MALCOLM NEW V MINISTRY OF DEFENCE [2005] EWHC 1647 (QB)
FACTS:-
The Claimant had committed to a military career from very early on in life. He was promoted to NCO at a very early age and demonstrated outstanding qualities of leadership. He received an award of the British Empire Medal in the New Year’s Honours List. He returned from his fifth tour of duty in Northern Ireland and was sent on leave. He moved with his second wife to Colwyn Bay, where he started up an industrial window cleaning business. He gave up that business about 18 months later following a fall from a ladder after a bad flashback. By early 1996, his behaviour was becoming increasingly erratic. He experienced panic attacks and was drinking heavily.
In June 1996 the Claimant and his wife moved to Bangor where he began working for his brother-in-law as a taxi driver. However after two months, he became paranoid, convinced that he was being followed by the IRA and he had suicidal thoughts. He then disappeared for four months and slept rough in London. In March 1997 he was referred to a psychiatrist who made a diagnosis of PTSD. He was again offered work by his brother in law, but that came to an end because of his unreliability.
In September 1997 he appeared in court following a brawl with his wife. In early 1998 he was an in-patient at Audley Court. In February 1998, he was awarded a war pension, which included a lump sum. He bought a taxi to start work again, but found it impossible to continue with the work.
In September 2000, his wife became the landlady of a public house in Bangor, and he worked with her. By May 2001, his wife could not long tolerate his erratic, obsessive and occasionally aggressive and violent behaviour and so they separated. In June 2001, he attempted to commit suicide.
He was re-admitted to a psychiatric institution, finally leaving in November 2002. In April to June 2003 he worked as a barman and then later as a night porter. In September 2003 he began work on a voluntary basis for a dog handler and trainer but he left after his employer gave his staff a dressing down for leaving a gate open. That employer later gave a witness statement. The Claimant’s most recent attempt at work was with a security firm in Iraq in 2005, but this did not work out.
HELD:-
Mr Justice Owen said that it was no exaggeration to say that the Claimant was a shadow of his former self. This was supported by the Defendant’s expert, Dr Jacobson. There was agreement between the parties’ psychiatric experts that the Claimant was likely to have a recurrent psychiatric disorder. In relation to social and personal functioning, the prognosis was guarded and his chequered work pattern was likely to persist.
Mr Justice Owen addressed the following questions:-
In relation to this question, the experts were agreed that if the Claimant had been referred for assessment and treatment at that stage, he would probably have been treated with anti-depressants and Cognitive Behavioural Therapy.
The Defendant’s expert, Dr Jacobson drew attention to the fact that when pressed by his wife to seek treatment, the Claimant attempted to strangle her. However when the Claimant did begin to undergo treatment in 1997, the records revealed regular and consistent attendance at appointments. Justice Owen was satisfied that given his strong sense of duty, the Claimant would have co-operated fully if referred for treatment in mid 1993.
It was common ground between the experts that treatment at that stage would have been successful, and that there would have been an improvement in the Claimant’s condition if not a full resolution of his symptoms. However they disagreed on the role of alcohol abuse and also as to the long term outcome. Dr Veasey said that his approach was to treat the alcohol abuse as part and parcel of the Post Traumatic Stress Disorder. Justice Owen considered the evidence adduced in the trial of the generic issues, which demonstrated clearly that abuse of alcohol is commonly associated with the development of PTSD in those serving in the armed forces, and that marital discord is frequently the consequence of the development of PTSD. Justice Owen would favour Dr Veasey’s view but he did not consider that divergence of view was of importance in this context. Had the Claimant been referred for treatment in 1993, the complexity of his condition and its aetiology would have been revealed and the appropriate treatment initiated.
However there was a difference in relation to the long term outcome. Dr Veasey felt that with the right treatment, the Claimant would have been able to lead a stable life. Dr Jacobson considered that in the long term, the outcome would not have been any different. He pointed to the fact that the Claimant had a period of approximately one year of good occupational function after he was sent home on leave at the end of August 1993. Then after a year his condition began to deteriorate. Dr Jacobson argued that there must have been a spontaneous recovery from the condition from which the Claimant was suffering, but although treatment would have led to a short term improvement, it would not have resulted in his being better off in the long term.
Justice Owen was not persuaded by this analysis. The effect of sending the Claimant home on leave was to relieve the stress of continued service, but this was relatively short-lived. Treatment at that stage would have revealed and addressed the underlying problems.
The Defendant also argued that the Claimant was a vulnerable personality and would have developed psychiatric disorder in any event. The Claimant had had a difficult upbringing, a mother who drank heavily, divorced parents and some symptoms of “conduct disorder” as a child including a history of petty theft and arson. However against those factors must be set the Claimant’s outstanding record in his chosen career. Justice Owen was not persuaded that he was likely to have developed a psychiatric disorder in any event.
In 1992, some months before his fifth tour of duty in Northern Ireland, the Claimant applied to be considered for selection for redundancy. He wrote a letter explaining that he had recently got married, and that his brother in law had asked him and his wife to become a partner in his taxi business. That application was refused by the Ministry of Defence in 1993 and the Claimant then gave 12 months notice to leave the army.
The Claimant said in evidence that he had concealed the real reason for making the application for redundancy, namely that he could not face returning to Northern Ireland and holding a command. There was psychiatric evidence to the effect that the Claimant was suffering serious psychiatric problems in the four year interval between his fourth and fifth tours of duty.
Justice Owen found that the Claimant’s explanation for his application to leave the army was convincing. Therefore had the Claimant’s condition been diagnosed and treated whilst still in the army, then in his judgment, it was probable that he would have completed 22 years of service. He accepted the evidence of Dr Veasey, based upon his considerable experience of the practice of psychiatry in a military context, that had the Claimant remained in the army he would have achieve promotion in due course to Warrant Office Class 1. However Justice Owen was not persuaded that he would have stayed on for a further two years in recruiting, since he had worked as a recruiting officer between June 1989 and June 1992.
General Damages
Justice Owen assessed general damages at £50,000. With treatment the Claimant would have been free of the symptoms of PTSD, but instead he was severely affected by PTSD. The case fell within the upper end of the Judicial Studies Board Guidelines.
Past loss of earnings and pension loss
The Claimant would have withdrawn his notice and would have been promoted in due course to WO(1) on the 1st March 1995, to WO(2) in 1997/8 and would have been discharged at that rank at the 22 year point on 7th November 1999.
Following his discharge, the Claimant would have found employment at a comparable level to his army salary from November 1999, rising to a net income of £20,000 at present.
Submissions were invited in relation to the calculation of past loss of earnings and pension.
Future loss of earnings
The Claimant had a residual earning capacity. This was £5,000 per annum, and therefore the multiplicand for future loss of earnings was £15,000. The Claimant would have continued to work until the age of 65 and the multiplier could be calculated accordingly.
Treatment costs
The experts agreed that the Claimant would need to be admitted for periods totalling an average of one month per annum for the foreseeable future.
Care
The claim for care, support and supervision from friends and ex colleagues had not been made on the evidence.
FACTS:-
The Claimant had committed to a military career from very early on in life. He was promoted to NCO at a very early age and demonstrated outstanding qualities of leadership. He received an award of the British Empire Medal in the New Year’s Honours List. He returned from his fifth tour of duty in Northern Ireland and was sent on leave. He moved with his second wife to Colwyn Bay, where he started up an industrial window cleaning business. He gave up that business about 18 months later following a fall from a ladder after a bad flashback. By early 1996, his behaviour was becoming increasingly erratic. He experienced panic attacks and was drinking heavily.
In June 1996 the Claimant and his wife moved to Bangor where he began working for his brother-in-law as a taxi driver. However after two months, he became paranoid, convinced that he was being followed by the IRA and he had suicidal thoughts. He then disappeared for four months and slept rough in London. In March 1997 he was referred to a psychiatrist who made a diagnosis of PTSD. He was again offered work by his brother in law, but that came to an end because of his unreliability.
In September 1997 he appeared in court following a brawl with his wife. In early 1998 he was an in-patient at Audley Court. In February 1998, he was awarded a war pension, which included a lump sum. He bought a taxi to start work again, but found it impossible to continue with the work.
In September 2000, his wife became the landlady of a public house in Bangor, and he worked with her. By May 2001, his wife could not long tolerate his erratic, obsessive and occasionally aggressive and violent behaviour and so they separated. In June 2001, he attempted to commit suicide.
He was re-admitted to a psychiatric institution, finally leaving in November 2002. In April to June 2003 he worked as a barman and then later as a night porter. In September 2003 he began work on a voluntary basis for a dog handler and trainer but he left after his employer gave his staff a dressing down for leaving a gate open. That employer later gave a witness statement. The Claimant’s most recent attempt at work was with a security firm in Iraq in 2005, but this did not work out.
HELD:-
Mr Justice Owen said that it was no exaggeration to say that the Claimant was a shadow of his former self. This was supported by the Defendant’s expert, Dr Jacobson. There was agreement between the parties’ psychiatric experts that the Claimant was likely to have a recurrent psychiatric disorder. In relation to social and personal functioning, the prognosis was guarded and his chequered work pattern was likely to persist.
Mr Justice Owen addressed the following questions:-
- What treatment would the Claimant have received?
In relation to this question, the experts were agreed that if the Claimant had been referred for assessment and treatment at that stage, he would probably have been treated with anti-depressants and Cognitive Behavioural Therapy.
- Would he have engaged with the treatment?
The Defendant’s expert, Dr Jacobson drew attention to the fact that when pressed by his wife to seek treatment, the Claimant attempted to strangle her. However when the Claimant did begin to undergo treatment in 1997, the records revealed regular and consistent attendance at appointments. Justice Owen was satisfied that given his strong sense of duty, the Claimant would have co-operated fully if referred for treatment in mid 1993.
- What would the outcome of the treatment have been, both in the short and long term?
It was common ground between the experts that treatment at that stage would have been successful, and that there would have been an improvement in the Claimant’s condition if not a full resolution of his symptoms. However they disagreed on the role of alcohol abuse and also as to the long term outcome. Dr Veasey said that his approach was to treat the alcohol abuse as part and parcel of the Post Traumatic Stress Disorder. Justice Owen considered the evidence adduced in the trial of the generic issues, which demonstrated clearly that abuse of alcohol is commonly associated with the development of PTSD in those serving in the armed forces, and that marital discord is frequently the consequence of the development of PTSD. Justice Owen would favour Dr Veasey’s view but he did not consider that divergence of view was of importance in this context. Had the Claimant been referred for treatment in 1993, the complexity of his condition and its aetiology would have been revealed and the appropriate treatment initiated.
However there was a difference in relation to the long term outcome. Dr Veasey felt that with the right treatment, the Claimant would have been able to lead a stable life. Dr Jacobson considered that in the long term, the outcome would not have been any different. He pointed to the fact that the Claimant had a period of approximately one year of good occupational function after he was sent home on leave at the end of August 1993. Then after a year his condition began to deteriorate. Dr Jacobson argued that there must have been a spontaneous recovery from the condition from which the Claimant was suffering, but although treatment would have led to a short term improvement, it would not have resulted in his being better off in the long term.
Justice Owen was not persuaded by this analysis. The effect of sending the Claimant home on leave was to relieve the stress of continued service, but this was relatively short-lived. Treatment at that stage would have revealed and addressed the underlying problems.
The Defendant also argued that the Claimant was a vulnerable personality and would have developed psychiatric disorder in any event. The Claimant had had a difficult upbringing, a mother who drank heavily, divorced parents and some symptoms of “conduct disorder” as a child including a history of petty theft and arson. However against those factors must be set the Claimant’s outstanding record in his chosen career. Justice Owen was not persuaded that he was likely to have developed a psychiatric disorder in any event.
- When would the Claimant have left the army following such treatment?
In 1992, some months before his fifth tour of duty in Northern Ireland, the Claimant applied to be considered for selection for redundancy. He wrote a letter explaining that he had recently got married, and that his brother in law had asked him and his wife to become a partner in his taxi business. That application was refused by the Ministry of Defence in 1993 and the Claimant then gave 12 months notice to leave the army.
The Claimant said in evidence that he had concealed the real reason for making the application for redundancy, namely that he could not face returning to Northern Ireland and holding a command. There was psychiatric evidence to the effect that the Claimant was suffering serious psychiatric problems in the four year interval between his fourth and fifth tours of duty.
Justice Owen found that the Claimant’s explanation for his application to leave the army was convincing. Therefore had the Claimant’s condition been diagnosed and treated whilst still in the army, then in his judgment, it was probable that he would have completed 22 years of service. He accepted the evidence of Dr Veasey, based upon his considerable experience of the practice of psychiatry in a military context, that had the Claimant remained in the army he would have achieve promotion in due course to Warrant Office Class 1. However Justice Owen was not persuaded that he would have stayed on for a further two years in recruiting, since he had worked as a recruiting officer between June 1989 and June 1992.
General Damages
Justice Owen assessed general damages at £50,000. With treatment the Claimant would have been free of the symptoms of PTSD, but instead he was severely affected by PTSD. The case fell within the upper end of the Judicial Studies Board Guidelines.
Past loss of earnings and pension loss
The Claimant would have withdrawn his notice and would have been promoted in due course to WO(1) on the 1st March 1995, to WO(2) in 1997/8 and would have been discharged at that rank at the 22 year point on 7th November 1999.
Following his discharge, the Claimant would have found employment at a comparable level to his army salary from November 1999, rising to a net income of £20,000 at present.
Submissions were invited in relation to the calculation of past loss of earnings and pension.
Future loss of earnings
The Claimant had a residual earning capacity. This was £5,000 per annum, and therefore the multiplicand for future loss of earnings was £15,000. The Claimant would have continued to work until the age of 65 and the multiplier could be calculated accordingly.
Treatment costs
The experts agreed that the Claimant would need to be admitted for periods totalling an average of one month per annum for the foreseeable future.
Care
The claim for care, support and supervision from friends and ex colleagues had not been made on the evidence.