The visits to the MO in the autumn of 1994 related to complaints for which there
was an obvious organic cause, and would not have raised the suspicion that he
was suffering from a psychiatric disorder related to his service in Bosnia. Accordingly
the highest that the Claimant can put the case is that the visits to the MO in
late 1993 and early 1994 with physical injuries following attacks upon him, ought
to have triggered a line of questioning which would have revealed excessive alcohol
consumption and a related psychiatric disorder. Given the Claimant’s recorded
answer as to his drinking on 28 January 1994, it seems to me to be unlikely that
he would have given a true answer if the question of his alcohol intake had been
raised; but in any event I am not persuaded that such visits ought to have triggered
an investigation directed to his psychological state. Nor is clear support for
that proposition to be found in the expert evidence submitted on behalf of the
Claimant. It is easy in retrospect to see a pattern of behaviour reflecting a
post traumatic disorder; but in my judgment the MoD is not to be criticised for
failing to detect a psychiatric disorder before the point at which the Claimant
decided to speak to the MO about his problems.
16.40 It
follows that in my judgment the MoD was not negligent in failing to detect any
psychiatric disorder in the fourteen month period with which I am concerned.
16.41 Culture
As
to the generic issue of culture there are a number of aspects of the evidence
that are of relevance. In the first part of the trial I heard evidence as to the
deployment of CPN’s on Operation Grapple. The Claimant’s platoon commander in
Bosnia, Major Medley, says in his witness statement that all in the unit received
a briefing on PTSD and coping with stress in theatre in Osnabrook before deployment
to Bosnia. He says -
"We
were all shown what warning signs we ought to be looking out for in ourselves
and our colleagues such as erratic behaviour, drowsiness, mood swings and paranoia.
We saw video footage about PTSD and types of scenarios in Bosnia and received
a lecture from the Cheshire Regiment who had just returned from Bosnia …it was
made clear to us that their would be CPN to us throughout the tour. "
He
goes on to say that towards the end of the tour whilst still in Bosnia -
"We
all received a further talk on PTSD from Captain Webster. Leaflets were handed
out at the lecture setting out warning signs to look out for. It was called "Coping
with Stress – The Homecoming" and we also watched a video about PTSD. The
platoon sergeant ensured that everyone in the platoon including QLR received the
leaflets and attended the video screening."
His
platoon sergeant in Bosnia, Sergeant Major Gleave, says that he remembers -
"…
the two community psychiatric nurses one male and the other female in theatre
with us regarding PTSD and generally encouraging people to come forward if they
felt themselves or others would benefit from discussing particular events".
16.42 Their
evidence as to the briefings in theatre was supported by the oral evidence given
in the first part of the trial by the CPNs who served in Bosnia, Captain Paula
Crick and Major Gary Walker. The Claimant says that he was not given any presentations
about PTSD when in Bosnia. It is possible that he may have fallen through the
net; but I have no doubt that it was the intention that he should have received
both the briefing and the written material.
16.43 Secondly
it is to be noted that the Claimant eventually sought help for his psychiatric
problem, albeit at the instigation of his wife following the incident to which
I have made reference. It is also noteworthy that Warren Howell received psychiatric
attention. Mr Howell also says that -
"After
I had been attending army psychiatrist (Brigadier Wickenden) for a few weeks,
the 36 guys that had served in Bosnia with me were called together and we were
given a presentation of the battle shock video. This was the first time I had
ever seen this video."
16.44 The
other notable feature of Mr. Howell’s evidence is that he says that his own breaches
of discipline were overlooked because it was known that he had served in Bosnia.
I have heard similar evidence in relation to other lead cases. It demonstrates
a reluctance on the part of superior officers, in particular NCOs, to embark upon
disciplinary action in relation to episodes of misconduct occurring in the aftermath
of exposure to action. That indicates a recognition that the stresses of combat
may trigger behaviour with which it would inappropriate to deal with formal disciplinary
action.
17. CONCLUSIONS
17.1 The
lead cases have served graphically to illustrate the nature of the trauma to which
servicemen and women may be subjected in combat and the long term effects of such
exposure. But the general conclusions to be drawn from the lead cases are very
limited.
17.2 As
to the issue of culture, the evidence in the lead cases demonstrates that the
prevailing culture within the army or within a unit is a complex concept manifesting
itself in different forms at different levels within the military hierarchy, see
by way of example Davies paragraphs 2.44-46. As was submitted on behalf of the
Defendant "The culture within a unit is amorphous, multifaceted, and incapable
of reduction to unitary characterization". There is substance to the
distinction drawn by counsel for the Claimants between an official culture closely
associated with the officers and the culture of the men reflecting what actually
happened on the ground, but it is an oversimplification.
17.3 But
there are three features of the evidence as to the attitudes to psychological
problems or psychiatric illness that are of particular relevance. First the evidence
of the majority of the lead Claimants and of their fellow soldiers is to the effect
that they were not prepared to reveal any such problems either to their superior
officers or to the Army Medical Services. They advanced two principal reasons
for not seeking help for such problems, first that to do so would adversely affect
their careers and secondly that they would be subjected to ridicule from officers
and men alike. The exceptions are Earl, Kelly, Lambert and Owen, each of whom
gave an account of symptoms to an MO that resulted in the detection of a psychiatric
disorder in 1991, 1989, 1991 and 1995 respectively.
17.4 Secondly
it is clear that the Claimants in the lead cases had no awareness of the fact
that exposure to trauma in combat could have serious and long standing psychological
consequences. That is relevant to the issue of briefing, the psychological preparation
of service personnel for combat, which in turn bears on the issue of detection.
In that respect it is noteworthy that a psychiatric disorder was detected in the
cases of Lambert who served in the Gulf and Owen who served in Bosnia. Evidence
was adduced both in the trial of the generic issues and in the cases of Lambert
and Owen as to briefing on the possible psychological effects of combat. But in
neither case does it appear that the detection of the disorder was the consequence
of such briefing; and it is not therefore possible to draw any conclusion from
the lead cases as to whether such briefings have changed attitudes to psychological
problems or psychiatric illness amongst serving soldiers.
17.5 Thirdly
the evidence in a number of cases shows that NCOs were alive to the possibility
that the reaction to exposure to stress of combat could trigger ill-disciplined
behaviour, but that they were tolerant of such ill-discipline in the sense that
they did not invoke formal disciplinary procedures, and did not consider it to
be indicative of a psychological problem or psychiatric illness requiring medical
intervention. Thus in the case of Davies Mr. Lewis says that the Claimant was
not pulled up about his bad behaviour. Mr Connor says that he was warned by his
superiors for heavy drinking and fighting, but not officially charged or fined.
In McLarnon Mr. James, who served with the Claimant, says that "It was
incredible that none of our superiors properly pulled him up and tried to get
to the bottom of why he had changed so much." Sergeant Allen, who was
the Claimants supervisor, says that he knew that McLarnon had been seriously emotionally
affected by the Falklands, but goes on to say that he could not report his problems,
as that would have damaged his career.
17.6 The
issue of whether the Defendant was at fault in taking steps to change such attitudes
is addressed in Part A under the generic issue of culture.
17.7 As
to the issue of detection the first and most important point to be made is that
in each of the lead cases the issue turns on facts specific to the case. That
of itself limits the degree to which it is possible to draw conclusions of general
application. But it is nevertheless possible to identify patterns common to a
number of cases that bear on the generic issue of detection.
17.8 First
there is the evidence as to the prevalence of heavy drinking following exposure
to traumatic events in combat. It occurs in the overwhelming majority of the lead
cases. In some it is clear that alcohol was used as self-medication. But such
alcohol abuse has to be set in the context of a culture of heavy drinking by serving
soldiers. Heavy drinking was widespread, and was particularly prevalent in the
BAOR due to the ready availability and cheap price of alcohol. In those circumstances
and as will have been apparent from my judgment in a number of individual cases,
I have come firmly to the conclusion that abuse of alcohol should not of itself
have led superior officers to suspect a psychiatric disorder.
17.9 Secondly
the cases illustrate the difficulty inherent in retrospective diagnosis of a psychiatric
condition. The experts are necessarily dependent to a considerable degree on a
subjective account of symptoms occurring many years ago. As is conceded on behalf
of the Claimants -
"…
it is inevitable that some will be poor witnesses, some will exaggerate, and some
will genuinely have forgotten much of the detail, or even some of the main points
in their story. That is particularly so in a case where by definition the Claimants
and many of the service witnesses have psychological difficulties or have had
problems with alcohol and have terrible disturbing personal histories - where
denial and avoidance often arise as part of the post traumatic pathology."
17.10 In
those circumstances the contemporary service and medical records are of obvious
value, both as an aid to diagnosis and as a measure of the severity of symptoms.
But in a number of cases there is an apparent conflict between the contemporaneous
service records and the evidence from Claimants and their family and friends.
In such cases the records reveal good performance at work over a sustained period,
often with regular promotion, whereas the witness statements describe behaviour
indicative of PTSD or other psychiatric disorder related to exposure to trauma.
The cases of Kift, Sutherland, New and Kelly are obvious examples.
17.11 How
is the apparent conflict to be resolved? I reject the argument that the evidence
contained in the witness statements in such cases demonstrates that the contemporary
records are unreliable. The annual reports on each soldier are in my judgment
a careful and considered evaluation of performance at work. Such reports were
critical so far as promotion was concerned and were therefore of considerable
importance both to the unit and to the individual soldier. I accept that they
are a reliable record of performance.
17.12 The
counter-argument is that where the contemporaneous records appear to conflict
with the account given by a Claimant and his witnesses as to the problems in his
private life, the evidence in the witness statements should be rejected. But I
also reject that as an argument of general application. There is powerful and
persuasive evidence in many cases as to the effect of exposure to trauma in combat
on private lives and personal relationships at a time when according to the service
records a Claimant was performing at a high or at least adequate level, for example
the evidence of Kift’s mother, McNally’s father, McLarnon’s brother, and perhaps
most movingly Sutherland’s wife in the letter that she wrote to him when she left
him.
17.13 I
am satisfied that the explanation for the apparent conflict is the ability of
an individual suffering from a trauma related psychiatric disorder to suppress
or conceal his condition from those with whom he worked and in particular his
senior officers. Thus Mr. Davies said that he deliberately misled the MOs, Mr.
Kift that "I learnt to hide my emotions", X that "I managed
to hide my panic attacks and emotional problems at work", Mr. Flynn that
"I had to hide my problems and try to continue with my duties." As
Dr Deahl pointed out in his report in X, such concealment is "a common
coping strategy used by individuals with PTD".
17.14 An
important and related point is that the evidence in a number of cases, for example
Sutherland and McNally, shows that there may be marked fluctuations in the condition
of someone suffering from PTSD. I should add that there was much debate in the
first stage of the trial as to the question of late onset PTSD as opposed to late
reporting of the condition; but I did not find late onset PTSD in any of the lead
actions.
APPENDICES
1.
Abbreviations
2.
Parties agreed list of Generic Issues
3.
Claimants’ Revised Synopsis of Case on System
4.
Schedule of successive Directors of Army Psychiatry and Professors of Military
Psychiatry
5.
List of Witnesses Claimants
a.
Lay
b. Expert
6.
List of Witnesses Defendants
a.
Lay
b. Expert
APPENDICES
Appendix
1
List
of Acronyms/Abbreviations
ACDS
(Ops/Sy) | Assistant
Chief of Defence Staff (Operations and Strategy) |
ACDS (Pers/Res) |
Assistant Chief of
Defence Staff (Personnel and Reserve) |
ACGS |
Assistant Chief of
General Staff |
AG |
Adjutant General |
AMD |
Army Medical Directorate |
AMS
| Army
Medical Services |
ASD |
Acute Stress Disorder |
ASR |
Acute Stress Reaction:
|
ATD5 |
Army Training Directive
5 |
BAOR |
British Army on the
Rhine |
BRU
| Battleshock
Recovery Unit |
CBT |
Cognitive Behavioural
Therapy |
CID |
Critical Incident
Debriefing: A term used by the US Army: See further the section on Debriefing
para 88(iii) in the Defendant’s Opening Submissions. |
CISD |
Critical Incidence
Stress Debriefing |
CO |
Commanding Officer:
of a Regiment: usually a Lieutenant Colonel rank |
CPN |
Community Psychiatric
Nurse |
CPNS |
Community Psychiatric
Nursing Service |
CSR |
Combat Stress Reaction. |
CT
| Cognitive
Therapy |
DA
Psych | Director
of Army Psychiatry |
DEROS |
Date Expected to Return
from Overseas: a term primarily used in the Vietnam war, whereby soldiers were
required to serve a fixed term in Vietnam before returning home. |
DGAMS |
Director General Army
Medical Services |
DSM |
Diagnostic and Statistical
Manual: a classification system published by the American Psychiatric Association |
EMDR |
Eye Movement Desensitisation
and Reprocessing |
ET |
Exposure Therapy |
F
Med 1 | Form
completed on medical examination |
F
Med 2 | Medical
examination record |
F
Med 133 | Form
recording discharge medical examination (superseded part of function of F Med
1) |
F
Med 136 | Request
by civilian doctor for service medical history |
F Med 143 |
Form recording in
service medical examination |
F
Med 4 | MoD
equivalent to GP records Lloyd George Cards |
F Med 5 |
Folder storing the
F Med 4 |
F
Med 8 | Form
to initiate a psychiatric referral |
FFMA |
Forward Force Maintenance
Area |
FMA |
Force Maintenance
Area |
FP
| Forward
Psychiatry |
FPT
| Field
Psychiatric Team |
ICD |
International Classification
of Diseases and Related Health Problems: a classification system published by
the World Health Organisation (WHO) |
IDF |
Israel Defence Forces |
IES |
Impact of Events Scale |
ISTSS |
International Society
for Traumatic Stress Studies |
JCSC |
Junior Command and
Staff Course |
MAOI |
Monoamine Oxidase
Inhibitor |
MDG(N) |
Medical Director General
(Navy) |
MIND |
National Association
for Mental Health |
MO |
Medical Officer |
MoD
| Ministry
of Defence |
NCO
| Non
Commissioned Officer |
NITAT |
Northern Ireland Training
Advisory Team; commonly used to describe the specialist training given to all
those deployed to Northern Ireland |
OC |
Officer Commanding |
OD |
Operational Debriefing |
Operation
Corporate | The
Falklands Campaign |
Operation
Granby | The
Gulf War |
Operation
Grapple | Bosnia
peacekeeping duties (commencing Autumn 1992) |
ORBAT |
Order of Battle –
the logistical plan for a campaign |
PD
| Psychological
Debriefing. |
PGMO |
Post Graduate Medical
Officer (usually referring to the PGMO course) |
PIE/S/B |
The principal elements
of Forward Psychiatry, comprising Proximity (treat near to front line) Immediacy
(treat immediately) and Expectancy (treat with an expectation of return to combat).
S is for simplicity. B is for Brevity. |
PPOC |
Principal Personnel
Officers Committee: a tri-service Committee comprising the heads of personnel
of the three Services: the Adjutant General (Army); the Second Sea Lord (Navy)
and the Air Member for Personnel (RAF). |
PTD |
Post Traumatic Disorder: |
PTSD |
Post traumatic stress
disorder |
PTSR |
Post Traumatic Stress
Reaction: a term used in the definition of the Group Action by the Masters’ Orders
of 8 and 19 November 2000, but no longer used by either party. |
PULHEEMS |
The MoD’s system of
assessing functional capability: P: Physical capacity for muscular effort
assessed on body build; U Upper Limbs, ie ability to perform muscular work;
L Locomotion – ie ability to march/run; H Hearing acuity; EE
Eyesight (visual acuity); M Mental Capacity; S Stability (emotional) |
QEMH |
Queen Elizabeth Military
Hospital, Woolwich |
QR’s |
Queen’s Regulations |
RAMC
| Royal
Army Medical College |
RAND |
The RAND Organisation:
a US think tank (non profit), primarily concerned with military matters: RAND
is a contraction of Research and Development. See www.rand.org
|
RAP |
Regimental Aid Post
|
RCT |
Randomised Control
Trial |
RMA |
Royal Military Academy,
Sandhurst |
RMO
| Responsible
Medical Officer |
RNH
Haslar | Royal
Naval Hospital, Haslar |
SCAO |
Standing Committee
on Army Organisation |
SG |
Surgeon General |
SGPL |
Surgeon General Policy
Letter |
SPRINT |
Special Psychological
Rapid Intervention Team |
SSRI |
Selective Seratonin
Reuptake Inhibitor |
TCA |
Tricyclic Anti Depressant |
UDR |
Ulster defence Regiment |
UKLF
| United
Kingdom Land Forces |
APPENDIX
2 – GENERIC ISSUES
as
at 19 February 2001
A
- Introduction
A1. This
is the list of issues that has been discussed between the parties and represents
the current form of the common or generic issues in the cases brought by the Claimants
in Groups 1 and 2 of the PTSD Group Litigation.
A2.
The parties have selected a number of cases ["the Lead Claimants"]
to represent and illustrate the generic issues to be tried.
B
– General Definitions
B1. In
the context of these Group Actions, ‘combat’ is taken to include all military
deployments involving risk of exposure to trauma such as supporting the civil
authorities in Northern Ireland and ‘peace keeping’ duties in the former territories
of Yugoslavia.
B2. In
the context of these Group Actions and subject to any further refinement of these
matters in the parties’ expert evidence:
a) ‘Acute Stress
Reaction’ ("ASR") is taken to mean psychological/psychiatric disturbance
arising during, or immediately following, exposure to combat. It includes, but
is not limited to, the reactions otherwise described as ‘Combat Stress Reaction’
("CSR") and ‘Battleshock’.
b) ‘Post
Traumatic Disorder’ is taken to mean psychological/psychiatric disorder, dysfunction
or disability persisting, or arising, at an interval following exposure to combat.
It includes, but is not limited to, Post Traumatic Stress Disorder ("PTSD")
and co-morbid conditions.
B3. In
respect of the prevention, detection and treatment of both Acute Stress Reaction
and Post Traumatic Disorder, the nature, content and incidence of the Defendants’
duty may change with time and with the nature of the material deployment. For
the purposes of this litigation, the parties have agreed to concentrate on 5 readily
identifiable periods and theatres during the timescale that is material to these
2 Group Actions. They are as follows:
i) Service
in Northern Ireland during the period up to 1989.
ii) Service
during ‘Operation Corporate’ (the Falklands’ Campaign).
iii) Service
during ‘Operation Granby’ (the Gulf War).
iv) Service
in Northern Ireland during the period 1990 to 1996.
v) Service
during ‘Operation Grapple’ (‘peace keeping’ duties in Bosnia).
The
Court will be invited to consider the issues set out below in relation to these
periods and theatres.
C
– Duty of Care
C1. The
Defendants accept that they owed a duty of care to their service personnel to
provide a safe system of work so far as was reasonable and practicable in all
of the material circumstances.
C2. The
Defendants accept that in general terms they knew at all times material to these
Group Actions that combat (defined widely as above) was capable of causing psychiatric/psychological
consequences, including chronic conditions.
C3. In
relation to all or any of the foregoing issues and the formulation of the duty
of care relied on by the Claimants, to what extent are resource constraints relevant?
D
- Overview
D1. As
will be made clear from the individual issues formulated hereinafter, the Court
will be invited to address the following topics:
a) What
the Defendants knew about Acute Stress Reactions and Post Traumatic Disorder at
all material times;
b) What
the Defendants ought to have known about such conditions at all material times;
c)
What the Defendants did and/or ought to have done in relation to the prevention,
detection, treatment and care of such conditions at all material times;
d) The
extent to which any steps which ought to have been, but were not taken by the
Defendants in relation to the prevention, detection and treatment of such conditions
would have avoided the alleged injury or injuries complained of by each individual
Lead Claimant.
D2. It
is not proposed that the Court will be asked to determine the quantum (if any)
of damages recoverable by each Lead Claimant.
D3 In
relation to each of the issues formulated hereinafter, the Court will be invited
to address the practices and policies of the fighting forces of other countries,
namely the USA and Israel, as well as the relevance and significance of such matters.
E
– The relationship between Acute Stress Reactions and Post Traumatic Disorders
E1. The
Claimants contend that in certain of their cases Post Traumatic Disorder has arisen
in the absence of a prior, or an observed prior Acute Stress Reaction suffered
at the time of the relevant combat. The Court is invited to consider:
a) Whether
Post Traumatic Disorder may develop in the absence of a prior Acute Stress Reaction
suffered at the time of the relevant combat;
b) The
actual knowledge of the Defendants of Post Traumatic Disorder, its causation and
the relationship with Acute Stress Reaction, at all material times;
c) The
knowledge of those matters that the Defendants ought to have possessed at all
material times.
F
- Screening
By
"screening" the parties mean: the identification pre-combat of individuals
allegedly vulnerable to Post Traumatic Disorder, and the taking of appropriate
steps to remove such persons from the ambit of the risk. The Court is invited
to consider the following issues:
F1. To
what extent is it both possible and practicable to identify service personnel
likely to develop Post Traumatic Disorder prior to:
a) Recruitment
to the Services? and
b) Deployment
to a combat situation?
F2. As
part of the general duty of care to service personnel, or those who were intending
to become such, did the Defendants owe a specific duty at any material time to
identify such vulnerable individuals a) before recruitment, and b) before specific
deployments?
F3. If
such a specific duty was owed, what was reasonably required of the Defendants
at all material times so as to discharge this duty a) before recruitment and b)
before specific deployments?
F4. Did
the Defendants discharge any such duty to all or any of the Lead Claimants and,
if not:
a) What
breaches of duty are established? and
b) To
what extent, if any, was any such a breach of duty causative of the alleged injury
complained of by a Lead Claimant?
G
– Briefing
By
"Briefing/Preparation" the parties mean: the psychological preparation of service
personnel for combat prior to, or during, their deployment. The Court is invited
to consider the following issues:
G1. As
part of the general duty of care to service personnel did the Defendants owe a
specific duty at any material time to "brief/prepare" them for deployment
and/or combat?
G2. If
the Defendants owed a duty to "brief/prepare" such service personnel:
a)
What was reasonably required of the Defendants to discharge this duty?
b)
Did the Defendants discharge this duty, by the training of personnel or otherwise,
and, if not, in what respects?
G3. More
specifically, what steps did the Defendants take, and/or ought they to have taken,
(a) at the pre-deployment stage, and (b) during deployment in respect of the periods
and theatres set out in section B4 above?
H
- Debriefing
By
"debriefing" the parties mean: intervention, typically by counselling
or the taking of other psychological measures in the aftermath of the relevant
trauma, in relation to service personnel exposed to combat and/or similarly stressful
events, with a view either to detecting an Acute Stress Reaction or other acute
psychological disturbance, in addition to preventing the onset of Post Traumatic
Disorder in the first place, or ameliorating its effects or facilitating subsequent
"help-seeking" by affected individuals. The Court is invited to consider the following
issues:
H1. Did
the Defendants owe a duty of care at all material times to "debrief"
service personnel?
H2. If
so, at any material time, or in relation to any particular deployment, or in any
of the periods and theatres identified in section B4 above:
a) In
what circumstances was that duty owed?
b) To
whom was that duty owed?
c) What
specifically did such duty entail?
H3. What
steps did the Defendants in fact take to ‘debrief’ service personnel at all material
times?
H4. Were
the Defendants in breach of any such duty of care in relation to the Lead Claimants
at any material time: if so, in which specific respects?
I
- Detection
The
Defendants accept that they were under a duty to take proper steps to monitor
the health of service personnel. The Claimants contend that this included a duty
to take reasonable steps to identify individuals suffering from Acute Stress Reactions
and Post Traumatic Disorder arising from trauma or the stress of combat. The Court
is invited to consider the following issues:
I1. Did
the Defendants owe a duty to take reasonable steps to identify individuals suffering
from Acute Stress Reactions and Post Traumatic Disorder at any material time and,
if so, from when?
I2. If
so, what steps were the Defendants reasonably required to take to discharge the
duty at any material time in respect of:
a)
Acute Stress Reactions?
b)
Post Traumatic Disorder with an antecedent Acute Stress Reaction which was or
should have been known to the Defendants?
c)
Post Traumatic Disorder with no apparent antecedent Acute Stress Reaction?
I3. What
steps did the Defendants in fact take to detect the above conditions in respect
of the periods and theatres defined in section B4 or their aftermath?
J
– Cumulative Exposure
The
Court is invited to consider the following issues:
J1.
What is the psychological/psychiatric effect of cumulative exposure to combat?
J2. What,
if anything, could and/or should the Defendants have done at all material times
to address this?
J3. In
relation to any Claimant whose exposure to combat or conflict has been cumulative,
are the Defendants in breach of any duty of care?
K
- Treatment
The
Court is invited to consider the following issues:
K1. What
treatment, if any, ought the Defendants to have offered and/or provided for personnel
suffering from either Acute Stress Reactions and/or Post Traumatic Disorder at
any material time and, in particular, in relation to the periods and theatres
identified under section B4 above?
K2. How
effective is any such treatment likely to have been, assuming it were to be competently
administered?
K3. What
was the effect, if any, on the efficacy of any such treatment arising from delay
between the onset of the condition and the commencement of that treatment?
K4. What
treatment did the Defendants purport to offer to personnel suffering from either
Acute Stress Reactions and/or Post Traumatic Disorder at any material time and,
in particular, in relation to the periods and theatres identified under section
B4 above?
K5. What
treatment did the Defendants provide for personnel suffering from either Acute
Stress Reactions and/or Post Traumatic Disorder at any material time, in particular,
in relation to the periods and theatres identified under section B4 above, and
how effective a) was it, and b) should it have been?
K6. Were
the Defendants at any material time in breach of any duty to provide treatment
for any of the Lead Claimants, and, if so in what respects?
L
– Duty to Service Personnel at Time of Discharge
The
Court is invited to consider the following issues:
L1. Did
the Defendants owe a duty of care to service personnel to assess their physical
and mental health immediately prior to their discharge from the Services?
L2. If
so, what steps were the Defendants reasonably required to take to discharge that
duty at any material time in respect of:
a) The
assessment of individuals already identified as suffering from Post Traumatic
Disorder?
b) The
identification and assessment of personnel who might be suffering from Post Traumatic
Disorder but who had not previously been identified as sufferers?
L3. Did
the Defendants owe a duty of care to ensure appropriate contact with and/or follow
up by civilian medical services for any individuals who were suffering from, and/or
who had previously suffered from, Post Traumatic Disorder at the point when such
individuals were discharged from the Services?
L4. If
so, what steps were reasonably required of the Defendants to discharge that duty
at all material times?
L5. Were
the Defendants in breach of any such duty of care in relation to the Lead Claimants
at any material time: if so, in which specific respects?
M
- Causation
M1. If
and to the extent that the Defendants are found to be in breach of any duty of
care to any of the individual Claimants at any material time, what loss and damage
resulted?
N
- Immunity
N1. Does
section 10 of the Crown Proceedings Act 1947 (repealed from 15th May
1987) operate as a complete or partial defence in relation to any breach of duty
established by any of the Claimants?
N2. Do
the Human Rights Act 1998 and/or Article 6 of the ECHR debar the Defendants from
relying on section 10?
N3. If
the court should hold in relation to a given Lead Claimant that the Defendants
are entitled to rely on section 10 as a complete or partial immunity in relation
to some but not all breaches of duty proved in respect of that Claimant, then
what loss and damage can give rise to a successful claim for that Claimant?
O
- Limitation
O1. In
relation to a given Lead Claimant, are the Defendants entitled to rely on section
2 of the Limitation Act 1980 (read in conjunction with sections 11 and 14) as
a defence to some or all of the breaches of duty, if any, established against
them?
O2. If
so, should the primary limitation period be disapplied by virtue of section 33?
APPENDIX
3 – CLAIMANTS REVISED SYNOPSIS OF CASE ON SYSTEM
Introduction
These
short particulars are given pursuant to the ruling of the learned Judge on 16
November 2001, as they would have been pursuant to the earlier indication by the
Claimants. They are placed in the form of a single synopsis for coherence and
ease of reference, but are given in response to the Defendants Request under CPR
Part 18 dated 26 February 2001 in respect of the Claimants’ positive case with
regard to systems of work. They have been voluntarily updated as at the end
of the generic factual phase of the trial.
The
synopsis is largely organised according to the issues formulated between the parties
save where that would lead to repetition. It is a summary and synopsis only to
bring overall definition – further detail is to be found in the Expert Evidence
disclosed.
C
– Duty of Care
- The
Defendants originally accepted the obligations set out at paragraphs C4
and 5 of the Amended Generic Statement of Case. On Friday 8 February in their
Skeleton Argument, and later in Oral Opening, the Defendants sought to change
their position to provide a wide-ranging immunity for all acts and omissions in
a theatre of operation, whether as a result of immediate operational decision,
other decision or system. The Claimants maintain the original formulation as appears
below and will make legal submissions in support of them at the appropriate time
C4. The Defendants owed service personnel a duty to take reasonable care
for their health and safety in the course of and incidental to their service.
Subject to the important qualification below, the duty is similar to that between
employer and employee, which covers premises, equipment, personnel, systems of
work including supervision and, where appropriate, medical supervision, care and
support.
C5. Whereas an employer is usually liable in respect
of damage caused by ultra-hazardous activity, the above formulation of the Duty
of Care does not apply in a service setting when related to immediate operational
decisions and actions within a theatre of war or analogous situation. Service
personnel, the prime resource, are the means by which the battle is won and in
battle their personal welfare is subordinate to their combat role.
- The
Claimants’ case is that the Defendants had, or should have had, 2 converging motives
for seeking to carry out their duty of care to the high standard set out in the
Statement of Case [1] the welfare of their personnel and [2] the maximisation
of manpower and operational efficiency. In almost all circumstances, a system
maximising the welfare of personnel would also have operated to maximise manpower
and operational efficiency. Thus for example, good briefing, in the form of high-grade
mental and psychological preparation for combat, would have been both protective
of the welfare of the men in combat and would, by the same token, have maximised
the number of men who remained effective in combat. The only exceptions arose
when immediate operational requirements in the course of combat required that
the welfare of the men be subordinated to the needs of the battle. By definition
that exception is narrow, arises only during active combat, and only rarely then.
It cannot arise in the course of selection, training, education, briefing, care
of the men away from the front line, detection and treatment of ASR and PTD.
- Intrinsic
to the operation and maintenance of a good system was the understanding and acceptance
of that convergence of interests by the Director and Professor of Army Psychiatry
of the day, and by their superiors. The Services, and particularly the Army, operate
‘from the top down’ in the sense that attitudes held in the higher levels of command
necessarily govern the attitudes of those below. That understanding and acceptance
will at all times be crucially dependent on the prevalent culture. If the culture
is inimical to acknowledgement of and attention to the inevitable and sizeable
problems arising from trauma and stress, then the system will be relatively or
absolutely unresponsive to that aspect of the men’s welfare. The convergence between
operational requirements and the mental and psychological welfare of personnel
will not be perceived sufficiently or at all. The services had the obligation
to address the problems arising from trauma and stress with intelligence, not
prejudice. A safe system required the creation and maintenance of a culture, which
took these problems seriously and moved vigorously to address them.
- A
safe system required that established knowledge and expertise should be kept alive
and not lost, particularly in a specialist field such as military psychiatry.
At the same time, a safe system required that new learning in military psychiatry
and psychology, British and international, was fully monitored, absorbed and applied.
This also applied to relevant non-military psychiatric and psychological learning:
for example successful therapies for treating stress related disorders, including
anxiety disorders, and illnesses, including depression.
F
– Screening
- The
Defendants should have operated an effective system for assessing and/or
screening recruits, so as to identify those who [1] had a history of or
any current psychiatric illness or disorder or personality disorder [2]
had a similar history in the close family [3] had low intelligence. In respect
of these three risk factors at least, effective pre-recruitment screening was
possible and should have been effectively carried out throughout the period.
- The
PULHEEMS system provided a suitable framework for such screening through the ‘Mental’
and ‘[Emotional] Stability’ criteria [M and S], but the criteria needed vigorous
application.
- A
reasonable system would have involved the use of structured interviews designed
to elicit such histories and the application of basic tests in respect of I.Q.
- Each
recruit should have had a report from the general practitioner, family doctor
or equivalent (at least holding the G.P. records and case notes), who should have
been required to answer directly the questions relevant to the structured interview
in respect of the recruit’s own history and I.Q., insofar as he or she could,
and given the necessary reassurance as to confidentiality and consent.
- Each
recruit should have been required to answer specific questions designed to elicit
the history of their parents and siblings, to establish the relevant history so
far as possible. Whilst it is understood this would not have been a completely
reliable method of eliciting or excluding such family history, it would have been
worthwhile and would have caught many such histories.
- Each
recruit should have undergone basic tests of I.Q. (widely available throughout
the period) and a brief report should have been obtained from the last school,
college or other educational establishment.
- Any
recruit in respect of whom there was a relevant positive history or who revealed
an I.Q. below 85 should have been referred for specialist psychiatric/psychological
assessment.
- Any
history of previous trauma, physical abuse, sexual abuse, or other history indicating
vulnerability to stress incidentally elicited or volunteered should have led to
consideration of similar referral depending upon the extent and nature
of the circumstances elicited.
- Any
referral in respect of a significant positive history, personal
or familial – by way of example only, psychosis, schizophrenia and personality
disorder - should usually have led to rejection. In respect of a more minor
condition – by way of example only, an episode of depression where symptoms had
resolved at least a year earlier - then there should have been careful consideration
of whether to recruit and then allocation in respect of regiment and role.
- Any
recruit with an I.Q. of 80 or below on detailed assessment should have been rejected.
Those of I.Q. between 81 and 85 should have had careful consideration in respect
of regiment and role.
- A
synopsis of system in relation to post recruitment screening is given under the
rubric of Detection below.
G
– Briefing
- Preparation
and training are absolutely vital for military functioning. This applies with
equal force to preparation to withstand the stress of combat, as it does to any
technical task which service personnel may have to perform.
- A
safe system would broadly involve two forms of preparation and education to help
personnel avoid damaging consequences of trauma and stress.
- The
first is realistic and thorough training for the tasks and conditions they would
face, so that when the men were in a combat situation as defined, the conditions
were as familiar as possible and the level of uncertainty was minimised. It is
accepted that no such training can wholly reproduce the conditions of patrolling
a hostile area, much less wholly reproduce the experience of a theatre of war
or of combat itself. This first mode of training is essential, but insufficient
on its own as a preparation for combat or protection against stress.
- The
second form of preparation and education is thorough briefing about fear, stress
and the effects of fear and stress on the minds and bodies of those who will undergo
it. The word ‘thorough’ is important and, once more, an appropriate culture or
attitude is important. This preparation must not be done so as to imply that this
training is unimportant, or not really necessary for the particular unit being
trained. The point of this training is to make the man realise that he will
feel fear, which may well be debilitating or even temporarily disabling, unless
he understands the fear and its effects. He should be given the reassurance that
his elders and seniors have had and will have these feelings and emotions,
and will undergo great stress. He should be given a ‘mental map’ and a thorough
grounding in beliefs to help him to cope: ‘fear is normal’, ‘fear should not be
suppressed but talked about openly’, ‘there is no shame in feeling or showing
fear, only in giving in to it,’ and "you can overcome your fear."
- A
culture of suppression of such discussion, of the ‘stiff upper lip’, operates
directly against this briefing, since it implies that the courage which all service
personnel need to do their jobs is inconsistent with open discussion of fear or
open teaching about fear. Half hearted, ambiguous or sarcastic teaching about
fear, any teaching which implies it is not for ‘real men’, will communicate the
opposite of the desired message. It will tell the man who anticipates fear, or
who later feels it, that he is incompetent and on his own, rather than reassure
him that he is normal, competent and at one with his comrades in feeling as he
does.
- All
ranks should have been prepared after this fashion. The message could reasonably
have been delivered in different language for different ranks and groups. It should
have been taught to all ranks during training and reinforced in the preparation
for any hazardous deployment and in its early stages. It is accepted that this
training is normally inappropriate for the eve of battle or in a moment just before
battle begins, unless in response to an expression of worry by an individual serviceman
or woman.
- Had
an adequate system of teaching/briefing about fear and the stress of combat been
put in place, it would not only have been protective of the men – its primary
function – it would also have tended to generate a culture within the services
which was much more helpful in coping with the consequences of ASR and PTD when
they inevitably arose. Further it would have tended to maintain the optimum levels
of manpower.
- All
ranks should have been taught to support each other during combat, encouraging
each other in a real application of the beliefs instilled in earlier training.
- In
addition, commanders, unit and sub-unit commanders and NCOs should have been trained
to look for the signs of stress and the signs of impending or actual breakdown
in their men: in the language of the First World War, to notice who ‘was not wearing
well’, so as to give support and help as appropriate. Earlier texts abound with
descriptions but they should have been on the look out for the following: [1]
obvious anxiety [2] tremor [3] absence of anxiety and marked detachment [4] failure
to respond in the usual range of emotions in a wide variety of situations e.g.
sadness, grief, disgust, anxiety and anger.
- The
essential points above were written about by General McGhie in 1973 and by
General Richardson in 1978 and lectured about by the latter in previous
years at Staff College. Such a system should been in place throughout the period.
H
– Debriefing
- A
safe system should have incorporated straightforward teaching of commanders, unit
and sub-unit commanders and NCOs to be able to perform operational debriefing
with an eye for the welfare of their men.
- Operational
debriefing should have operated [1] to reinforce the beliefs instilled in earlier
training and briefing set out above [2] to allow for the voluntary ventilation
of emotion in themselves and subordinates if they wished, including fear, as well
as the description of the events which they had experienced in a military context
[3] to encourage the men that they could cope, must cope and should continue.
This constitutes the ‘ventilation’ and ‘defusing’ of that fear and other harmful
emotions. The ability to do so without receiving disapproval is important and
should have been part of a reasonable system of protecting the men. This was practised,
observed and recorded during the Second World War and should have been practised
throughout the period of the case.
- It
is accepted that operational requirements will take precedence over ‘operational
debriefing’ in this sense and with this intention: an obvious example is when
there is active combat requiring immediate information exchange and immediate
action. However, all accounts of war describe periods of furious action interspersed
with periods of inactivity and often emphasise the boredom of war, even during
phases of active combat. There are thus many opportunities for operational debriefing
involving ventilation and defusing, even during times of active combat. Officers
and NCOs/Petty Officers should have been trained to use these opportunities, particularly
in respect of personnel whom they had reason to believe ‘were not wearing well’.
- Operational
Debriefing should also have enabled commanders and NCOs/Petty Officers to withdraw
those with moderate to severe ASR to the Regimental Aid Post, or similar, so as
to receive respite, psychological first aid or PIEB frontline intervention as
appropriate
- Operational
Debriefing should also have operated as a triage for those with lesser reactions
or no reaction at all and constituted the first stage under the rubric of Detection
in respect of risk for increased and longer term reaction. Commanders and NCOs/Petty
Officers should have been trained to note those at higher risk of subsequent reaction/disorder,
both in the remainder of the campaign for the purposes of operational efficiency,
and beyond the campaign for the welfare of the men. Higher risk groups included:
[1] those exhibiting signs and symptoms of ASR [2] those exposed to human carnage
and in particular body handlers, medical, paramedical and ancillary personnel
[3] those who experienced enemy/terrorist action resulting in casualty within
the group [4] those involved in ‘friendly fire’ incidents [5] those witnessing
atrocities [6] those with particularly lengthy exposure to stressors [7] those
engaged in cumulative exposures after their third exposure.
I
– Detection
- Commanders
and NCOs/Petty Officers should have already been trained and educated in the above
matters and it would have been the natural thing, as well as the right thing,
in a supportive culture for them to refer the men on suspicion of PTD to the MO. Yet
again, welfare and operational efficiency converge, as disordered men are a liability
and a danger to themselves and others. Commanders and NCOs/Petty Officers should
have been trained to watch out for the following as indicators of PTD [1] significant
change in conduct [2] significant misconduct [3] significant indiscipline [4]
significant/lasting change in demeanour [5] change in personality [6] alcohol
or substance abuse [7] depression and anxiety [8] frequent attendance for medical
treatment [9] evidence of unexpected physical injury.
- Generally,
MOs should have been trained for a rigorous application of the PULHEEMS M and
S categories in the correct culture. In the event of concern in the M and S categories
there should have been referral for specialist opinion.
- Specifically,
MOs should have been trained in [1] the above signs and symptoms of PTD [2] structured
interviewing techniques to elicit PTD [3] that PTD was a serious condition requiring
referral for specialist opinion for the exclusion of such a diagnosis if in doubt
and in any event for treatment; and provided [4] with records of combat exposure
on the F Med 4 Form, to include reference to higher risk status if appropriate
and [5] questionnaires for administration at PULHEEMS/referral on combat veterans
as an aid in the detection of PTD and in particular:
a) the
Impact of Events Scale (Horowitz et al. 1979);
b)
the Jackson PTSD Interview (Keane et al. 1980; 1985);
c)
the Mississippi Scale for Combat Related PTSD (Keane, et al. 1982; 1988);
d) the
PTSD Module of the SCID (Spitzer et al., 1984);
e)
the Clinician Administered PTSD Scale (Blake, et al. 1990);
f)
the PTSD Checklist (Weathers et al., 1993), etc.
amongst
many others appearing during the course of the 1980s, during which time the Defendants
could and/or should also have built upon those tools with specific questionnaires
tailored to their own experience of combat theatre.
- Apart
from regular PULHEEMS and specific referral, all high-risk veterans should have
received an additional PULHEEMS between 6 and 12 months following return from
theatre along the above lines as a matter of routine.
- In
the event that PULHEEMS or referral led to the diagnosis of PTD or other significant
psychiatric/psychological disorder/illness or personality disorder, whether in
a combat veteran or otherwise, personnel should have been educated again in
line with the advice set out below at K3, downgraded as unfit for service
in combat and have remained as such until recovered or sufficiently recovered
so as safely to resume service in combat. Careful consideration should then
have been given as to future role, and if returned to full duties their vulnerability
recorded.
J
– Cumulative Exposure
- The
Claimants do not advance a positive case of breach under this rubric, but contend
that repeated exposure should have raised the index of suspicion in relation to
triage and detection under the rubrics Operational Debriefing, Detection
and Duty at time of Discharge.
K
– Treatment
- The
Defendants should have provided psychological first aid for those in the early
stages of ASR ("those not wearing well") through ventilation
and defusing, as set out under Debriefing, throughout the period
- The
Defendants should have provided PIEB early intervention in respect of those with
CSR throughout the period.
- Further
reinforcement in beliefs / psychological first aid / education should have been
given at post-deployment briefings: [1] reissuing the mental map that it was normal
to have felt fear/showed fear/had an ASR and normal to feel a continuing reaction
or develop a later reaction [2] establishing cohesion in the homecoming as in
combat [3] encouraging the men to discuss their experiences, fears and reactions
and to support each other on their return as they had in combat [4] warning the
men of alcohol and substance abuse, and the risk of self-medication through them
in respect of PTD [5] warning the men of difficulties they may have in re-establishing
personal relationships and patterns of sleep, and in the longer term risks of
discord at home and at work [6] identifying that help was available in the event
of problems and from where; that it should be sought early; and that seeking help
would be regarded as normal and was indeed their duty [7] identifying the duty
of commanders and NCOs to continue to support their men and of their obligation
to watch carefully for the signs of ASD and PTD, which required referral and should
not be ignored.
- If
in the late 1980s and early 1990s the Defendants did choose to carry out Psychological
Debriefing or CISD for higher risk groups, this would not have been reasonable
even in this period as a single hit intervention, but only as an addition to post-deployment
briefings as set out above in the context of a broader system.
- Upon
the detection of PTD there should have been the following range of treatments
by period.
Pre-1980
Treatment
of PTD
Even before the label of PTSD was promulgated, treatment had
to be attentive to roots of PTD in war experiences and stress, the importance
of dreams, flashbacks and nightmares etc., recognising the substance of what was
to be labelled PTSD.
[1]
Behaviour therapy, and in particular Exposure Therapy [2] Pharmacological Therapy,
and in particular the use of Benzodiazepines, MAOI and Tricyclic anti depressants
[3] Psychodynamic and/or Supportive Psychotherapy – not in any particular
order, whether in a group setting or individually, and to be used in combination
or sequentially as clinical judgment saw fit in any particular case. [4] Treatment
for Alcohol and Substance Abuse and/or other disorders such as depression if
such problems were present, in conjunction with the above.
1980-late
1980s
Treatment
of ‘simple’ PTD, ‘simple’ PTSD and PTSD with comorbid conditions.
[1] Behaviour therapy, and in particular Exposure Therapy with increasing
elements of Cognitive Behaviour Therapy, which should have been beginning in use
for the end of Operation Corporate and in full use by the end [2] Pharmacological
Therapy, with MAOIs and Tricyclic anti depressants, supplemented as
necessary by Benzodiapines, Buspirone and Beta Blockers [3] Psychodynamic
and/or Supportive Psychotherapy – whether in a group setting or individually,
to be used in a combination or sequentially as clinical judgment saw fit in any
particular case, and with increasing reliance after Operation Corporate on Exposure
Therapy and CBT as the treatment of first choice, followed by Pharmacotherapy
- [4] Treatment for Alcohol and Substance Abuse, and/or other primary or comorbid
disorders if such problems were present, in conjunction with the above.
Late 1980s-mid 1990s
Treatment
of ‘simple’ PTD, ‘simple’ PTSD and PTSD with comorbid conditions.
[1]
Cognitive Behaviour Therapy, fully fledged, but still relying extensively on Exposure
Therapy [2] Pharmacotherapy, the above but now with emphasis on SSRIs [3] Psychodynamic
and/or Supportive Therapy – whether in a group setting or individually,
to be used in combination or sequentially as clinical judgment saw fit in any
particular case, with heavy reliance on [1] and [2] as the treatments of first
choice - [4] Treatment for Alcohol and Substance Abuse, and/or other primary
or comorbid disorders if such problems were present, in conjunction with the
above.
As a last resort for the minority who did not improve substantially
– throughout the period
Supportive
social therapies maintaining some hope and quality of life.
L
– Duty to Service Personnel at Time of Discharge
- Given
that personnel generally move to the Reserve List upon discharge and are available
to serve in a combat theatre such as in the Gulf, welfare and operational efficiency
converge. Personnel were still serving at the time of medical examination and
their discharge might not have been completed so that they remained in service.
- Reservists
return to civilian life almost immediately and the discharge PULHEEMS is the last
chance effectively to detect ASD/PTD.
- Regulars
applying for discharge shortly after combat similarly require examination with
a high index of suspicion, even higher in that applying for discharge in itself
may be a manifestation of avoidant behaviour or PTD generally.
- The
Defendants also owed a duty to personnel and society to ease them back into civilian
life, as they should have done back from theatre into peacetime service life.
- PULHEEMS
and the system of referral should have been applied no less vigorously before
discharge than at any other time and the Claimants rely on the full details set
out under the rubric Detection.
- In
the event of detection of ASD/PTD, personnel should have been advised and offered
treatment in the first instance before discharge.
- In
any event, a full clinical history, including combat experience, clinical description,
and treatments attempted, their result and suggestions for future treatment
should have been sent to the civilian G.P. and every effort made to effect specialist
referral into the NHS where necessary, at Consultant level with suitable skills
and experience.
- Whether
or not PTD was detected, personnel and their families should have been provided
with detailed information reiterating the mental map to help them cope with PTD,
or in the event that they later developed PTD, and the Claimants repeat the educational
elements under points 3 [4]-[6] of the rubric ‘Treatment’ with particular reference
to the need to seek help early, to avoid alcohol and how and to get the most out
the system as veterans in terms of preferential treatment. They should have been
provided with details through which they, and civilian practitioners, could have
obtained advice from specialist military psychiatrists and psychologists where
necessary.
Stephen
Irwin QC
James
Rowley
Jonathan
Richards
10
June 2002
APPENDIX
4 - SCHEDULE of SUCCESSIVE DIRECTORS OF ARMY PSYCHIATRY and PROFESSORS OF MILITARY
PSYCHIATRY, later DEFENCE PSYCHIATRY
Year |
Prof Military Psych/Prof
Def Psych | DA
Psych/Dir Def Psych |
mid
1960s to early 1970s (?) | unknown |
Major General McGhie |
1976 |
Brigadier P.Douglas
Wickenden | Brigadier
Murphy |
1977 |
Wickenden |
Brigadier Steuart |
1978 |
Wickenden to June,
then Colonel Peter Abraham | Steuart |
1979 |
Abraham |
Steuart |
1980 |
Abraham |
Steuart to April,
then Wickenden |
1981 |
Abraham |
Wickenden |
1982 |
Abraham |
Wickenden |
1983 |
Abraham |
Wickenden |
1984 |
Abraham to April,
then Wickenden | Wickenden
to April, then Abraham (promoted
to Brigadier on his appointment) |
1985 |
Wickenden |
Abraham |
1986 |
Wickenden to January,
then Abraham, Wickenden as ‘Professor Emeritus’ until 1988 |
Abraham |
1987 |
Abraham |
Abraham |
1988 |
Abraham |
Abraham |
1989 |
Abraham |
Abraham |
1990 |
Abraham |
Abraham |
1991 |
Abraham |
Abraham |
1992 |
vacant after January
1992 | Abraham
nominally only until 31 January, then Colonel Robert Anderson |
1993 |
vacant |
Anderson |
1994 |
vacant |
Anderson |
1995 |
vacant |
Anderson |
1996 |
vacant |
Anderson (becoming
in this year Director of Defence Psychiatry) |
1997 |
vacant |
Anderson |
1998 |
vacant |
Anderson |
1999 |
Late in this year,
Lieutenant Colonel Ian Palmer becomes Professor of Defence Psychiatry |
Anderson |
2000 |
Palmer |
Anderson |
2001 |
Palmer |
Anderson |
APPENDIX
5 – CLAIMANTS’ WITNESSES
Lay
Prof
Arthur Blank | Day
18 |
Dr
Avraham Bleich | Day
17 |
Dr
Sylvia Blunden | Day
12 |
Mr
John Bolland | Read |
Mrs
Yvonne Burns-Iszatt | Read |
Mr
Michael Cartmell | Read |
Mr
Jonathan Chadburn | Read |
Mr
Denzil Connick | Day
10 |
Mr
James Couglan | Read |
Mr
Graham Cox | Day
20 |
Mr
David Cross | Read |
Mr
Kelvin Davies | Read |
Mr
Terence Davies | Read |
Dr
Martin Deahl | Day
13 |
Mr
Patrick Doherty | Read |
Mr
Kevin Doughty | Read |
Mr
Barry Donnan | Day
20 |
Mr
Christopher Duggan | Days
20 & 37 |
Mr
Steven Duggan | Day
21 |
Dr
Pierre Dan Enoch | Days
17 & 18 |
Mr
Tobin Elliott | Read |
Mr
David Ford | Read |
‘Mr
H’ | Day
20 |
Dr
Peter Higson | Read |
Mr
Stephen Hopkins | Read |
Mr
Stephen Hughes | Day
5 |
Dr
Richard Jolly | Day
9 |
Ms
Kathryn Lamb | Read |
Colonel
Ron Levy | Day
16 |
Mr
Christopher Lund | Read |
Mr
Timothy Lynch | Read |
Mr
Christopher McCormick | Day
21 |
Mr
Mark McCormick | Day
21 |
Mr
Lee McGrady | Read |
Mr
Hugh McManners | Day
8 |
Dr
Ranald Mackinnon | Days
10 & 11 |
Ms
Brenda Madden | Read |
Dr
Shabtai Noy | Day
19 |
Dr
Morgan O’Connell | Days
6 & 7 |
Ms
Terry O’Hare | Read |
Dr
Roderick Orner | Read |
Revd
Frank Parkinson | Day
12 |
Mr
Peter Pocock | Day
13 |
Mr
Alvin Pritchard | Read |
Mr
Colin Purcell-Lee | Read |
Mr
Stephen Roberts | Day
22 |
Dr
Robin Short | Days
14 & 15 |
Dr
Gordon Turnbull | Days
22 & 23 |
Expert
Dr
Oscar Daly | Day
48 |
Prof
Jonathan Davidson | Day
51 |
Dr
Martin Deahl | Days
52 & 53 |
Prof
Edna Foa | Days
54 & 55 |
Dr
Christopher Freeman | Days
45, 46 & 47 |
Prof
Matthew Friedman | Read |
Dr
Peter Higson | Read |
Prof
Terry Keane | Read |
Prof
Zahava Solomon | Days
49 & 50 |
APPENDIX
6 – DEFENDANT’S WITNESSES
Lay
Dr
Peter Abraham, Brigadier Retired.
Colonel
Robert Anderson
Dr
Martin Baggaley
Sir
Peter Beale, Lt Gen Retired
Colonel
Gregory Belenky
Mr
David Chaundler OBE, Brigadier Retired
Revd
David Cooper
Mrs
Paula Crick
Lt
Col Tony Davies MBE
Colonel
Douglas Gamble
Captain
Chelsea Hall (read only)
Dr
John Jenkins
Major
General Louis Lillywhite (Brigadier at time of the trial)
Dr
Stephen O'Brien
Sir
David Ramsbotham, General Retired
Sir
Alan Reay, Lt Gen Retired
Mr
John Rickett CBE, Brigadier Retired
Mr
David Ross CBE, Brigadier Retired
Mr
Keith Spacey CB OBE, Major General Retired
Colonel
James Stokes
Colonel
Verge
Colonel
Michael Von Bertele OBE
Major
Gary Walker
Colonel
Bryan Watters
Dr
P. Douglas Wickenden, Brigadier Retired
Expert
Associate
Professor Richard Bryant
Professor
Robert Hales
Dr
David Marlowe
Dr
Stephen O'Brien
Professor
Roger Pitman
Professor
Arieh Shalev
Professor
Simon Wessely
Professor
Joseph Zohar
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