Hibbert v The Ministry of Defence [2008] EWHC 1526 (QB)

[2008] EWHC 1526 (QB)Case No HQ02X03240
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/07/2008
Before
THE HONOURABLE MR JUSTICE OWEN
Between
STEPHEN MICHAEL HIBBERTClaimantTHE MINISTRY OF DEFENCEDefendant
Guy Mansfield QC and Jonathan Richards (instructed by Linder Myers Solicitors) for ClaimantRobert Jay QC and Jonathan Glasson (instructed by Treasury Solicitors) for DefendantHearing Hearing dates: 6, 7, 8 and 12 May 2008
Judgment
[1]The claimant, Stephen Michael Hibbert, served in the army from 24 August 1984 until his medical discharge on 25 February 1998, save for a short period from March to July 1989 when he was in the army regular reserve. In May 1994 he was referred to Dr Martin Baggaley, who was then a consultant psychiatrist in the Royal Army Medical Corps. The case in essence is that Dr Baggaley was negligent in his assessment and treatment of the claimant at consultations on 12 May and 8 June 1994.[2]The factual background The claimant, who was born on 16 November 1967, enlisted into the Worcestershire and Sherwood Foresters Regiment (1 WFR) on 24 June 1984 at the age of 17. Between 25 July 1989 and 3 March 1991 he served in Northern Ireland. During the second half of that tour of duty he was asleep in the accommodation block of a border check-point at Strabane when it came under mortar attack by the IRA. A mortar detonated on the roof of the block causing it to collapse. The claimant, not surprisingly, was shocked and remembers stuttering for about an hour after the attack.[3]In October 1991 the claimant passed the Lance Corporal cadre to a good standard and on 10 January 1992 was duly promoted to Lance Corporal. In the autumn of 1991 he also achieved an HGV qualification.[4]On 14 January 1992 he took a temporary transfer to the 22nd Cheshire regiment (the Cheshires). The posting was as an Armed Infantry Mechanised Instructor. His evidence, which I accept, was that he saw the posting as a way of obtaining additional skills and qualifications, and thereby improving his prospects of promotion. From 12 November 1992 to 15 May 1993 he served with the Cheshires as part of the UN Force in Bosnia. In the course of that tour of duty he witnessed horrific sights, and was exposed to personal danger from small arms fire and mortar fire. At one stage local combatants were fighting in and around the village of Vitez, and the claimant and his platoon came under fire when they moved their vehicles to intervene. Their standing orders did not permit them to return fire. The claimant witnessed unarmed civilians, including women and children, being shot, but by reason of their standing orders he and his colleagues were powerless to prevent the killing. In the aftermath the claimant and his platoon were ordered to recover the bodies of civilians. He handled and carried a number of corpses, including women and children, some of which had been mutilated. He was exposed to similar experiences on other occasions, and wrote a graphic account of his experiences whilst undergoing treatment at the Duchess of Kent hospital in October 1996, a copy of which was annexed to his witness statement.[5]On his return from Bosnia the claimant was recalled to 1WFR. He found himself back amongst his former friends, but none had served in Bosnia. Thus although he knew them much better than the soldiers with whom he had served in the Cheshires in Bosnia, none understood what he had gone through as they had not undergone similar experiences. He therefore felt very isolated. He requested a permanent transfer to the Cheshires; but his request was refused, a refusal that caused him to feel resentful. The claimant says that when he returned from Bosnia he began to experience psychological problems, but at the time did not understand what was wrong with him. He became argumentative with colleagues and with his girlfriend, ending a two year relationship with her because he wanted to be left alone. He says that in the summer of 1993 he began to experience nightmares on a regular basis relating to the events that he had witnessed in Bosnia and also experienced flashbacks about some of the episodes. They provoked feelings that were overwhelming and very distressing. Furthermore he failed the Basic Fitness Test for the first time.[6]On 21 March 1994 the claimant was sent on a second tour of duty to Northern Ireland. He says that he did not feel mentally and emotionally prepared for such a tour, knowing the dangers that he could face. Within days of arriving in Northern Ireland he broke down. He was based in Crossmaglen in an advance party carrying out reconnaissance. One of his colleagues on the advance party was Lance Corporal Bean, a colleague from his first Northern Ireland tour who had also been in the border check-point at Strabane when it had come under attack. It appears that Lance Corporal Bean experienced a nightmare about the mortar attack and discussed it with the claimant. As the claimant puts it, Lance Corporal Bean’s nightmare “triggered something inside my mind”. His thoughts and feelings about Bosnia surfaced and came to dominate his thinking. He rapidly became dysfunctional and a helicopter had to be called in to evacuate him from the advance party. His commanding officer, Major Field, quickly became aware that he was in a highly disturbed state and arranged for his evacuation to the medical centre at Besbrook Mill where he was seen by a Doctor, Major Cross. According to the claimant Major Cross was sympathetic, “… she listened to what I had to saywhen I talked at length about the traumatic events that I had witnessed in Bosnia.” He says that Major Cross attempted to reassure him telling him not to worry and that “we know what to do.” Major Cross referred the claimant to Sergeant Cummins, a community psychiatric nurse who sent him home on leave for 2 weeks. On his return he was met at East Midland Airport by his mother. She was shocked at his condition describing it in her witness statement in the following terms:
“He was a shadow of himself and the person I had known a few months before. He was in an extremely distressed state. He was completely different, totally withdrawn and obviously upset. He would not talk; he would hide away in his room and was withdrawn.”
[7]The claimant returned to Northern Ireland after the home sick leave, but was immediately returned to Tidworth barracks to join the regiment’s rear party under Captain Seddon. At the same time Major Cross referred him to the psychiatry department at Tidworth for assessment. In the clinical notes in the F Med 7, Major Cross recorded the reason for hispresentation to his platoon commander in Crossmaglen, namely that “ … prior to going out on the ground, he felt so nervous that he felt it was a liability. He was also ‘petrified’ of being mortared.” She also made the following entries which are of particularly relevance:
“L-Cpl Hibbert returned to 1WFR in Nov/Dec after being with the Cheshires for the previous year. He was with them in Bosnia. He describes vividly putting bodies in the back of an APC, being mortared, and not being able to retaliate in any way. He thought that he coped with it very well, and that it wasn’t a problem. However he is scared of staying in Ireland. He feels he should go back to England because in England he doesn’t have a problem and therefore everything is ok. I have suggested that this is merely walking away from the problem and the answer is not to go back to Tidworth and merely forget about it. He requested to stay with the Cheshires in November, but this was turned down. He feels quite resentful about this. He isnow talking about signing off and therefore getting rid of the problem that way. Prior to all this L-Cpl was a good soldier. I enclose an F Med 8 from his O.C. in Crossmaglen. I feel this man is suffering from PTSD which has reared its head when he has been put in another situation where being mortared is a likely proposition. I would value your assessment and help for this man; who I feel has a genuine problem.”
[8]The claimant was seen by Dr Baggaley at the psychiatric outpatients department at Delhi Barracks, Tidworth on 12 May 1994. The clinical notes that he made on that occasion cannot be found. Thus the only contemporary evidence of the consultation is contained in Dr Baggaley’s reply to Major Cross in the F Med 7. It is a record that is at the heart of this claim, and it is therefore necessary to set out its contents in full. “12.05.94 Dear Major Cross Thank you for your very helpful letter about LCpl Hibbert who I saw today in M.R.S. Tidworth. As you say he describes a tense fear and anxiety once getting out to Northern Ireland and having to go out on patrol. He has been in the Army for 9 years and has done a 2½ year tour in Northern Ireland possibly 1989/91 and then as you say was attached to the Cheshires and went out with Op Granby 1. Whilst out in Bosnia he was exposed to a large number of extremely traumatic events and suffered a prevailing sense of being helpless. Whilst in Northern Ireland on his previous tour he was in Strabane when it was mortared and the accommodation was destroyed. At the time he doesn’t think he was affected by it but now he is not so certain. Likewise when he came back from Bosnia he didn’t feel he had been affected. He certainly describes no symptoms typical of a Post Traumatic Stress Disorder. However when he spoke to yourself and also to somebody else around the province in Northern Ireland he became quite distressed and tearful about it. His view he said is that he has had one operational tour too many and further he hasn’t had enough time to re-adjust following coming back from Bosnia. Certainly he feels quite resentful that his request to remain with the Cheshires and to be posted elsewhere were not taken seriously. His background is fairly unremarkable. He was born and brought up in Derby and both his parents are in their 50’s and alive. He has one elder sister aged 27. He denied any past psychiatric history or relevant family psychiatric history. He describes his upbringing as stable, steady and happy. He certainly appears to have enjoyed his career prior to Bosnia and has been a generally successful fairly thrusting NCO. MENTAL STATE EXAMINATION He presented as a casually but tidily dressed young man who was slightly disrespectful although not in an offence way. His speech was normal in rate, form and volume and his mood was objectively and subjectively normal. He did however become quite quiet and distressed when thinking about Bosnia. OPINION AND FURTHER MANAGEMENT I do not feel he is suffering from Post Traumatic Stress Disorder as defined in DSM3R. That is not to say however that he has not been profoundly affected by his experiences particularly in Bosnia but also perhaps his emergency tour in Northern Ireland. Certainly I think he has seen and experienced a very dehumanising events (sic) that have profoundly affected his outlook on life. I think he sees the operations in Bosnia and to some extent as pointless (sic) and he has rather had enough. He plans to leave the Army over the next couple of years when he has paid off his debts. He denied feeling upset or shamed of coming back from Northern Ireland feeling that he has already done his bit. My feeling is that he has indeed experienced a changed outlook on life as a consequence of Bosnia and that in his current state of mind he should not return to Northern Ireland for this tour. However it is possible that say in 6 months to a years time he may be able to do an operational tour although I would suggest that he be reviewed prior to this taking place. There remains a question about what one should do about his Bosnia experience. You could make an argument that he should be given time and the opportunity to talk about what he has been through to try and make some sense of it. I offered this to him but he was very unhappy and reluctant to do so. If he was suffering markedly from florid symptoms of PTSD I would be more aggressive in pursuing this option. However as he tells he is actually quite happy at the moment I accept his decision. However I have said to him that if problems reoccur I will be very happy to offer treatment. I have not arranged a further review although would be happy to do so if necessary.” MENTAL STATE EXAMINATION

OPINION AND FURTHER MANAGEMENT

[9]On the same day Dr Baggaley wrote in similar terms to the claimant’s commanding officer on the F Med 8a form saying that – “I reviewed this young man in psychiatric out-patients on 12 May 1994. As you know he has done on 21/2 year tour in Northern Ireland in Strabane and a further operational tour in Bosnia and Op Granby 1. Prior to his recent experiences in Northern Ireland this year he appears to have an exemplary record and appears to be a well thought of NCO. I could not find any evidence of any psychiatric disorder. Having said that I think that he experienced some true horror whilst in Bosnia which has profoundly affected his outlook on life. I think he has seen death at first hand and as a consequence now finds going on patrol in Crossmaglen where there is a threat of death too much to cope with. I do not feel that this is cowardice as he has taken as much as he can cope with in a relatively short period of time. I therefore do not think that he should return to Northern Ireland on this tour. It is possible that his motivation and resolve for (sic) with the passage of time. However my suspicion is that he had probably had enough and will probably leave the Army in due course. He is not exhibiting any florid symptoms of a Post Traumatic Stress Disorder but I did offer him the chance of talking through his experience in Bosnia. He felt at this stage that this was not appropriate which I accept to some degree but suggested that he can come back if he feels this necessary. He is an example of one of the problems of the new look Army in which soldiers are being asked to do operational tour after operational tour and I think as was found in the Second World War people only have so much reserves of resolve to face death and danger. Every man reaches a point where I think he has had enough and I think LCpl Hibbert found his in Northern Ireland. I have not arranged to see him again but would be happy to do so if requested.”[10]Four days after seeing Dr Baggaley the claimant went AWOL. However he decided to return to camp, but crashed his car on the M5 motorway as he was returning. It appears that he crashed into the central reservation. He was borderline when breathalysed at the scene.[11]On 19 May Dr Baggaley made the following note in the F Med 7 – “I have had conversations with LCpl Hibbert and his civilian GP Dr Ward. I understand that on Monday last 16 May he crashed his car whilst at home on leave. As a consequence of this he was extremely shaken up and therefore felt unable to return to the unit. He has seen Dr Ward who has signed him off for two weeks from the accident. I have discussed this with both Dr Ward and Capt Sedden (sic) and we all agree it is essential that he returns to duty as soon as this sick leave expires.”[12]Following the crash there were telephone conversations between the claimant and his commanding officer, Captain Seddon. The claimant says that in the course of the last of the telephone conversations he told Captain Seddon that his unit had mentioned the possibility of his being posted to the Army Youth Training centre (AYT) in Lichfield. He said that he wanted such a posting in order to get as far away from the Army as possible. He says that Captain Seddon explained that if he wanted a transfer to AYT he would have to see Major Baggaley again.[13]The claimant saw Major Baggaley again on 8 June 1994. Again the notes of the consultation cannot be found, but as in the case of the initial consultation Dr Baggaley made a report on it in the F Med 7. Again it is necessary to set out his record in full:
“I reviewed LCpl Hibbert again following his recent road traffic accident. He seems to have recovered from the shock and distress of writing off his new car. Again I could find no evidence of any significant Post Traumatic Stress Disorder following this incident. Certainly at interview LCpl Hibbert seemed particularly bright and breezy. He was very cheerful and extremely casually dressed although there was no abnormality in elevation of mood or anything like that. He is keen to be posted to the Army Youth Training Team in Depot Lichfield which I think would be quite a reasonable option. Again I don’t think he is suffering from any formal psychiatric disorder other than what I would describe a change (sic) attitude to life and in particular the Army following his experiences on a recent operational tour. It is possible that an experience away from the unit might allow his attitude to the Army to improve. However somehow I doubt it and I suspect in the relatively near future he will opt to leave. I have not arranged to see him again but would do so if requested.”
[14]In August 1994 the claimant was transferred to AYT Lichfield where he remained until his admission to the Duchess of Kent Military Hospital at Catterick Garrison in October 1996. During that period the claimant says that he was drinking heavily to blot out his memories. On 28 April 1995 he was referred to a hospital in Gwynedd complaining of pains in his stomach and was diagnosed as suffering from alcoholic gastritis.[15]On 24 January 1996, encouraged by his then girlfriend, the claimant consulted his local GP after suffering from headaches. The GP made the following note:
“Anxiety and feeling scared started on second tour of Ulster, was hyper-active, lacking sleep, weepy and exercising himself to get to sleep. He referred to being mortared in Ulster and having bad experiences in Bosnia; relationship split after Bosnia tour. No treatment … bad 2 years.”
The GP referred him to Dr J Robertson, a consultant psychiatrist at the Kidderminster General Hospital who first saw him on 7 February 1996. In his letter to the GP dated 8 February Dr Robertson summarised the history given to him by the claimant and gave his opinion in the following terms:
“I am not entirely sure what is going on here. Stephen does not meet the full criteria for post traumatic stress disorder, as the Army Psychiatrist has already informed him. However, cumulative tension and distress appear to have caught up with him and probably rendered him unfit for further service. I have as yet no clear impression of his previous personality but he says that he used to think of himself as hard and able to take anything; now his composure has collapsed and he feels very vulnerable. He has no doubt whatever that if he had the money to pay off his debt and leave the Army without financial consequences he would be almost entirely well: his girlfriend Rachel seems more doubtful. It is really quite difficult to know how disabled this man is and how much one should collude with the sick role in his case. There may be a manipulative element somewhere in it. I have arranged to see him at least once more, leaving him unmedicated for the time being.”
[16]Dr Robertson saw the claimant on one further occasion, reporting to his GP on 7 March 1996 that “He seems to have worked out a strategy for eeking out his days in the Army without being challenged medically or through disciplinary channels. To be honest, I do not think there is anything more I can do as a civilian psychiatrist and, after discussion, he tended to agree. I am therefore discharging him to your care at this juncture without any medication but will be prepared to see him again should further difficulties arise.”[17]However the claimant’s GP then referred him to Kidderminster General Hospital where he was seen by a clinical psychologist in training, M/s Amanda Lillie. Following an initial appointment on 15 May she reported to the GP that he was currently experiencing “flashbacks, headaches, tearfulness, aggression and dizziness”, and that he identified the cause of such symptoms as his traumatic experiences in Northern Ireland and Bosnia. The report also contains the following passage:
“He has not talked about his experience in detail to anyone and reported feeling very afraid of attending the session. During the session he was both upset and agitated, at one time wanting to run out of the session while upset. He seems to have tendencies to want to escape from things, his work, the army, Rachel and therapy…”
[18]The claimant subsequently attended a further seven fortnightly sessions with M/s Lillie, but they came to an end on 19 September 1996 when she left the psychology department at the hospital. In her letter to his GP informing him that she had discharged the claimant she said:
“Mr Hibbert was reluctant to verbalise his previous traumatic experiences as he fears he would suffer a complete mental breakdown should he be forced to do this. I therefore felt it would be appropriate to work with his current difficulties which include flashbacks, aggressive outbursts, relationship difficulties, and panic attacks. Mr Hibbert has now developed several coping strategies to deal with his symptoms. These include relaxation, self-talk, exercise, confiding, and cognitive methods to help him cope with his flashbacks. We have also covered some anger management to assist him with his aggressive outbursts.”
[19]In October 1996 the claimant suffered a breakdown and on 16 October was admitted to the Duchess of Kent Military Hospital. He was diagnosed as suffering from resistant PTSD. It was decided “to engage him in psychological treatment using taped imaginal exposure”, and he was assessed as suitable for treatment in the resistant PTSD Group. But due to his avoidant behaviour and anxiety he failed to stay for group therapy, and it became apparent to the treating clinicians that he “was reluctant to continue with military medical treatment.” Despite treatment with antidepressant and tranquillising medication he remained severely ill, and was declared unfit for further military service. On 25 February 1998 he was discharged from the Army on medical grounds, his conduct being recorded as exemplary.[20]On 11 March 1998 the claimant was seen by a consultant psychiatrist at Kidderminster General Hospital, Dr Simon Smith, who diagnosed PTSD together with a degree of depression, but who decided that the claimant would not benefit from referral to a Specialist Centre for PTSD because he was unable to address the traumatic events to which he had been exposed.[21]The issues Broadly stated the issues are (1), whether Dr Baggaley was negligent in relation to the consultation on 12 May, (2), whether he was negligent in relation to the further consultation on 8 June, and if negligent in relation to either consultation, what would the outcome have been had he treated the claimant with reasonable care.[22]There is no issue between the parties as to the law. To succeed in his claim the claimant must establish that on the balance of probabilities Dr Baggaley fell below the standard accepted by a reasonable and responsible body of military psychiatrists, see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and Bolitho v City of Hackney Health Authority [1998] AC 232, and paragraph 2D4d of my generic judgment in Multiple Claimants and Ministry of Defence [2003] EWHC/1134 (QB).[23]The 12 May consultation The claimant’s case as pleaded in the Amended Particulars of Claim is in essence that Dr Baggaley was negligent in that he: i) Failed to recognise and/or diagnose the claimant’s PTSD, ii) Failed to make a proper assessment of the claimant, iii) Failed to provide any or any proper treatment, iv) Failed to make any or any proper arrangement to review the claimant, with the consequence that his PTSD became entrenched and resistant to treatment.[24]His case was refined in the course of the hearing, and in particular in the final submissions advanced by Mr Mansfield QC for the claimant. He submitted that: i) the claimant was then probably suffering from PTSD, ii) Dr Baggaley should in the circumstances have taken longer in consultation with the claimant and/or arranged a follow up appointment, and should not simply have relied upon the claimant referring himself if necessary, iii) Dr Baggaley should not have discounted PTSD as the diagnosis, iv) Dr Baggaley further erred in that he a) Failed clearly to decide what treatment the claimant needed. b) Failed to spell out clearly to the claimant the risk involved in not undergoing treatment at that stage. c) Failed to advise the military authorities that the claimant should not be returned to operational tours without first being referred to a medical officer, and that they needed to keep a close eye on the claimant less his condition should deteriorate. d) Gave the wrong message to the claimant and to the military authorities, namely that the claimant was not ill, and was not suffering from a psychiatric disorder. v) If Dr Baggaley had made the correct diagnosis, and instituted the appropriate treatment, there was likely to have been a positive and beneficial outcome.[25]The first question in relation to 12 May is whether the claimant has established that he was then probably suffering from PTSD. If so, then the question is whether Dr Baggaley was in breach of his duty of care to the claimant in failing to make such a diagnosis. In that event it will be necessary to consider as a matter of causation what treatment he would have instituted had he made such a diagnosis (see Bolitho), and what the outcome of such treatment would probably have been. But resolution of the issue of whether the claimant was then suffering from PTSD is not determinative of the issue of negligence on 12 May. If I am not satisfied that Dr Baggaley ought to have made a diagnosis of PTSD on the symptoms with which the claimant was then presenting, it is necessary to go on to consider whether Dr Baggaley’s response to such symptoms fell within an acceptable range of responses, i.e. a range acceptable to a reasonable and responsible body of military psychiatrists. If it did not, then it is necessary to consider what his response ought to have been, and the probable outcome had that been his response.[26]At the relevant time the diagnostic criteria for PTSD used by Dr Baggaley were those set out in DSM III R. They are in the following terms:a. A. The person has experienced an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone, e.g., serious threat to one’s life or physical integrity; serious threat or harm to one’s children, spouse, or other close relatives and friends; sudden destruction of one’s home or community; or seeing another person who has recently been, or is being, seriously injured or killed as the result of an accident or physical violence.b. B. The traumatic event is persistently re-experienced in at least one of the following ways:(1) Recurrent and intrusive distressing recollections of the event…(2) Recurrent distressing dreams of the event(3) Sudden acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucination, and dissociative (flashback) episodes, even those that occur upon awakening or when intoxicated)(4) Intense psychological distress at exposure to events that symbolize or resemble an aspect of the traumatic event, including anniversaries of the traumac. C. Persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness (not present before the trauma), as indicated by at least three of the following: i) Efforts to avoid thoughts or feelings associated with the trauma ii) Efforts to avoid activities or situations that arouse recollections of the trauma iii) Inability to recall an important aspect of the trauma (psychogenic amnesia) iv) Markedly diminished interest in significant activities… v) Feeling of detachment or estrangement from others vi) Restricted range of affect, e.g., unable to have loving feelings vii) Sense of foreshortened future, e.g., does not expect to have a career, marriage or children, or a long lifed. D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by at least two of the following: i) difficulty falling or staying asleep ii) irritability or outbursts of anger iii) difficulty concentrating iv) hypervigilance v) exaggerated startle response vi) physiologic reactivity upon exposure to events that symbolize or resemble an aspect of the traumatic event…” In making his diagnosis a clinician would be concerned both as to the presence of such symptoms and as to their severity. (1) Recurrent and intrusive distressing recollections of the event… (2) Recurrent distressing dreams of the event (3) Sudden acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucination, and dissociative (flashback) episodes, even those that occur upon awakening or when intoxicated) (4) Intense psychological distress at exposure to events that symbolize or resemble an aspect of the traumatic event, including anniversaries of the trauma i) Efforts to avoid thoughts or feelings associated with the trauma ii) Efforts to avoid activities or situations that arouse recollections of the trauma iii) Inability to recall an important aspect of the trauma (psychogenic amnesia) iv) Markedly diminished interest in significant activities… v) Feeling of detachment or estrangement from others vi) Restricted range of affect, e.g., unable to have loving feelings vii) Sense of foreshortened future, e.g., does not expect to have a career, marriage or children, or a long life i) difficulty falling or staying asleep ii) irritability or outbursts of anger iii) difficulty concentrating iv) hypervigilance v) exaggerated startle response vi) physiologic reactivity upon exposure to events that symbolize or resemble an aspect of the traumatic event…”[27]Before considering the evidence as to whether the claimant was suffering from PTSD on 12 May, there are a number of preliminary points to be made. First it is necessary to guard against retrospection. It is common ground that when admitted to the Duchess of Kent Military Hospital in October 1996 the claimant was suffering from PTSD. But it is a condition that fluctuates, and it cannot be assumed from his condition in the Autumn of 1996 that he was suffering from PTSD in May 1994.[28]Secondly no contemporaneous clinical notes of the consultation can be found. That puts both claimant and defendant at an obvious disadvantage, the claimant because of the absence of the contemporary note as to his presenting symptoms, Dr Baggaley as he has no real recollection of the events, occurring as they did some 14 years ago, independent of the documentary evidence. That said he wrote to the referring MO, Major Cross, on the same day. The letter is set out in full at paragraph 8 above. It must have been written or dictated within hours of the consultation which took place in the early afternoon. Dr Baggaley gave evidence that it was his usual practice to make a contemporaneous note of a consultation. I am satisfied that it is probable both that he made such a note, and that the letter to Major Cross was produced by reference to that note. Also missing are the CAPS (Clinical Administered PTSD Scale) questionnaire that Dr Baggaley says that he would have used as an aide to diagnosis, and the F Med 8 from the claimant’s commanding officer at Crossmaglen that would have accompanied the referral by Major Cross. As to the CAPS questionnaire, Dr Baggaley’s evidence was that it was his practice to complete such a questionnaire, that he was “almost certain” that he had done so in this case, but that “without it in front of me I can’t be absolutely confident.” I accept his evidence and am satisfied that he conducted the consultation by reference to the CAPS questionnaire.[29]Thirdly there are conflicts between the evidence given by the claimant and by Dr Baggaley as to what actually happened at the consultation. Before examining such conflicts there are two points to be made. First it was accepted by Mr Mansfield that the claimant’s perception of events may have been affected by his condition at the time. I agree, but would add that it is likely further to have been affected by the subsequent deterioration in his condition. I also accept that as was submitted on behalf of the defendant, the claimant has shown a marked antipathy to Dr Baggaley which may have distorted his recollection of the consultation. It was most vividly demonstrated by his evidence as to an encounter with Dr Baggaley at Catterick in February 1997. He said that he was called into Dr Baggaley’s office. Dr Baggaley was behind the desk and there were three other doctors in the room, one standing either side of him and one standing behind him in front of the door and blocking his way out. He gave evidence that Dr Baggaley told him in a “very hostile” way that it was “my fault that he had not made the correct diagnosis three years ago”, and in his witness statement asserted that Dr Baggaley told him that he had lied to him when he had examined him in May 1994. The claimant also said in his witness statement that “I fear that if I tell any doctors about Major Baggaley and what he did to me in the army, that they would immediately start to turn on me too”. In cross-examination he maintained that the account he had given of what had happened was accurate – “yes it happened just like that”. There is no reference to such a confrontation in any of the medical records. That is perhaps not surprising if an encounter as described by the claimant took place. But more importantly it has never formed part of the pleaded case against the Defendant, either in the Statement of Claim served in 1999 or in the Particulars of Claim served in November 2006, a surprising omission if in fact it did take place. That inevitably raises a question mark as to the claimant’s reliability as a witness.[30]So far as Dr Baggaley is concerned, given the period that has elapsed since the consultation, his evidence is inevitably a reconstruction based on his letter to Major Cross, his report to the claimant’s CO on the F Med 8a, and on his evidence as to what his practice would then have been. Mr Mansfield submitted that such a reconstruction is equally inevitably justificatory, and should be approached with considerable caution. The force of his argument was demonstrated by the evidence given by Dr Baggaley in cross-examination to the effect that one of the factors influencing his decision as to the management of the claimant was the expected transfer to the supportive environment of the AYT. But there is no evidence to suggest that he had any knowledge of such a move before he saw the claimant again on 8 June. As Mr Mansfield submitted, that clearly illustrated the dangers of a retrospective reconstruction of events. I am satisfied that I can place reliance on the reports to Major Cross and to the CO, written as they were on the day of the consultation; but I accept that evidence unsupported by contemporary documentary material should be approached with caution.[31]The most significant conflict is in relation to whether or not Dr Baggaley offered the claimant the opportunity to talk about his experiences in Bosnia, and Dr Baggaley’s written comment that the claimant was unhappy and reluctant to do so. When the claimant saw Dr Daly in 2005 the claimant is reported to have said “Mr Hibbert told me that his recollection is such that he could not contradict the statement of Major Baggaley’s records that he offered him the opportunity to talk about his Bosnian experiences but that he was unhappy and reluctant to do so.”[32]In his witness statement made three years later the claimant took a different stance. At paragraphs 53-57 he commented on Dr Baggaley’s letter to Major Cross and in particular the passage in the letter stating that “You could make an argument that he should be given time and opportunity to talk about what he has been through to try and make sense of it. I offered this to him but he was very unhappy and reluctant to do so”, saying: “This is simply untrue. I can recollect what Major Baggaley said to me at the time. He said, “Corporal Hibbert, I do not think that there is anything wrong with you but I am not sending you back to Northern Ireland””.[33]In his oral evidence the claimant stated that he had a “clear recollection to an extent” of the consultation. He maintained his position that Dr Baggaley had not offered him the opportunity to talk about what he had been through, and said that Dr Baggaley told him that he did not want to see him again.[34]I am satisfied that the claimant’s statement to Dr Daly in 2005 reflected the true position, namely that he is not able to contradict the contemporaneous note. I have no doubt that Dr Baggaley did offer him “time and the opportunity to talk about what he has been through and to try and make some sense out of it”, as recorded in his report to Major Cross and to the claimant’s CO.[35]There were a number of other conflicts of evidence: i) The claimant said that the consultation was “rushed” and “lasted no more than 20 minutes.” Dr Baggaley’s evidence was that it lasted about an hour. I am satisfied that given the detail contained in the report to Major Cross, Dr Baggaley’s evidence, albeit a reconstruction, is likely to be more reliable. As he commented in cross-examination, it would have been remarkable if he had been able to obtain all the information summarised in the report in 20 minutes. ii) The claimant said that Dr Baggaley told him “there is nothing wrong with you but I am not sending you back to Northern Ireland”. Dr Baggaley was emphatic that he did not tell the claimant that “there is nothing wrong with you”. I accept his evidence. Such a statement would have been inconsistent with the contemporaneous record and his ‘treatment plan’. I also accept Dr Baggaley’s explanation, namely that he would probably have sought to explain to the claimant that what he had suffered was an understandable and common reaction, and that it was a problem that could be dealt with and overcome. iii) The claimant challenged whether Dr Baggaley made notes during the consultation. As I have already indicated (see paragraph 28 above) I am satisfied both that he made a contemporaneous note, and conducted the consultation by reference to the CAPS questionnaire. iv) The claimant denied that Dr Baggaley asked him about his consumption of alcohol, whereas Dr Baggaley’s evidence was that he would have asked the claimant about it. There is no reference to excessive drinking in Dr Baggaley’s report to Major Cross; but it was the claimant’s evidence that it was only after this consultation that he began to drink excessively. In those circumstances the absence of any reference to alcohol consumption in the report is readily explicable, and does not demonstrate that Dr Baggaley’s evidence is to be rejected. I accept Dr Baggaley’s evidence that he would have asked about his alcohol consumption, a conclusion supported by my findings as to the other conflicts between them. v) The claimant had no recollection of telling Dr Baggaley that he was quite happy although Dr Baggaley wrote in the report “he tells [me] he is actually quite happy at the moment”. I have no doubt that the report accurately records what took place. vi) The claimant denied that the report was accurate when it recorded “His view he said is that he has had one operational tour too many and further he hasn’t had enough time to readjust following come back from Bosnia”. He was adamant that he did not say that he had one operational tour too many. Dr Baggaley explained that it was possible that he recorded that as being the claimant’s view following a discussion on the issue, and accepted that the words may have come from him. I find that it is likely that the phrase emanated from Dr Baggaley, but that it was accepted by the claimant as reflecting his situation.[36]I turn then to consider the evidence as to the claimant’s condition prior to, and at the consultation on 12 May 1994. Such evidence can conveniently be considered under the following heads: i) the claimant’s condition between the exposure to traumatic events in Bosnia and his subsequent posting to Northern Ireland. ii) the evidence as to his breakdown in Northern Ireland. iii) the evidence as to his condition on 12 May.[37]The evidence as to the claimant’s condition between the exposure to traumatic events in Bosnia and his subsequent posting to Northern Ireland. The claimant says that he did not experience any psychological symptoms whilst in Bosnia, but that they emerged when he returned to normal life and normal duties. He says that when he returned he began to experience psychological problems, but at the time did not understand what was wrong with him. He was drinking alone in his room, something that he had not previously done. He would become argumentative with colleagues and with his girlfriend, and ended a two year relationship with her because he wanted to be left alone. He felt isolated because nobody around him had witnessed what he had experienced in Bosnia, and in the summer of 1993 began to experience nightmares on a regular basis relating to events witnessed in Bosnia, and experienced flashbacks about some of the same incidents.[38]There is also evidence from the claimant’s mother and his sister as to this period, neither of whose evidence was challenged. His mother says that “… there was an obvious and drastic change in his personality following his return”. But she then goes on to say that it was on his return from Northern Ireland when she met him at East Midland airport that she was shocked at his condition. “He was a shadow of himself and the person that I had known afew months before.” She was therefore contrasting his condition following the breakdown in Northern Ireland with his condition in the period between his return from Bosnia and the posting to Northern Ireland. His sister, Susan Ward, gives very similar evidence in her witness statement. She describes normal experiences with him and friends, but continues “this completely changed in Spring 1994. For reasons which I did not know until recently I understand that Stephen had experienced traumatic experience in Bosnia. Without a doubt his behaviour changed from Spring 1994 onwards. He became totally distant, very withdrawn and unsocial.”[39]The referral by Major Cross (see paragraph 7 above) provides corroboration for the evidence given by the claimant’s mother and sister. She recorded the claimant as saying that:
“He thought that he coped with it (the exposure to traumaticevents in Bosnia) very well and that it wasn’t a problem … I feel this man is suffering from PTSD which has reared its head when he has been put in another situation where being mortared is a likely proposition. (on reconnaissance patrol in Crossmaglen).”
Similarly on 24 January 1996 the claimant’s GP recorded “Anxiety and feeling scared started on second tour of Ulster” (see paragraph 15 above for the full note).[40]The claimant’s tour of duty in Bosnia was from 12 Nov 1992 to 15 May 1993. His annual report for April 1992 to March 1993 contained the following assessment:
“Performed very well, depth of trade knowledge and military skills combine to make him a very flexible member of the platoon. Capable of completing most tasks to a very high standard. During OP GRAPPLE proved an excellent example to all by exhibiting determination, enthusiasm and a general ability to get things done. A no-nonsense leadership style that has gained a great deal of respect. His only weakness is his current physical fitness. A good year.”
The next annual report for the year March 1993 – March 1994 was in similar terms, but although dated 6 June 1994, made no reference to his breakdown in Northern Ireland. As Mr Mansfield observed in his final submissions, it was signed by Major Field of 1 WFR; but as the claimant had only rejoined 1 WFR at the end of 1993 there was in effect a gap in the records from 21 February 1993, the date on which the previous annual report was signed off, and December 1993. I accept his submission that little reliance is to be placed upon that report.[41]Thus whilst I accept that the claimant was to some extent suffering from some psychological symptoms, in particular nightmares and flashbacks, and that as a consequence of such symptoms his relationship with his girlfriend had come to an end and he had begun to drink more heavily, it does not appear that there was a major change in his behaviour before the tour of duty to Northern Ireland.[42]The evidence as to the breakdown in Northern Ireland I have summarised such evidence at paragraph 6 above. It is clear that the claimant rapidly became severely dysfunctional. His condition was such that he was removed from the field of operations by helicopter, disarmed and sent for medical attention. It is also clear that it was the prospect of leading men on patrol in Crossmaglen that triggered the onset of markedly more severe symptoms relating to Bosnia. As the claimant himself put it in evidence, such was his state of distress in Northern Ireland that he was unable to stop ‘blurting out’ events in Bosnia. In relation to the deployment to Northern Ireland the said “things came into my head that weren’t there before – I thought everything would stop when I went back to England”.[43]The evidence as to the claimant’s condition on 12 May 1994 As to the evidence given by the claimant, he said in his witness statement that he was fidgeting a lot in the course of the examination and that he talked a lot about Bosnia “… a lot of rambling talk”. He says that he felt distressed and uncomfortable, that he talked a lot to Major Baggaley about the distressing events he had witnessed in Bosnia, and told him that when he returned from Bosnia he “… began to feel different in my mindbut matters did not come to a head until my second Northern Ireland tour inMarch 1994.” In the course of his oral evidence he said that he did not tell Dr Baggaley that he was suffering from nightmares and flashbacks, as he had not asked about them.[44]In his oral evidence Dr Baggaley said that he had no real recollection of the consultation and that his evidence was based on his report to Major Cross. He said that his assessment of the claimant would have been based on what Major Cross had said in the F Med 7, on the F Med 8A, which would have contained the commanding officer’s observations, and on his examination. In his witness statement he said that he would specifically have asked the claimant about his symptoms by reference to the DSM III R diagnostic criteria, and that it is highly probable that he structured his consultation by reference to the CAPS questionnaire. He says that he would have asked about any traumatic experiences, and that is confirmed by the claimant’s evidence. He says that he would then have considered whether there were category B symptoms, i.e. nightmares, intrusive and distressing thoughts, flash backs and associated psychological arousal, category C symptoms, i.e. not wanting to talk about the traumatic event, not wanting to be reminded of it, being socially withdrawn and losing interest in the future, and finally category D symptoms, i.e. poor sleep and concentration and feelings of anger.[45]Dr Baggaley accepted in the course of cross-examination that at the time he was satisfied that there had been exposure to events in Bosnia that satisfied category A, and that the claimant was a genuine patient who had been significantly affected by his exposure to such traumatic events. He agreed that Major Cross’ record that “He (the claimant) describes vividly putting bodies in the back of an APC, being mortared and not being able to retaliate in any way” could be a pointer to category B symptoms. As to category C he agreed that the claimant was exhibiting avoidance in his reluctance to talk about his experiences in Bosnia, and both in wishing to return to England from Northern Ireland and in wishing to leave the army. He also accepted that the claimant’s changed outlook on life was a pointer to category C symptoms. As to category D, he accepted that the fidgeting described by the claimant could amount to arousal, a category D symptom.[46]Thus in summary he accepted that Criterion A was satisfied, and that symptoms consistent with Criteria B, C and D were present. It follows that his rejection of a diagnosis of PTSD was based on his assessment of the severity of the presenting symptoms, rather than the absence of such symptoms. It was his clinical judgment that “…there was not a sufficiently serious range of experiences to amount to PTSD”, “I’m confident he did not have PTSD as defined (in DSM III R)”[47]In assessing the reliability of Dr Baggaley’s clinical judgment as to the severity of the presenting symptoms it is necessary to consider his clinical experience. He joined the Army in 1981 having studied medicine at St. Bartholomew Hospital London. His training as a psychiatrist began in 1997. In 1991 he became a lecturer in military psychiatry, and in 1993 Senior Lecturer at the Royal Army Medical College at Millbank. As a lecturer in military psychiatry he was involved in training doctors joining the Army in the basics of military psychiatry on the Post Graduate Medical Officers Course. The course focused on Combat Stress Reaction also known as Acute Stress Reaction (see paragraph 4.14 of my judgment in the trial of the generic issues), and the relationship of such disorders to PTSD. In 1993 Dr Baggaley was appointed a consultant Army psychiatrist and in early 1995 became Officer Commanding the psychiatric division at Queen Elizabeth II military hospital at Woolwich. In the course of operation GRAPPLE he made several visits to Bosnia, giving support to Community Psychiatric Nurses and giving advice to Regimental Medical Officers as to the treatment of symptoms following the exposure of troops to traumatic events. Dr Baggaley gave evidence in the course of the trial of the generic issues, and his witness statement, which stood as his evidence-in-chief, gave an outline of his experience of PTSD. In this trial he gave evidence that he had seen a lot of people coming back from Bosnia “less cases of full blown PTSD, quite a lot of cases of adjustment disorder – some symptoms of PTSD but not enough to satisfy the full diagnosis of PTSD”. In short by May 1994 Dr Baggaley had developed a specialist interest in ASR and in PTSD, and was experienced in the diagnosis of such conditions by reference to the DSM III M criteria, and in their treatment.[48]The expert evidence as to the claimant’s condition on 12 May In his report of 29 February 2008 Dr Oscar Daly, the consultant psychiatrist called on behalf of the claimant, said at paragraph 13.9:
“However, the observations documented by Major Baggaley are, in my opinion, suggestive of an individual troubled by distressing memories of quite horrific experiences about which the individual was doing his best to avoid contemplation. His plans to leave the army could also certainly be considered as avoidance behaviour, and the changed outlook in life is in keeping with the phenomenon of loss of permanence. Taken together, I believe that these phenomena, identified by Major Baggaley, are certainly suggestive of post-traumatic stress disorder. Even if Mr Hibbert did not appear to meet the criteria for PTSD, I feel that the correspondence from Major Baggaley certainly reflects a consultation with a man significantly affected psychologically.”
[49]In the course of his evidence in chief he said:
“From my reading of the documentation it would appear to me that there were many symptoms identified that could have been indicative of possible PTSD”
His conclusion in relation to the evidence available from the contemporary records is that it was at least suggestive of PTSD and “in hindsight based on the material now available makes it the probable diagnosis”.[50]The qualified terms in which he expressed his conclusions, both in his report to the court and in evidence, were taken up by Mr Jay in cross-examination. Dr Daly agreed that it was possible that the claimant might well not have had PTSD at that stage, but added that that was a very small possibility. Reminded of his use of the phrase “suggestive of PTSD” to describe the “phenomena” identified by Dr Baggaley (see paragraph 48 above), he agreed that on the basis of the correspondence between Dr Baggaley and Major Cross, he could not be certain that the claimant was suffering from PTSD. That was an inevitable conclusion given his evidence that “there were many symptoms identified that could(my underlining) have been indicative of PTSD”.[51]Dr Neal was the consultant psychiatrist called on behalf of the defendant. It was submitted on behalf of the claimant that there was a question mark over his impartiality given that he had been a colleague of Dr Baggaley at Catterick. I am entirely satisfied that Dr Neal was giving his evidence in an objective and independent manner, conscious of his obligations to the court.[52]In paragraph 42.2 of his report dated 10 July 2007 Dr Neal expressed the following view:
“In my opinion, in Bosnia in 1993 he witnessed severe traumatic events, which caused symptoms of PTSD and low mood. These symptoms have subsequently fluctuated in intensity. At times of marked stress the symptoms intensify and at times of reduced stress they resolve. For example, on operational service in Northern Ireland, in 1994 they intensified but on his return to the UK they appeared to resolve. These symptoms could be conceptionalised as an Adjustment Reaction at times of increased stress.”
At paragraph 4.1 he explained his terminology:
“It should be noted that an adjustment reaction is often used as the default diagnosis when there are symptoms of post-traumatic stress but they are insufficient to meet the diagnostic criteria for PTSD. Adjustment reactions usually resolve spontaneously once the stressor has been removed and in this case the stressor was operational service in Northern Ireland. ”
[53]In the course of his oral evidence Dr Neal advanced an adjustment disorder as his retrospective diagnosis of the claimant’s condition in May 1994. That was challenged by Mr Mansfield on the basis that an adjustment disorder by definition lasts no more than 6 months, and that the exposure to traumatic events occurred during the claimant’s tour of duty in Bosnia which was between November 1992 and May 1993. But it was the posting to Northern Ireland in March 1993 that triggered the onset of markedly more severe symptoms. As the claimant himself said, it was at that point that “things came into his head that weren’t there before”. Dr Daly accepted in cross-examination that it was the deployment to Northern Ireland that triggered the PTSD symptoms, or led to a deterioration of symptoms already present. He also accepted that sub-clinical PTSD could be described as an adjustment disorder “the question is how long symptoms last”. If the onset of the clinically significant symptoms was provoked by the resumption of operations in Northern Ireland, as I am satisfied that it was, then at the date of the consultation, they were within the time scale for an adjustment disorder, and the objection to such a diagnosis falls away.[54]When considering the claimant’s condition in May 1994 it is also relevant to bear in mind that in February 1996 the claimant was seen by a civilian consultant psychiatrist, Dr J. Robertson (see paragraph 15 above). In his report to the claimant’s GP Dr Robertson set out the history that he elicited from the claimant before concluding that he did not meet the full criteria for PTSD. He noted that that was what the Army psychiatrist, Dr Baggaley, had already told the claimant; and it was suggested on behalf of the claimant that that was likely to have influenced Dr Robertson in his conclusion. I am not persuaded by that argument. In my judgment it is highly unlikely that in making his clinical judgment, a consultant psychiatrist, having taken a full history from the claimant, would have been influenced by what the patient reported to him that he had been told by an Army psychiatrist two years earlier, not least because, as Dr Robertson must have been aware, the symptoms of PTSD can fluctuate. Thus whilst his consideration and rejection of a diagnosis of PTSD in February 1996 does not prove that the claimant was not suffering from PTSD in May 1994, it does provide support for the view taken by Dr Baggaley that the symptoms with which he presented in May 1994 did not meet the full diagnostic criteria.[55]Conclusion Mr Mansfield submitted that logically there are three possibilities as to the claimant’s condition on 12 May, that he was suffering from PTSD, that there were symptoms suggestive of PTSD but at a sub-clinical level, and thirdly that, per Dr Neal, he was suffering from an adjustment disorder. He further submitted that Dr Neal’s conclusion cannot be correct, and that so far as the claimant’s case was concerned, it matters little whether the claimant was suffering from PTSD or from symptoms suggestive of PTSD at a sub-clinical level. Mr Jay QC for the defendant put it somewhat differently. He submitted that a formal diagnosis in relation to such conditions may be elusive. It is but a label attached to a cluster of symptoms of varying severity and duration. He submitted that if I am not satisfied that the formal diagnostic criteria for PTSD were then met, the label to be attached the claimant’s condition is not of great significance. The question is whether Dr Baggaley was negligent in his assessment of the presenting symptoms, and in his decision as to the management of such symptoms. In my judgment Mr Jay’s submission is well founded. If I am satisfied that the claimant was suffering from PTSD, then I have to consider whether Dr Baggaley was in breach of his duty of care in failing to make that diagnosis or rather in discounting it as the diagnosis. If I am not, then the question is whether Dr Baggaley was in breach of his duty of care in the decision that he made as to management of the symptoms with which the claimant presented.[56]I am not persuaded that the claimant was then suffering from PTSD. In arriving at the conclusion that he probably was, Dr Daly was paying regard to the presenting symptoms recorded by Dr Baggaley, but disregarding his clinical judgment as to the severity of such symptoms. Dr Baggaley was experienced in the diagnosis and treatment of PTSD. As is clear from his report to Major Cross, he considered such a diagnosis, and in particular whether the symptoms satisfied the diagnostic criteria in DSM III R. There is nothing in his record of the symptoms that undermines his conclusion, arrived at in the exercise of his clinical judgment, that they did not satisfy the diagnostic criteria. Nor is that record inconsistent with the other evidence as to the claimant’s condition at that stage, or with the evidence as to what transpired at the consultation. It was also consistent with his record of the consultation on 8 June (see paragraph 13 above).[57]In my judgment the claimant was then suffering from symptoms that could be described as suggestive of PTSD at a sub-clinical level, or to use the phraseology preferred by Dr Neal, an adjustment reaction, using the term as defined in paragraph 4.1 of his report (see paragraph 51 above).[58]The allegations as to breach of duty The claimant’s failure to establish on the balance of probabilities that he was suffering from PTSD at the time of the consultation on 12 May 1994, disposes of the criticisms that Dr Baggaley failed to diagnose PTSD or erroneously discounted it as a diagnosis.[59]The finding also disposes of the criticism made in relation to the length of the consultation. The criticism made by the claimant is that Dr Baggaley failed to elicit a sufficient range and/or severity of symptoms due to the limitations on an assessment imposed by a one-hour consultation; and Dr Daly expressed the view that it would have been dangerous to rule out PTSD on a single one hour consultation. But the criticisms are based on the assumption that had had the consultation lasted longer, Dr Baggaley would have elicited symptoms that would have resulted in a diagnosis of PTSD, or at least in the conclusion that such a diagnosis could not have been excluded. Given my finding as to the claimant’s condition at that date, that is not an assumption that can be made.[60]But the remaining criticisms must be considered. There is some overlap between them, but I propose to consider them individually. Mr Mansfield submitted that even if the symptoms of PTSD were sub-clinical, there were still sufficient grounds to require a scheduled review; and Dr Neal accepted in the course of his evidence that with hindsight it probably would have been beneficial to review the claimant in three months time. But the question is whether in all the circumstances Dr Baggaley’s response to the presenting symptoms fell within an acceptable range. The first point to be made is that it is clear from the last sentence of the report to Major Cross that Dr Baggaley considered arranging a review. Secondly he suggested a review before the claimant was again deployed operationally, and in my judgment it was reasonable for him to act on the premise that his suggestion would be followed, and therefore to have resulted in a review before any possible exposure to the stress of an operational posting, such as that which had triggered the onset of clinically significant symptoms. Thirdly the claimant had been prepared to seek medical help, and could reasonably have been expected to do so again if his symptoms deteriorated, as in fact happened in October 1996. Dr Baggaley also took into account his experience that the usual course of post-traumatic symptoms was a natural recovery, and that the claimant told him that he was “actually quite happy at the moment”. In those circumstances I accept the evidence of Dr Neal that Dr Baggaley’s response was appropriate and acceptable. I do not consider that he was negligent in failing to make arrangements for a review.[61]In fact the opportunity for a review presented itself when Dr Baggaley saw the claimant on 8 June in the context of the possible posting to the AYT. According to his report (see paragraph 13 above), he found no evidence of significant PTSD on that occasion. The claimant was “particularly bright and breezy. He was very cheerful … there was noabnormality in elevation of mood or anything like that.” He found that the claimant was not suffering from any form of psychiatric disorder other than a changed attitude to life and in particular to the army. I accept that record as an accurate account of the claimant’s condition at that point; and in those circumstances I am satisfied that even if Dr Baggaley had arranged a follow up appointment, it would not have made any difference to the outcome, in that it would not have resulted in a different diagnosis or in a different approach to the management of the claimant’s case.[62]The claimant further contends that Dr Baggaley failed clearly to decide what treatment he needed. The decisions that Dr Baggaley took as to how to manage the symptoms with which the claimant was presenting can clearly be discerned from his reports to Major Cross and to the claimant’s CO. There were three elements to it namely: i) that the claimant should not be returned to Northern Ireland ii) that he claimant should be reviewed before again before being deployed operationally iii) the offer of “… time and the opportunity to talk about what he has been through to try and make some sense of it.”[63]The first and second limbs addressed the trigger to the claimant’s breakdown in March 1994, namely the operational tour of duty in Northern Ireland. As to the third there was argument in the course of the trial as to whether it amounted to treatment, but in my judgment the label to attach to it is of not great significance. The question is whether it was an appropriate response to the symptoms with which the claimant was presenting. As Dr Baggaley said in evidence “the claimant clearly had a problem, the question was what to do about it.” It is clear that at that stage the claimant did not want to talk about his experiences to Dr Baggaley, although he had done so to some degree to Major Cross. Dr Baggaley gave evidence that at that stage he felt that to force treatment would have been unhelpful and counter-productive. His report records that had the claimant been suffering from ‘markedly florid symptoms’, he would have been more aggressive in pressing the option, but did not consider that that would have been appropriate given the claimant’s decision that he did not want to talk about it, and that he was ‘actually quite happy at the moment’. He further said that in his experience such problems settle more often than not. I accept the evidence from Dr Neal that Dr Baggaley’s approach was acceptable, and did not fall below a standard acceptable to a reasonable and responsible body of psychiatric opinion.[64]The claimant also criticises the decision to leave it to the claimant to seek further assistance if the problems recurred. As to that there are two points to be made. First the claimant had shown that he was prepared to access appropriate medical care. Secondly and as Dr Baggaley said in evidence, in the supportive service environment he would have expected any problems to be picked up, and thirdly in any event he had made the recommendation for a review before a further operational posting. Again I am satisfied that that his approach was reasonable, and did not fall below an acceptable standard.[65]Dr Baggaley is further criticised for giving the wrong message to the claimant and to the military authorities, namely that he was not ill and was not suffering from a psychiatric disorder. Dr Baggaley referred in the course of his evidence to the stigma attached to psychiatric illness or disorder in the armed forces (see also my findings in the generic judgment, paragraph 6.6). He was understandably reluctant to attach such a label to the claimant, but made it clear in his report to the CO that although the claimant was not exhibiting any florid symptoms of PTSD, he had been profoundly affected by his experience in Bosnia, and that although his motivation and resolve might possibly recover with the passage of time, the probability was that he would leave the Army. As he put it in evidence, he was trying to reassure the CO that the claimant was not mad, but had been through difficult experiences. He did not want medically to downgrade him because of the stigma attached to psychiatric illness or disorder. Dr Daly said that he “wouldn’t be happy with that – if he continued to suffer problems they needed to be communicated to the CO”. But in my judgment that view fails to take sufficient account of the military environment. The report alerted the CO to the problem without tarring the claimant with the brush of the label of a psychiatric illness or disorder. In my judgment that was an acceptable and appropriate response.[66]The related criticism is that Dr Baggaley failed to advise the military authorities that the claimant should not be returned to operational tours without first being referred to a medical officer, and that they needed to keep a close eye on him in case his condition should deteriorate. As Dr Baggaley explained in the course of his evidence, short of changing the claimant’s medical categorisation, he could not give directions as to where he could or could not serve. In the report to the CO he expressed the view that the claimant should not return to Northern Ireland “on this tour”, and expressed a guarded prognosis as to recovery of his motivation and resolve. Secondly his report to Major Cross on his F Med 7 said that the claimant should not return to Northern Ireland “for this tour”, expressed the possibility that in six months to a years time he might be able to do an operational tour, but suggested a review prior to that taking place. That record would have accompanied the claimant, and again in my judgment was an appropriate and acceptable response.[67]As to the criticisms that Dr Baggaley failed to spell out clearly to the claimant the risk involved in not undergoing treatment at that stage, and that he gave him the wrong message namely that he was not ill, there is a conflict of evidence, the claimant asserting that Dr Baggaley told him that he was not ill, whereas Dr Baggaley says that he would have said something like ‘you’re profoundly affected by the experience in Bosnia and it would be helpful to talk it through’. He explained that he would find a form of words to explain why help was required, and that that would depend upon the responses of the individual. He would normally say ‘you have been a through a dehumanising experience altering your view of life and the army. What we found is helpful is the opportunity to talk it through and make sense of it’. I accept that it is probable that he said something along those lines, and that that was an appropriate and acceptable response.[68]In conclusion, and on the basis that the claimant has not proved that he was suffering from PTSD on 12 May, I do not consider that there was any culpable want of care on the part of Dr Baggaley.[69]The consultation on 8 June 1994. The claimant’s case as to 8 June is that it was another lost opportunity, i.e. a lost opportunity to make a diagnosis of PTSD or to initiate an appropriate treatment plan. There is no evidence of a material deterioration in the claimant’s condition between 12 May and 8 June. On the contrary the claimant’s condition appeared to have improved. This was not therefore a lost opportunity to diagnose PTSD. Secondly nothing in the record of the consultation in the F Med 7a (see paragraph 13), can be said to have indicated a need for a change in his management of the claimant. In my judgment there was no culpable breach of duty on that occasion.[70]OUTCOME Given my findings as to breach of duty the claim must fail; and it is not necessary to go on to consider the outcome had treatment been initiated in May/June 1994. But I propose nevertheless shortly to summarise my conclusions on that issue.[71]My conclusions as to treatment in the trial of the generic issue provide the framework within which to address the question. I summarised those conclusions in my judgment in the related case of West v Ministry of Defence at paragraphs 23/24 in the following terms: i) “There was a clear consensus amongst experts, based on clinical experience, that the earlier the intervention, the more beneficial the outcome is likely to be. (13.43) ii) Whatever the treatment, treatment gains are at best modest. (13.44) iii) CBT was likely to have been an effective treatment for combat related PTSD. (13.58) iv) Treatment of combat related PTSD with SSRI’s is likely to have been effective. (13.64) v) The degree to which any individual would have benefited from treatment will necessarily depend upon the nature, severity and chronicity of the condition. (13.65)”[72]Had the claimant been diagnosed as suffering from PTSD in May/June 1994 then it is reasonable to assume that the treatment that would have been offered would have involved CBT possibly in conjunction with drug therapy, i.e. would have been closely similar to the treatment that the claimant underwent in 1996/1997 following his admission to the Duchess of Kent military hospital, treatment that Dr Daly accepted was appropriate. The question then is what the likely outcome would have been?[73]It is the claimant’s case that there were a number of positive prognostic features at May 1994, namely: i) some problems had been present for, at worst, a year, ii) the crisis had only occurred 6 weeks earlier, iii) he was a good soldier who had suffered an acute breakdown, iv) there was no pre-existing vulnerability, v) self-medication with alcohol was at a relatively early stage, vi) co-morbid depression had not then developed, vii) the Claimant had sought help from his CO, and on referral from Major Cross and Dr Baggaley. It is further submitted on behalf of the claimant that he was then ready and willing to engage in treatment. He wanted to be helped and he believed he was going to be helped. He did not want just to talk his past experiences through – he wanted to understand what was happening to him, to be treated and to get better.[74]I accept that those amounted to positive prognostic indicators, but against that the claimant was unable to tolerate imaginal exposure during his course of treatment in 1996/1997. As he said he hated his experiences at Catterick. That does not of itself mean that he would not have been amenable to such treatment in 1994; but there is clear evidence that he could not tolerate exposure therapy at any point. I bear in mind that he related his experiences to Major Cross and to Dr Baggaley. But as Dr Neal observed in the course of his evidence, a distinction has to be drawn between avoidance in reporting symptoms and avoidance in discussing the traumatic events. As to the latter, the claimant’s response to Dr Baggaley’s invitation to talk about them was unequivocal. Secondly in March 1996 Dr Robertson concluded that he had “… worked out a strategy for eeking out his days in the Army without being challenged medically …” (see paragraph 16 above). Thirdly and whilst he attended eight sessions with the clinical psychologist, Ms Lillie, she noted in her discharge letter to his GP that he was “reluctant to verbalise his previous traumatic experiences as he fears he would suffer a complete mental breakdown should he be forced to do this.” That limited the assistance that she could offer. He was still unable to address the traumatic events when in March 1998 he was seen by a civilian consultant at Kidderminster Hospital. It is also to be noted that Dr Strauss commented in July 2003:
“One of his major complaints about his contact with military psychiatrists was that they forced him to talk about his experiences and he said that he was not ready and this simply served to accelerate his condition.”
[75]Dr Daly accepted that there was a possibility that he would not have managed to engage in treatment, and as I heard in evidence in the course of the trial of the generic issues, there are some patients who cannot tolerate exposure therapy. In my judgment the probability is that the claimant fell into that group, and given my conclusions as to his ability to tolerate exposure therapy, I reject Dr Daly’s conclusion that it was more likely than not that he would have recovered had treatment been initiated in May/June 1994. In my judgment it is unlikely that treatment at that stage would have been anymore successful than that undergone by the claimant in 1996/7.[76]PROSPECTS OF PROMOTION The defendant now accepts that had the claimant been cured from whatever his condition was in 1994, and had such a condition never returned, then on the balance of probabilities he would have been promoted to the rank of corporal by 1995/1996. I am also satisfied that in those circumstances it is probable that he would have been promoted to sergeant by 2000/1, and to colour sergeant by 2004. It is possible that he would have been promoted to WO2 before his service came to an end in 2008, but on the evidence I am not persuaded that that was a probability.[77]Sadly the claimant’s condition has now become entrenched. On this aspect of the case I accept Dr Daly’s evidence that it is now unlikely to remit to any material degree. The consequence is that I do not consider that there is any realistic prospect of his obtaining remunerative employment.[78]Conclusion One cannot but have the greatest sympathy for the claimant who loyally served his country, earning respect for his determination, enthusiasm leadership on operational tours of duty in Northern Ireland and Bosnia. He is now suffering from a severely disabling psychiatric condition for which the prognosis is very poor. But sadly he is the victim of the stresses to which serving soldiers on operational tours of duty can be exposed, not to any culpable want of care on the part of the defendant. His claim must be dismissed.