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		Neutral Citation Number: [2003] EWHC 1134 (QB)
		Case No: HQ 0101422

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

21 May 2003

B e f o r e :

THE HONOURABLE MR JUSTICE OWEN
____________________

Between:

	MULTIPLE CLAIMANTS	Claimant
	- and -
	THE MINISTRY OF DEFENCE	Defendant

____________________

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
____________________

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 1^st 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, 11January, 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 1^st 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 1^st 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 1^st 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 23May 1995 he was discharged in the rank of Lance Sergeant with an exemplary discharge note.

3.2 On 12May 1982 he was deployed with the 1^st 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 11February 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 2^nd 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 2December 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 10^th 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 16October 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 7April 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 31January 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 -

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 11February 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 18^th 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 21August 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 11July 1962. On 14August 1978 he enlisted in the Royal Artillery aged 16. Following his basic training he joined T battery, one of three fighting batteries in 12^th 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 15December 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 21May 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 19January 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 14February 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 13June 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 13January 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 5March 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 23November 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 10March 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 15February 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 19June 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 29September 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 1^st 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 5September 1960. He enlisted in the Parachute Regiment on 28December 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 29March 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, 3Para. 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 28March 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 28March 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 12January 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 28September 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 27November 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 17February 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 29March 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 18September 1980 his weight was recorded as 65 kg, but when he was next weighed following the Falklands war on the 18September 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 23August 1990, recorded on 3December 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 19April 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 25^th 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 8November 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 30^th 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 30November 1990 to 22 December 1990 and from 30August 1991 to 20September 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 10June 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 16March 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, 2^nd 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."
"3^rd 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."
"7^th 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 6September. 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 29^th 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 18October 1971. He enlisted in the Royal Artillery on 7June 1988 and was discharged on 26 April 1992. On 2January 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 31March 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 29August 1991, five months after his return from Operation Granby, the Claimant was caught in possession of cannabis. On 18September 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 21February 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 1March 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, 2^nd Lieutenant Fraser wrote to the Claimant’s parents in the following terms -

"3rd September 1991
"Letter to Lambert’s mother and step-father from 2^nd 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 13^th 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 18^th 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 23April 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 2^nd 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 13August 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 5November 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 18October, 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 5December 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 11^th 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 17March 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 15^thMay 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